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Y4.J89/2: . g ^^^ io3-l03l, Pt. 3
2T!!!!J^FIRMATION HEARINGS
TWTEDERAL APPOINTMENTS
HEAKINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY
MARCH 25; APRIL 21, 22, 29; MAY 12 AND 25, 1994
Part 3
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
U.S. GPO
MAR I 51996
nEPOSlfORY DOC
/£5/<>A
S. Hrg. 103-1031, Pt. 3
CONHRMATION HEARINGS
ON FEDERAL APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY
MARCH 25; APRIL 21, 22, 29; MAY 12 AND 25, 1994
Parts
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
bOSTON PUBLIC LIBf^ArtY ^^
GOVERNMENT DOCUMENTS DEPARTMENT
."'ECEIVED
FEB 2 4 2000
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For sale by the U.S. Government Printing Office
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ISBN 0-16-052259-5
COMMITTEE ON THE JUDICIARY
JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts
HOWARD M. METZENBAUM, Ohio
DENNIS DeCONCINI, Arizona
PATRICK J. LEAHY, Vermont
HOWELL HEFLIN, Alabama
PAUL SIMON, IlUnois
HERBERT KOHL, Wisconsin
DIANNE FEINSTEIN, CaUfomia
ORRIN G. HATCH, Utah
STROM THURMOND, South Carolina
ALAN K. SIMPSON, Wyoming
CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania
HANK BROWN, Colorado
WILLIAM S. COHEN, Maine
LARRY PRESSLER, South Dakota
CAROL MOSELEY-BRAUN, IlUnois
Cynthia C. Hogan, Chief Counsel
Catherine M. Russell, Staff Director
Mark R. Disler, Minority Staff Director
Sharon Prost, Minority Chief Counsel
(II)
,^,/^eU Of J8US MOTSOc
I
/
CONTENTS
HEARING DATES
Page
Friday, March 25, 1994 ,^1
Thursday, April 21, 1994 105
Friday, April 22, 1994 377
Friday, April 29, 1994 511
Thursday, May 12, 1994 665
Wednesday, May 25, 1994 923
FRIDAY, MARCH 25, 1994
Statements of Committee Members
Moseley-Braun, Hon. Carol 1
Simon, Hon. Paul 10
Introduction of Nominees
Feinstein, Hon. Dianne 2
Hutchison, Hon. Kay Bailey 11
Brooks, Hon. Jack 11
de la Garza, Hon. E (prepared statement) 12
Moseley-Braun, Hon. Carol 12
Testimony of Nominees
Audrey Collins, Los Angeles, CA, to be U.S. District Judge for the Central
District of California 4
Questioning by:
Senator Moseley-Braun 4
Qp»-jof Qj" SoGctcr
Fortunate Benavides, Austin, TX, to be U.S. Circuit Judge for the Fifth
Circuit 15
Questioning by:
Senator Simon 15
Scnstor SoGctcr -^^
Ruben Castillo, Chicago, IL, to be U.S. District Judge for the Northern
District of Illinois 18
Questioning by:
Senator Simon 1°
Alphabetical List and Materl^l Submitted
Benavides, Fortunate:
Testimony 15
Questionnaire 53
Castillo, Ruben:
Testimony 18
Questionnaire 81
Collins, Audrey:
Testimony 4
Questionnaire 21
(III)
IV
Page
Simon, Hon. Paul:
Letter from J. Eugene Balloun, Law Offices of Shook, Hardy & Bacon,
P.C, Overland Park, KS, Mar. 1, 1994 17
THURSDAY, APRIL 21, 1994
Statement of Committee Member
Kohl, Hon. Herbert 105
Introduction of Nominees
Pell, Hon. Claiborne 107
Chafee, Hon. John 107
Nunn, Hon. Sam 108
Coverdell, Hon. Paul 110
Lewis, Hon. John 110
Glenn, Hon. John 112
Metzenbaum, Hon. Howard M 112
Johnston, Hon. J. Bennett 113
Prepared statement 113
Breaux, Hon. John B 114
Jefferson, Hon. William J 115
Fields, Hon. Cleo 116
Testimony of Nominees
Carl E. Stewart, Shreveport, LA, to be U.S. Circuit Judge for the Fifth
Circuit 117
Questioning by:
Senator Kohl 117
Senator Thurmond 119
James Carr, Toledo, OH, to be U.S. District Judge for the Northern District
of Ohio 120
Questioning by:
Senator Kohl 120
Senator Thurmond 122
Clarence Cooper, Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 123
Questioning by:
Senator Kohl 124
Senator Thurmond 125
Frank M. Hull, Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 127
Questioning by:
Senator Kohl 127
Senator Thurmond 128
Mary M. Lisi, Providence, RI, to be U.S. District Judge for the District
of Rhode Island 129
Questioning by:
Senator Kohl 130
Senator Thurmond 131
W. Louis Sands, Macon, GA, to be U.S. District Judge for the Middle District
of Georgia 132
Questioning by:
Senator Kohl 132
Senator Thurmond 134
Ai.piiABETiCAL List and Material Submitted
Carr, James:
Testimony 120
Questionnaire 167
Cooper, Clarence:
Testimony 123
Questionnaire 220
V
Page
Hull, Frank M.:
Testimony 127
Questionnaire 251
Kohl, Hon. Herbert:
Letter to Hon. Joseph Biden, U.S. Senate, Washington, DC, from the
Law Firm of Fortunato & Tarro, Warwick, RI, Mar. 15, 1994 106
Letter from E. Michael McCann, district attorney. Office of District Attor-
ney, Milwaukee County, Milwaukee, WI, Apr. 18, 1994 120
Lisi, Mary M.;
Testimony 129
Questionnaire 301
Sands, W. Louis:
Testimony 132
Questionnaire 332
Stewart, Carl E.:
Testimony 117
Questionnaire 137
FRIDAY, APRIL 22, 1994
Statements of Committee Members
Feinstein, Hon. Dianne 377
Hatch, Hon. Orrin (prepared statement) 377
Introduction of Nominees
Moynihan, Hon. Daniel Patrick (prepared statement) 378
Norton, Hon. Eleanor Holmes 378
Feinstein, Hon. Dianne 379
Testimony of Nominee
Michael R. Bromwich, to be Inspector General, U.S. Department of Justice 380
Questioning by:
Senator Feinstein 381
Alphabetical List and Material Submitted
Bromwich, Michael R.:
Testimony 380
Questionnaire 384
Feinstein, Hon. Dianne:
Letters in support of Michael R. Bromwich from:
1. Law enforcement — U.S. Attorneys Office for the Southern District
of New York:
Rudolph W. Giuliani, Mar. 10, 1994 454
Stuart E. Abrams, Feb. 10, 1994 455
Bruce A. Baird, Feb. 23, 1994 457
Charles M. Carberry, Feb. 24, 1994 458
John K. Carroll, Feb. 22, 1994 459
Alan M. Cohen, Mar. 7, 1994 460
Denise Cote, Feb. 16, 1994 462
Rhea Kemble Dignam, Feb. 14, 1994 464
Jess Fardella, Feb. 11, 1994 466
Maria T. Galeno, Feb. 23, 1994 468
Helen Gredd, Mar. 28, 1994 470
Howard E. Heiss, Feb. 18, 1994 471
Mark R. Hellerer, Feb. 14, 1994 472
Annmarie Levins, Feb. 24, 1994 474
Edward J.M. Little, Feb. 22, 1994 476
Roanne L. Mann, Feb. 15, 1994 477
Aaron R. Marcu, Feb. 22, 1994 479
Shirah Neiman, Mar. 1, 1994 481
Benito Romano, Feb. 23, 1994 482
Peter J. Romatowski, Feb. 11, 1994 483
BartM. Schwartz, Feb. 14, 1994 485
VI
Page
Feinstein, Hon. Dianne — Continued
Letters in support of Michael R. Bromwich from — Continued
1. Law enforcement — U.S. Attorney's Office for the Southern District
of New York — Continued
Linda C. Severin, Mar. 7, 1994 487
Paul Shechtman, Feb. 15, 1994 489
2. Iran-Contra Counsels:
Richard W. Beckler, Feb. 17, 1994 491
David P. Doherty, Mar. 14, 1994 492
Earl C. Dudley, Jr., Mar. 2, 1994 493
Leonard Garment, Feb. 14, 1994 495
Thomas C. Green, Feb. 22, 1994 496
N. Richard Janis, Feb. 15, 1994 497
3. Federal judges:
Robert L. Carter, Feb. 18, 1994 499
Morris E. Lasker, Feb. 16, 1994 501
Stanley Sporkin, Feb. 14, 1994 503
4. Other Government officials:
Kenneth I. Juster, Feb. 14, 1994 505
Terry F. Lenzner, Feb. 21, 1994 506
Herbert J. Stem, Feb. 14, 1994 507
Geoffrey S. Stewart, Feb. 25, 1994 508
Dan K. Webb, Feb. 17, 1994 510
FRIDAY, APRIL 29, 1994
Statement of Committee Member
Metzenbaum, Hon. Howard M 511
Introduction of Nominees
Glenn, Hon. John 511
Mo)Tiihan, Hon. Daniel Patrick 512
D'Amato, Hon. Alfonse M. (prepared statement) 513
Boren, Hon. David L 513
de Lugo, Hon. Ron 515
Prepared statement 517
Hodge, Hon. Derek M 518
Hodge, Hon. Verne 521
Testimony of Nominees
Robert Henry, Oklahoma City, OK, to be U.S. Circuit Judge for the Tenth
Circuit 522
Questioning by:
Senator Metzenbaum 522
Deborah Batts, New York, NY, to be U.S. District Judge for the Southern
District of New York 524
Questioning by:
Senator Metzenbaum 524
Raymond Finch, Kingshill, St. Croix, VI, to be U.S. District Judge for the
District of the Virgin Islands 527
Questioning by:
Senator Metzenbaum 527
Solomon Oliver, Jr., Cleveland Heights, OH, to be U.S. District Judge for
the Northern District of Ohio 531
Questioning by:
Senator Metzenbaum o<jO
Al.PHABETICAL LiST AND MATERIAL SUBMITTED
Batts, Deborah:
Testimony 524
Questionnaire 581
Finch, Raymond:
Testimony 527
VII
Page
Finch, Rajmiond — Continued
Questionnaire 607
Henry, Robert:
Testimony ^^-^
Questionnaire 535
Hodge, Derek M.:
List of visiting U.S. district court judges to the U.S. Virgin Islands,
1989-94 519
OUver, Solomon, Jr.:
Testimony 531
Questionnaire 631
THURSDAY, MAY 12, 1994
Statement of Committee Member
Heflin, Hon. Howell 665
Introduction of Nominees
Boren, Hon. David L 665
Nickles, Hon. Don 667
Wofford, Hon. Harris 668
Specter, Hon. Arlen 669
Norton, Hon. Eleanor Holmes 670
Hutchison, Hon. Kay Bailey 671
Brooks, Hon. Jack 672
Andrews, Hon. Michael A 673
Prepared statement 673
Testimony of Nominees
Theodore McKee, of Pennsylvania, to be U.S. Circuit Judge for the Third
Circuit 674
Questioning by:
Senator Heflin 675
Billy Michael Burrage, of Oklahoma, to be U.S. District Judge for the North-
em, Eastern, and Western Districts of Oklahoma 677
Questioning by:
Senator Heflin 677
Vanessa Gilmore, of Texas, to be U.S. District Judge for the Southern District
of Texas 679
Questioning by:
Senator Heflin 679
Terry C. Kern, of Oklahoma, to be U.S. District Judge for the Northern
District of Oklahoma 681
Questioning by:
Senator Heflin 681
Gladys Kessler, of the District of Columbia, to be U.S. District Judge for
the District of Columbia 683
Questioning by:
Senator Heflin 684
Emmet Sullivan, of the District of Columbia, to be U.S. District Judge for
the District of Columbia 686
Questioning by:
Senator Heflin _686
Alphabetical List and Material Submitted
Burrage, Billy Michael:
Testimony 677
Questionnaire 724
Gilmore, Vanessa:
Testimony 679
Questionnaire 764
Kern, Terry C:
Testimony 681
VIII
Kern, Terry C. — Continued
Questionnaire 797
Kessler Gladys:
Testimony 683
Questionnaire 833
McKee, Theodore:
Testimony 674
Questionnaire 688
Sullivan, Emmet:
Testimony 686
Questionnaire 888
By-Laws of Lawyers' Club of Washington, Nov. 8, 1974, amended
May 20, 1982 (section 5) 918
WEDNESDAY, MAY 25, 1994
Statement of Committee Member
DeConcini, Hon. Dennis 923
Introduction of Nominees
Sarbanes, Hon. Paul S 924
Hutchison, Hon. Kay Bailey 925
Brooks, Hon. Jack 926
Mikulski, Hon. Barbara 926
Levin, Hon. Carl 927
Riegle, Hon. Donald W., Jr. (prepared statement) 928
Conyers, Hon. John, Jr 929
Collins, Hon. Barbara-Rose 930
Norton, Hon. Eleanor Holmes 931
Boxer, Hon. Barbara 932
Simpson, Hon. Alan K 933
Wise, Hon. Robert E., Jr 935
Testimony of Nominees
Diana G. Motz, Baltimore, MD, to be U.S. Circuit Judge for the Fourth
Circuit 936
Questioning by:
Senator DeConcini 936
Senator Simpson 938
Robert Manley Parker, Tyler, TX, to be U.S. Circuit Judge for the Fifth
Circuit 936
Questioning by:
Senator DeConcini 937
Senator Simpson 941
Ricardo M. Urbina, Washington, DC, to be U.S. District Judge for the District
of Columbia 943
Questioning by:
Senator DeConcini 942
Senator Simpson 951
Richard A. Paez, Los Angeles, CA, to be U.S. District Judge for the Central
District of California 943
Questioning by:
Senator DeConcini 942
Senator Simpson 951
Denise Page Hood, Detroit, MI, to be U.S. District Judge for the Eastern
District of Michigan 944
Questioning by:
Senator DeConcini 942
Senator Simpson 951
Paul L. Friedman, Washington, DC, to be U.S. District Judge for the District
of Columbia 944
Questioning by:
Senator DeConcini 942
Senator Simpson 950
IX V
Page
William F. Downes, Casper, WY, to be U.S. District Judge for the District
of Wyoming r 945
Questioning by:
Senator DeConcini ^.T:..; 942
Senator Simpson 952
Alphabetical List and Material Submitted
DeConcini, Hon. Dennis:
Letter in support of Mr. Downes from Mike Sullivan, Governor, and
Kathy Karpan, secretary of state. State of Wyoming, Office of the
Governor, Cheyenne, WY, May 25, 1994 949
Downes, William F.:
Testimony 945
Questionnaire 1226
Letter to Chairman Biden in response to Senator Metzenbaum's written
questions, Casper, WY, June 7, 1994 1290
Friedman, Paul L.:
Testimony 944
Questionnaire 1138
Hood, Denise Page:
Testimony 944
Questionnaire 1113
Motz, Diana G.:
Testimony 936
Questionnaire 955
Paez, Richard A.:
Testimony 943
Questionnaire 1075
Parker, Robert Manley:
Testimony 936
Questionnaire 1004
Urbina, Ricardo M.:
Testimony 943
Questionnaire 1039
ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS
Batts, Deborah, New York, NY, to be U.S. District Judge for the Southern
District of New York 524
Benavides, Fortunato, Austin, TX, to be U.S. Circuit Judge for the Fifth
Circuit 15
Bromwich, Michael R., to be Inspector General, U.S. Department of Justice .... 380
Burrage, Billy Michael, of Oklahoma, to be U.S. District Judge for the North-
ern, Eastern, and Western Districts of Oklahoma 677
Carr, James, Toledo, OH, to be U.S. District Judge for the Northern District
of Ohio 120
Castillo, Ruben, Chicago, IL, to be U.S. District Judge for the Northern
District of Illinois 18
Collins, Audrey, Los Angeles, CA, to be U.S. District Judge for the Central
District of California 4
Cooper, Clarence, Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 123
Downes, WiUiam F., Casper, WY, to be U.S. District Judge for the District
of Wyoming 945
Finch, Raymond, Kingshill, St. Croix, VI, to be U.S. District Judge for the
District of the Virgin Islands 527
Friedman, Paul L., Washington, DC, to be U.S. District Judge for the District
of Columbia 944
Gilmore, Vanessa, of Texas, to be U.S. District Judge for the Southern Dis-
trict of Texas 679
Henry, Robert, Oklahoma City, OK, to be U.S. Circuit Judge for the Tenth
Circuit 522
Hood, Denise Page, Detroit, MI, to be U.S. District Judge for the Eastern
District of Michigan 944
Hull, Frank M., Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 127
\ X
r Page
Kern, Terry C, of Oklahoma, to be U.S. District Judge for the Northern
District of Oklahoma 681
Kessler, Gladys, of the District of Colujnb^a, to be U.S. District Judge for
the District of Columbia .<:: 683
Lisi, Mary M., Providence, RI, to be U.S. District Judge for the Northern
District of Rhode Island 129
McKee, Theodore, of Pennsylvania, to be U.S. Circuit Judge for the Third
Circuit 674
Motz, Diana G., Baltimore, MD, to be U.S. Circuit Judge for the Fourth
Circuit 936
Oliver, Solomon, Jr., Cleveland Heights, OH, to be U.S. District Judge for
the Northern District of Ohio 531
Paez, Richard A., Los Angeles, CA, to be U.S. District Judge for the Central
District of California 943
Parker, Robert Manley, Tyler, TX, to be U.S. Circuit Judge for the Fifth
Circuit 936
Sands, W. Louis, Macon, GA, to be U.S. District Judge for the Middle District
of Georgia 132
Stewart, Carl E., Shreveport, LA, to be U.S. Circuit Judge for the Fifth
Circuit 117
Sullivan, Emmet, of the District of Columbia, to be U.S. District Judge
for the District of Columbia 686
Urbina, Ricardo M., Washington, DC, to be U.S. District Judge for the Dis-
trict of Columbia 943
NOMINATIONS OF AUDREY COLLINS, TO BE
U.S. DISTRICT JUDGE; FORTUNATO BENA-
VIDES, TO BE U.S. CIRCUIT JUDGE; AND
RUBEN CASTILLO, TO BE U.S. DISTRICT
JUDGE
FRroAY, MARCH 25, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:44 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Carol Moseley-
Braun presiding.
Also present: Senators Simon, Feinstein, and Specter.
OPENING STATEMENT OF SENATOR MOSELEY-BRAUN
Senator Moseley-Braun [presiding]. Ladies and gentlemen, I
want to first thank you for coming this morning. The purpose of
this hearing is the confirmation of Ms. Audrey Collins, Mr. Ruben
Castillo, and Mr. Fortunato Benavides. So we have three judicial
nominees to be heard this morning, and we will start first with Ms.
Collins in Hght of the fact that Senator Feinstein has joined us.
Just by way of explanation for those of you who have not been
through this process as friends or family of the nominees, the Con-
stitution of the United States in article II, section 2, in describing
Presidential power, says that the President of the United States
has the authority to appoint judges. There are a number of other
appointments that he is authorized obviously to make in this sec-
tion, but then it says that he shall have the power, by and with
the advice and consent of the Senate, to make treaties and appoint-
ments.
So we are here as representatives of the Senate in a hearing of
the Senate Judiciary Committee to actually provide our advice and
consent on the nominations as made. Most of the nominees have
been through an already exhaustive process with the Department
of Justice, with the administration, and sometimes back in their
home States, but this is kind of the last leg and that is the good
news for everyone.
After this hearing, should the committee vote to recommend the
nominations, then there is a vote of the full Senate and, in all like-
lihood, I am trusting and hoping with all of you that there are no
glitches between today and that final vote. But that is the section
of the Constitution that gives us the authority and the power to do
what we are doing today, and I am looking forward to chairing as
(1)
much of this hearing as possible. Senator Simon is actually the
chair. He is right now on the Senate floor in the middle of an
amendment debate.
So, with that, as is customary, we will hear first from the Sen-
ators who wish to introduce nominees to the committee. Before we
do start, again, each nominee has completed a detailed question-
naire on his or her qualifications, experiences, finances, and philos-
ophy. The portions of the questionnaires available to the public will
be printed in the record of this hearing. We will also keep the
record open for a limited time just in case members of the commit-
tee would like to submit written questions.
With that, I would like to call Ms. Audrey Collins and Senator
Feinstein to introduce her to the committee.
The Senator from California.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much. Madam Chairman. I
am very pleased to be here today and to introduce to you Audrey
Collins. She is an extremely qualified Los Angeles district attorney
whom I recommended for appointment to the District Court for the
Central District of California.
Audrey Collins is 1 of only 3 assistant district attorneys in the
Los Angeles department of 900 attorneys. That is the largest de-
partment in America and she holds the third highest position in
that department.
Her academic credentials have prepared her well for a distin-
guished legal career. Having won and maintained a 4-year aca-
demic scholarship to Howard University, from which she graduated
Phi Beta Kappa, Ms. Collins spent 7 years as a teacher in Wash-
ington, DC, Indiana, Colorado, and then moved to Los Angeles.
Deciding to pursue a career in law, she entered UCLA Law
School in 1974. Upon graduating, she soon joined the Los Angeles
County district attorney's office, where she has established a strong
reputation among her colleagues and supervisors.
When I was interviewing candidates for the post, I called District
Attorney Gil Garcetti to ask about Audrey's record in the depart-
ment. He gave her an unqualified, enthusiastic endorsement, and
said that the DA's loss would be the region's gain with Audrey
serving on the bench.
For the purpose of this introduction, I would like to focus my re-
marks on her 16-year career in the DA's office, a career that has
been marked by a string of promotions. From 1978 to 1987, the
nominee was deputy DA. In this capacity, she served from 1980 to
1983 when she worked in the consumer and environmental protec-
tion division, where she appeared in civil court frequently.
From 1983 to 1985, she served as grand jury legal advisor, where
she assisted the grand jurors in their role of civil oversight of the
county government. During this time, the grand jury heard some
of the most complex cases ever handled by the district attorney's
office, the Twilight Zone case and the McMartin Preschool Molesta-
tion case.
For 9 years during her tenure as deputy DA, she appeared in
criminal courts regularly. With the exception of her work in the
consumer and environmental protection division and as grand jury
adviser, the nominee focused solely on criminal cases and her
record is quite impressive.
She was sole counsel and successfully tried more thgin 200 cases
to a verdict. These cases included misdemeanor jury trials, mis-
demeanor and felony juvenile adjudications, and felony adult court
and jury trials. The nominee estimates that 90 percent of her cases
were tried before a jury. This type of experience is invaluable as
a judge carefully weighs the facts.
Among her many cases during this period, was, in 1986, People
V. Larry Charles McKiever. This is where the defendant had fire
jumped into a victim's car, forced her from the car, stole her wallet
and drove away, leaving her behind. The defendant was arrested
2 days later while driving the victim's car and charged with kid-
napping and robbery. He was found guilty on all charges and sen-
tenced to State prison for life and a 5-year enhancement for prior
conviction.
Senator Moseley-Braun. I am sorry. Senator. Not being from
California, what is "fire jumped"?
Senator Feinstein. I am sorry; fired and jumped; in other words,
started and jumped.
Senator Moseley-Braun. I am sorry. I thought this was a term
of art with which I was not familiar.
Senator Feinstein. No, no, no.
In 1986, in People v. Anthony Carl Rogers, the defendant cor-
nered the victim, demanded money, £ind struck her in the face
twice when she was too slow in giving him the money. The jury
found him guilty of robbery and he was sentenced to 5 years in
State prison.
There are other cases, as well, and I won't go into them now.
What I want to say that I think is very interesting about this nomi-
nee is when she was in school she originally believed she would
work for defend£ints. She was an intern in the district attorney's
office and, in this internship, encountered victims really for the
first time and realized how many of them were people of color. So
she came to identify with victims.
As part of that, I think in your questioning you will see she has
got a rather interesting approach. In her civic life, she has gone out
of her way to support victims and their rights, to work with them,
to console them, to help them. As she just said to me when we were
informally discussing her record, she said, you know, I have always
viewed that my job as a prosecutor wasn't really just to get a con-
viction; it was to find out what actually happened and what the
truth was and to be fair in that regard. I think that commends her
well for the Federal bench.
Madam Chairman, I recommend to you with great support, inter-
est, and eagerness the nomination of Audrey Collins.
Thank you.
Senator Moseley-Braun. Thank you very much. Senator Fein-
stein.
Ms. Collins, it is now your turn. If you would stand, please, to
take the oath? Do you swear that the testimony that you give in
this proceeding shall be the truth, the whole truth, and nothing but
the truth, so help you God?
Ms. Collins. I do.
Senator Moseley-Braun. Ms. Collins, if any members of your
family are with us today, please feel free to introduce them at this
point.
TESTIMONY OF AUDREY COLLINS, LOS ANGELES, CA, TO BE
U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALI-
FORNIA
Ms. Collins. Thank you. I would like to introduce to the commit-
tee my husband, Tim Collins, who has been my supportive partner
for over 26 years. I could not be here today without him. I would
also like to introduce my son, Tim, Jr., who is now a second-year
law student at Yale, and I am very proud of him. Unfortunately,
my daughter, Rachel, could not be here because she just finished
starring in the school play and that caused her to miss some school
work and I just didn't feel that she could afford to miss any more,
but we are also very proud of her.
Senator Moseley-Braun. Thank you. If you have an opening
statement to make.
Ms. Collins. No, other than to thank Senator Feinstein for rec-
ommending my name to the President and to thank this committee
for scheduling the hearing in such a prompt, expeditious way.
questioning by senator MOSELEY-BRAUN
Senator Moseley-Braun. Well, Ms. Collins, I have, on behalf of
the committee, a few questions for you. There has been a great deal
of attention paid to the Federal courts' increased caseloads and the
resulting problem of docket backlog. This backlog, of course, has
had an adverse effect on litigants before the court and, as Senator
Feinstein pointed out in her eloquent statement regarding your
concern for victims, has had an adverse effect on victims and peo-
ple who are seeking justice.
So the question I have for you is. If confirmed, what steps will
you take to ensure that your docket progresses at as quick a pace
as is fair and reasonable?
Ms. Collins. Your question certainly points out an increasing
problem nationwide, and I know, in the Central District of Califor-
nia. In my reading and preparation, I came across an interesting
statistic. In 1988, 64 percent of the available trial time was used
for civil trials, but in the first 9 months of 1993 that figure of 64
percent had dropped to only 42 percent of the available trial time
was used for civil cases.
This is an extremely serious problem because it goes to the very
heart of the system and possible denial of access of litigants to the
central district. I hope that my experience, both as a prosecutor
and as a manager in the DA's office, will be of assistance if I
should be confirmed, because as a manager, of course, I have had
experience managing diverse bureaus, all of which have competing
and different demands and needs, and one of the things that I have
learned to do is to prioritize and to set timetables and goals.
Specifically, I think it is important for a Federal district court
judge— in addition to all of the other talents which she or he must
possess, it is important for that person to be an active manager,
and one of the things that I would do, and I have already begun
discussing this with Chief Judge Byrne, is to very early delve into
the caseload which I would inherit, learn those cases and become
actively involved in managing them.
This would include such things as setting firm dates for discov-
ery, for pretrial settlement conferences and for trial dates, and, of
course, they would have to be realistic depending on the complexity
of the case, but to set firm dates and then stick to those. I would
also, as everyone in the central district does now, have mandatory
pre trial settlement conferences, and this is a policy in the central
district.
In addition to the mandatory pretrial settlement conferences
which are in court, I would hope to hold frequent telephonic con-
ferences, and this is one of the new methods that is being employed
in order to assist attorneys in focusing early on the issues that still
divide them and focusing their attention on how they can narrow
those issues. So I would also do that.
Another step that is being taken within the central district is for
the district court judges to go to the chief judge, when necessary,
and ask him to assign complex civil or criminal cases to visiting or
senior judges. I would do that. In addition, I would hope to work
very closely with the magistrates. I understand we have excellent
magistrates in the centr^ district. I have already met with some
of them, and I would hope to work closely with them so that they
could be of assistance especially with discovery and nondispositive
motions in the complex cases.
Senator Moseley-Braun. If confirmed to the Federal bench, you
will face a docket that includes a heavy criminal caseload, as well
as constitutional, employment, and civil rights cases. Certainly, you
have a great deal of experience in criminal matters, but what steps
do you plan to take to familiarize yourself with those areas of the
law in which you may have less experience?
Ms. Collins. First, I have been fortunate in that for about the
past year as assistant district attorney one of my duties has been
to be the top manager in our office in the area of personnel, and
this includes such issues as working with the Americans With Dis-
abilities Act and also working with employees who are being dis-
ciplined, or the recommendation is that they be disciplined, and I
make the ultimate decision as to whether they will be disciplined.
I also deal with all issues of harassment that come through the dis-
trict attorney's office. So, fortunately, I have begun familiarizing
myself already with the law relating to the Americans With Dis-
abilities Act, harassment, and other employment issues.
Since being nominated, I have also begun studying the other
areas which you mentioned, specifically civil rights law and con-
stitutional law. I have also visited already with Chief Judge Byrne,
who has been very helpful in discussing with me caseload and case
procedures.
I have received materials from the Federal Judicial Center and
I am reviewing those, including some videotapes, which are excel-
lent, on topics such as jurisdiction and evidence. I have obtained
the Federal Rules of Civil Procedure and Criminal Procedure and
Evidence, and I am studying those. So I do believe with those
steps, plus the excellent orientation I received yesterday from the
administrative office and my plans to attend a week-long video pro-
gram presented by the Federal Judicial Center, I will be in good
shape to be up to speed if I should be fortunate enough to be con-
firmed.
Senator Moseley-Braun. What would you do if faced with a
ninth circuit precedent that controlled a matter before you but with
which you personally disagreed?
Ms. Collins. Senator, I have a full understanding that, if con-
firmed, it would be my obligation to follow precedent, whether that
be a U.S. Supreme Court or a ninth circuit case, and I would have
absolutely no difficulty in following the doctrine of stare decisis and
following precedent, no matter what my personal opinion might be.
Senator Moseley-Braun. Since graduating from law school, you
have worked at the Los Angeles district attorney's office first as a
litigator and then as an administrator. You have also been involved
in a number of professional organizations and have a record of
doing pro bono assistance in the community at large. In what way
do you feel these experiences have prepared you to serve as a Fed-
eral district court judge?
Ms. Collins. That is an interesting question because I feel I
have learned different things and I have gained different skills
from each of those experiences and opportunities, although there is
some overlap. As a prosecutor — and all of my litigation is in the
area of prosecution — as a prosecutor, of course, first of all, I have
learned criminal law, criminal procedure, and evidence, and as I
have begun my study of Federal criminal law and evidence, I am
happy to be reminded how similar the Federal and the California
statutes are. So, that certainly has been a good preparation for me,
should I be confirmed.
I have also learned, of course, how the system works, and al-
though there are some differences between the State and the Fed-
eral system, I think that much of this will be transferrable. I have
learned how to try a case and I think, if confirmed, it is very help-
ful as you see a case unfolding before you for you to see if there
are any problems ahead that you might recognize and be able to
help the attorneys to solve.
More importantly — and I think I have an idea, as I said, of how
the system works — over 90 percent of the cases, criminal or civil,
never go to trial. They are settled, and it is important to under-
stand that actually that is a fairly cooperative process between the
prosecution and the defense, and the judge sometimes is involved —
sometimes in the State system is involved, sometimes is not. But
it is important to have an understanding of how all the elements
of the criminal justice system have to work together to make the
system work, and I will bring that experience to bear if I am fortu-
nate enough to be confirmed.
One very important thing that I bring is something that the Sen-
ator mentioned in her remarks, and that is a sensitivity to all of
the parties in the system. I think I was certainly well aware from
law school of the rights of the defendant and of how respectful the
system is of those, but it wasn't until I joined the district attorney's
office as a summer law clerk that I became sensitized to then needs
of the victims. I have worked with that throughout my career, first
in the courtroom in making sure the courtroom was a comfortable,
accessible place for victims, who were often elderly, often people of
color and who really appreciated and enjoyed working with some-
one who was sensitive and accommodating to their needs.
As an administrator, I have continued this work because I have
been the administrator in charge of the victims and witnesses as-
sistance program which serves that same purpose by making vic-
tims feel comfortable, by providing financial assistance to victims
who have been injured, and there is nothing, I think, more impor-
tant that I have done in my career than to be sensitive to, and ac-
commodating to, and helping the victims of crime.
But probably the most important thing that I have learned and
that I would bring to the Federal bench, if confirmed, is something
else that the Senator mentioned, and it is my knowledge that the
most important thing a prosecutor does is not to obtain convictions.
It is to look for truth and to do justice. Much of the time, after ex-
amining a case, I felt that I did justice by seeking a conviction, but
there were certainly times when I thought that the only way to do
justice was to dismiss all or part of the case, and that core value,
that core thing that I do as a prosecutor to seek justice is, I think,
the same core value that a Federal district court judge has. I, as
a district court judge, would be there to do justice. So those are the
things that I would take from my career as a prosecutor or litiga-
tor.
On the administrative side — I mean, there, I think, is an admin-
istrator in any position. It is a big-picture type of job, and there I
got an idea not just what happens in one courtroom or even in one
courthouse, but what is going on in the entire district attorney's of-
fice, what is going on in the entire criminal justice system, and
even to some extent, as I have struggled with budget, what is going
on in all of Los Angeles County.
I have had to learn to prioritize, to have timetables for all of the
bureaus that I work with, to work with personnel, to work with
needs for space, to work with budget, especially in Los Angeles
County where we simply don't have enough budget dollars to go
around, and I have had to work with the board of supervisors to
try to, as an advocate, seek sufficient funding for the district attor-
ney's office.
I think, again, all of these management skills would be
transferrable to the Federal bench not only in managing the docket
problems that we talked about, but hopefully, if I were there for
a while and got my feet wet, maybe even helping the court overall
and contributing with such issues as budget and space that go on.
The third area which you talked about, which is my work with
pro bono or professional organizations — that has been so important
to me, whether it is going out to a law school and speaking to the
black law students group, whether it is working with the black po-
lice officers association, meeting with gang members in South
Central, which I have been doing recently, or whether it is speak-
ing to California women lawyers on gender bias or my work with
the Committee of Bar Examiners, as well as the other bar that I
have done, because I feel I have gotten so much out of that. I have
felt that I have contributed to the community, I have contributed
to the bar, and not only have I contributed, but I have gotten some-
thing out of that, too, and that is balance, and also coUegiality.
8
I think, if confirmed and I become a Federal court judge, it is
still important to have balance. It is important to give something
back to the community and to the bench and bar, and the
collegiality aspect is extremely important, too, because the bench
can be very isolating, I believe, based on everything I have heard.
And it is important to get out there and meet people that you
wouldn't necessarily have met otherwise, and through my work
with bar associations I have met people well outside not only the
district attorney's office, but outside criminal justice. I have met
civil lawyers through the Committee of Bar Examiners. I have even
met wonderful public members who aren't lawyers, but people who
are giving up their own time from their busy careers — and some of
them are college professors, retired military officers, and here they
are contributing to the legal profession. What a wonderful example
they have set, and meeting these people has been enriching, too,
and continuing this tjrpe of experience, I think, would help to make
me a more balanced and keep me a balanced individual.
Senator Moseley-Braun. We have been joined by Senator Spec-
ter. I have concluded my questions.
Senator Simon, have you any questions?
Senator Simon. I do not. I apologize for getting here late. I want
to thank my colleague for starting the hearing here. I had an
amendment on the floor, which I am pleased was accepted on the
floor, so I had to get here late. I apologize to the nominee. I don't
have any questions at this point.
Ms. Collins. Thank you. I am just pleased, and congratulations
on your success on the floor.
Senator SiMON. Thank you.
Senator Moseley-Braun. Senator Specter.
QUESTIONING BY SENATOR SPECTER
Senator Specter. Why do you want to be a Federal judge?
Ms. Collins. Being a Federal judge, I believe, would offer me the
best opportunity I can think of to serve the residents of the central
district, which is a seven-county district, very diverse, and I have
been in public service ever since I became a lawyer, starting with
legal services, which I worked for for several months, and then
coming to the district attorney's office for the past 16 years. I feel
that I have made real contributions there, but that going to the
Federal district court, if confirmed, would allow me to contribute
even more to the residents who live in this entire area.
It is an opportunity for service that I think will hopefully allow
me to continue to open up and bring more access to the courts,
which is something that I was discussing earlier in the sense of vic-
tims' rights, making the courts more open £ind accessible to victims.
And I think that one of my strengths is that I am good with people,
I am a people person, and that as a Federal district court judge I
can assist with making the courts more accessible, and I think that
will also help in resolving the docket problems.
As I said, I think that I will be a good manager and that I will
be able to easily assume the problems inherent in a crowded docket
and be able to assist with that as the courts are faced with crimi-
nal and civil issues that are really central to our Nation's future.
Senator SPECTER. I note that you were born in Chester, PA.
Ms. Collins. Yes, I was, and then I lived in Yeadon for many,
many years.
Senator Specter. When did you leave Pennsylvania?
Ms. Collins. When I went to college, that is really when I left,
although, of course, I continued to go home for holidays and vaca-
tions, and then when I got married right after graduating from col-
lege, I did not go back to live in Pennsylvania an3rmore. But, you
know, I still miss Pennsylvania, Senator, and the seasons. I truly
do. I love California, but the sameness of the terrain and the sea-
sons often msike me miss Pennsylvania, although I gather from my
mother, who still lives in Lansdowne, that this was a real tough
winter.
Senator Specter. It was. You have served for a long time as a
deputy district attorney in Los Angeles. What sort of work did you
do there?
Ms. Collins. I was privileged to have a great variety of assign-
ments. Due to the size of
Senator Specter. Did you try cases?
Ms. Collins. Oh, yes.
Senator SPECTER. Murder cases?
Ms. Collins. Yes. I also was privileged to be in our one civil divi-
sion, which was consumer and environment.
Senator SPECTER. Do you think it is realistic to have mandatory
life sentences, three strikes and you are out?
Ms. Collins. Well, the legislature has now, as you know, of
course, passed that. It is still also on the ballot in November. We
will see — when you say realistic, I don't know if you are thinking
of the cost aspect of building new prisons.
Senator Specter. What I am thinking about is whether we will,
in fact, get life sentences. My own view, after having experience as
a district attorney, is that justice needs to be individualized and
that whatever you say by way of mandating judges or the system,
the system and judges find a way not to follow the mandate if they
feel it is unfair.
What I have been advocating since I was elected in 1980 is to
try to get realistic rehabilitation for juveniles, first offenders and
second offenders — literacy training and job training — so that they
have a chance. I think that if they fail after a conviction and come
back a second time and have rehabilitation opportunities and fail
and come back on a third offense for violent crime, at that juncture
it is realistic to get a judge to impose a life sentence. But absent
that, I think three strikes and you are out is hollow rhetoric, and
we can mandate all we like, but it will not happen.
I would be interested in your experience, since I note you were
in the district attorney's office for some 16 years. You outrank me
by a couple of years. What do you think?
Ms. Collins. I guess it is really too soon to say. I can tell you
that originally our district attorney, Gil Garcetti, favored a three-
strikes bill that was somewhat more narrowly drawn than the ver-
sion that ultimately passed. But now that that is the law, the ver-
sion that passed, of course, the district attorney's office is commit-
ted to and, in fact, will vigorously enforce it. I think, only having
been in law for a couple of weeks, it is too soon to say.
10
The bill itself, as I understand it — and I have only looked at it
slightly — really removes most of the discretion that judges would
otherwise have. Even the second strike is double the normal term,
and the third strike, which need not be for a serious or violent fel-
ony, then does mandate, as you have stated, life without possibility
of parole.
The district attorney's office, of course, too, is mandated to, and
will, not only file, but file prior felony convictions as required. So
I would anticipate, and I kiiow that there will be legal challenges
to this. It is my understanding that the defense bar is already
planning to, if they have not already, file such challenges. So I sup-
pose it is
Senator Specter. They will probably come right into Federal
court, your Federal court.
Ms. Collins. It is even conceivable that that could be before me,
yes, if I am confirmed.
Senator Specter. Thank you very much. Thank you, Mr. Chair-
man, or Madam Chairmsin, whoever is the chairman.
Senator Moseley-Braun. Well, almost the chairman, just for a
few more seconds.
Thank you very much. Again, this is the last leg of a long process
for you and we are all delighted to see such a stellar nominee com-
ing out of California, but then we would expect nothing less of Sen-
ator Feinstein. Thank you very much, Ms. Collins.
Ms. Collins. Thank you, and it has been a pleasure every step
along the way, and certainly including today. It is an honor. Thank
you very much.
Senator Moseley-Braun. Thank you.
We will now call Ruben Castillo.
Senator SiMON. Well, before we call Mr. Castillo, since Senator
Hutchison and Congressman Jack Brooks are here, why don't we
let them introduce their candidate, and then we will call on Mr.
Castillo.
Senator Moseley-Braun. Since seniority still has a role to play
in this legislative body. Senator Simon is the senior Member from
Illinois and the senior member on this committee, so I am going
to pass the gavel on to him.
OPENING STATEMENT OF SENATOR SIMON
Senator Simon [presiding]. Well, I thank you very much.
We welcome the nominee from the State of Texas, and I don't
know if either of you has a preference
Mr. Brooks. I think we ought to let the distinguished junior
Senator from Texas, the lovely lady from La Margue in my district,
though she be a Republican, introduce first.
Senator Simon. Senator Hutchison, be careful when Jack Brooks
praises you. I have learned that over the years. [Laughter.]
Mr. Brooks. Now, Paul, don't give her all that. Just let her go
on and talk, will you?
Senator SiMON. All right. We are pleased to have you here for
any statement you may make.
11
STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman. I will say that
I appreciate the deference of the dean of the Texas delegation in
Congress. I thought that Ms. Moseley-Braun made a very good
point about seniority, and we are very proud to have Jack Brooks
as the dean. He has represented the district I grew up in for all
of my life, so we have known each other for a long time.
It is my pleasure to be here to introduce you to Pete Benavides.
I have known Pete for a long time. He is the law partner now of
a very good friend of mine, who is also one of the members of my
judicigil advisory committee, Morris Atlas. I was very surprised that
Mr. Benavides decided to go back into the judiciary. He has a long
record of distinguished service as a judge in Hidalgo County, as a
State district judge there, and also served on the State Court of Ap-
peals and the Texas Court of Criminal Appeals.
So he has been in public service all his life and just went into
private practice, and I asked him why he decided to take the oath
of poverty once again and go back into the judiciary, but I am very
pleased that he did because I think he will serve well on the fifth
circuit and I am very proud to be here to support him.
Senator Simon. Thank you very much.
It is a pleasure to welcome Jack Brooks, who is a genuine public
servant and, in addition, an enjoyable guy to be with and work
with. I served with him 10 years in the House. When you refer to
him as the dean of your delegation, I remember Wright Patman.
Things have changed now that you are the dean over there.
Senator HUTCHISON. Does that make you feel old, Mr. Chairman?
Senator Simon. Dean, we welcome you.
STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Brooks. Thank you very much. Senator. I am de-
lighted to be here to introduce Fortunato "Pete" Benavides, a nomi-
nee for the U.S. Court of Appeals for the Fifth Circuit, to my long-
time colleagues in the Senate.
Judge Benavides has had a notable career in the Texas judicial
system, during which he authored more than 500 judicial opinions
in both criminal and civil cases. He has been praised by both the
prosecutors and the defense attorneys for his work, and he is
known for his compassion and fair-mindedness.
He was bom and educated in Texas. Judge Benavides is dedi-
cated to serving the community outside the courtroom as well. This
commitment is highlighted by his establishment, when he was a
county judge, of a center for troubled teenagers. In other words, he
was an early believer in alternative correction, particularly for
young offenders.
I believe that Judge Benavides is well prepared for a position on
the U.S. Court of Appeals and will do an excellent job on the fifth
circuit in New Orleans. His experience will serve this country well.
I would recommend him to you.
Senator SiMON. We thank you. We have a statement also that we
will enter in the record from Congressman de la Garza regarding
you, Judge.
12
[The prepared statement of Mr. de la Garza follows:]
Prepared Statement of E (Kika) de la Garza, a Representative in Congress
From the State of Texas
Mr. Chairman, it is very unfortunate that I cannot be present today to introduce
the Honorable Fortunate "Pete" Benavides who has been nominated by the Presi-
dent for the position of Circuit Judge for the 5th Circuit in Texas. The reason for
my absence is the death of a close and longtime friend which has necessitated my
returning to Texas. Were it not for that I would be with you this morning.
Judge Benavides is someone I have known for many, many years. I think very
highly of him and hold him in the highest regard. I am also fiilly acquainted with
his work. He has had a very distinguished career. Not only is he thoroughly quali-
fied but he has an extiaordinary knowledge which makes him an ideal candidate
for this position.
There are many accolades I could bestow on Judge Benavides but I think his
record speaks for itself. To that I can only add he is truly exceptional. I am proud
to know him and to call him my friend.
Thank you.
Senator SiMON. Judge, we will call on Mr. Castillo and then we
will ask you back — ^you are not going to get off that easily here,
Judge,
Judge Benavides. I understand.
Senator SiMON. But do you have members of your family you
would like to introduce here, or friends?
Judge Benavides. My family wasn't able to come up here. I do
have a cousin that is a doctor at George Washington University
that drove across town, Minerva Gorena, my first cousin, originally
from Edinburg, TX.
Senator SiMON. We welcome you here.
Senator Specter. Chairman Brooks, I said to Senator Simon,
will Chairman Brooks stand for questions? We don't often see you
at a witness table over here.
Mr. Brooks. With a clear conscience, it is no problem.
Senator Specter. I am sorry. I didn't hear you.
Mr. Brooks. I say if you have a clear conscience, it is no worry,
no problem.
Senator Specter. Well, I presume you mean your conscience, not
mine. [Laughter.]
It is a pleasure to see you here, and I will not try any questions
for fear of the response.
It is nice to see you. Senator Hutchison.
Mr. Brooks. Give your wife our best.
Senator Specter. Thank you.
Senator SiMON. We thank you both. Judge, we will excuse you
temporarily.
Judge Benavides. Before they leave, I would like to thank the
Senator and the Congressman for being here and introducing me.
Senator Simon. You are under good auspices.
Mr. Castillo, if you can go up there, we are going to hear from
my colleague. Senator Carol Moseley-Braun here first.
STATEMENT OF HON. CAROL MOSELEY-BRAUN, A U.S.
SENATOR FROM THE STATE OF U^LINOIS
Senator Moseley-Braun. Thank you very much, Mr. Chairman.
I am proud to be here today to introduce Mr. Ruben Castillo, the
nominee for U.S. district court judge for the Northern District of
Illinois. I am even prouder to be able to say that I was able to play
13
a part in selecting this outstanding nominee, and for that I am
eternally grateful to you, Senator Simon. We have, as you know,
a judicial merit selection commission back in Illinois that you es-
tablished, and you were gracious enough to allow me to play a co-
equal part in that process and I am mindful of it and grateful to
you for that.
When Mr. Castillo is confirmed by the U.S. Senate, and I am cer-
tain that he will be, he will become the first Latino Federal judge
in the State of Illinois. The son of immigrant parents — his father,
Ruben, Sr., emigrated from Mexico; his mother. Carmen, from
Puerto Rico — ^Ruben Castillo embodies the American dream. He is
the first member of his family to finish college, and it was his par-
ents who encouraged him to pursue higher education and instilled
in him a love of learning that led him to Loyola University in Chi-
cago.
It was then that he had his first experience with the law, work-
ing nights as a clerk in Cook County Circuit Court to put himself
through school. After graduation from Loyola, Mr. Castillo went on
to Northwestern University School of Law, one of the finest law
schools in the country. I must say there are people on the south
side of Chicago at the University of Chicago who argue that a little
bit, but nonetheless Northwestern is certainly one of the finest law
schools in the country. We are blessed to have a multitude of riches
in that regard in Chicago.
Ruben Castillo started his career in the law with the firm of Jen-
ner & Block which, as you know, is one of the largest, most pres-
tigious firms in Chicago, and in the country indeed, leaving after
5 years there to become assistant U.S. attorney, prosecuting crimi-
nal cases. His involvement, in fact, one case, prosecuting a drug
kingpin, resulted in a contract being placed on his life and he and
his family were forced to receive 24-hour police protection for a
time. Happily, that threat was resolved with no physical harm to
him or to his family.
Mr. Castillo left the U.S. attorney's office in 1988 to serve as di-
rector and regional counsel for the Mexican American Legal De-
fense and Education Fund, known as MALDEF. Under his leader-
ship, MALDEF filed and won a suit challenging the congressional
districts drawn up after the 1990 census. That lawsuit was success-
ful and it resulted in the first majority Hispanic district to be cre-
ated in Illinois, and that, of course, led to the election of Luis
Guttierez, the State's first Latino Congressman. Mr. Castillo head-
ed MALDEF until 1991, when he left to become the first Latino
partner at the prestigious Chicago law firm of Kirkland & Ellis.
I don't want to take up too much of the committee's time in this
regard, but before I conclude I would like to mention just a few of
the charitable activities that Mr. Castillo has devoted himself to
over the years. He is a member of the advisory boards of the Chil-
dren and Family Justice Center of Northwestern University, the
Chicago Legal Clinic, and Business and Professional People for the
Public Interest. He was appointed by Mayor Daly to serve on a
blue ribbon panel to recommend revisions to Chicago's minority
and female set-aside programs, and he is a member of the North-
ern District Court's Civil Justice Reform Act Advisory Group. He
has been awarded the Chicago Bar Association's Maurice Weigle
Award for outstanding service to the legal profession, the Attorney
of the Year Award from MALDEF, and the Community Service
Award by the Latin American Police Association.
Of course, Mr. Chairman, our merit selection committee highly
recommended him. His respect for the law and commitment to pub-
lic service and integrity are noteworthy and were the basis for their
recommendation to us. I am delighted to introduce him to the com-
mittee and to make this nomination.
I believe, as you are well aware, Mr. Chairman, that Ruben
Castillo is an outstanding attorney, one who brings to the bench a
rich history of involvement in the field of public interest law, and
I am proud to introduce him to the committee today and hope that
the Senate will act quickly on his nomination so that he may be
confirmed.
Thank you.
Senator Simon. Thank you. Senator Moseley-Braun. Let me just
add, in the process we had 138 lawyers who applied for the 3 va-
cancies. The commission recommended 10 out of 138. You are talk-
ing about some quality people there. Senator Moseley-Braun and I
interviewed all 10 and made the 3 recommendations.
Not only did you make a good impression on us personally in our
interview, but in informal conversations I had with people, and I
am sure Senator Moseley-Braun had the same experience, people
spoke very highly of you and I was pleased to join my colleague in
sending the recommendation to the Justice Department and the
White House.
I think you have members of your family here with you. Would
you like to introduce them, Mr. Castillo, and any other friends that
you may have here?
Mr. Castillo. Yes, I would. Thank you. Senator. First, I would
like to introduce my wife and life partner, Sylvia Mojica-Castillo;
my daughter, Francisca Castillo; my son, Roberto Castillo; my fa-
ther, Ruben Castillo; my mother. Carmen Castillo; my mother-in-
law, Ramona Mojica; my father-in-law, Felix Mojica; my sister-in-
law. Ester Rodriguez. And I have two good friends, Martin Castro,
who is president of the Mexican American Lawyers Association,
and a former trial partner and colleague of mine from the Justice
Department, Mary Harkenreiter.
Thank you.
Senator SiMON. Well, we are very happy to have all of them here,
and I might add that one of your guests is a brother of a staff
member of mine, which you probably are aware of.
I do have a serious question for those two young people. Are you
skipping school today? [Laughter.]
Mr. Castillo. They refuse to answer that question on the advice
of their counsel. [Laughter.]
Senator Simon. All right. Well, we thank you.
If I could ask both Judge Benavides and Mr. Castillo, if you could
stand and raise your right hands? Do you swear to tell the truth,
the whole truth and nothing but the truth, so help you God?
Judge Benavides. I do.
Mr. Castillo. I do.
Senator SiMON. Under our usual procedure, we would take Judge
Benavides first, but are you leaving now?
15
Senator Moseley-Braun. Thank you, Mr. Chairman. I have to
leave, and in light of the fact that we have already asked the ques-
tions that would be put to Mr. Castillo, I unfortunately will not be
able to put questions to Mr. Benavides. But at the same time, we
have a very busy Senate schedule and I have to get back.
Senator SiMON. All right.
Senator Moseley-Braun. But I know it is being left in great
hands.
Senator SiMON. In that event, I will follow precedent, and the
nominee for the higher court gets precedence over the district
judge, I have to tell you.
Mr. Castillo. I completely understand. Senator.
Senator SiMON. You will get used to that. [Laughter.]
Judge, we are very pleased to have you here as a nominee. I
have looked through your background. I note that, among other
things, you belong to a group in Corpus Christi called the Mus-
tangs. Tell me about the Mustangs. I assume this is not an organi-
zation that discriminates or would in any way disqualify you from
serving on the court of appeals.
TESTIMONY OF FORTUNATO BENAVTOES, AUSTIN, TX, TO BE
U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Benavides. No. I think there are some that might come
from the name Mustangs, and I can assure you that you needn't
worry about that. Actually, the Mustangs of Corpus Christi, to
which I formerly belonged, is a very loose service association. I did
not apply for that position, but you just get asked to join a club
or an association of people that get together, donate food, cook food
and serve food for non-profit educational or charitable organiza-
tions. It owns no facilities, no clubs, no swimming pools, no res-
taurants or dining halls or anything of that nature.
QUESTIONING BY SENATOR SIMON
Senator SiMON. All right. My staff has just handed me a note
that we are going to have a roUcall vote in about 15 minutes, so
I am going to be very brief. That may be a break for both you and
Mr. Castillo here.
Let me ask the question that Senator Specter asked the previous
nominee. Why do you want to become a Federal judge?
Judge Benavides. That is a very good question. Senator. I have
had the good fortune and the honor to have served on various
courts in the State of Texas — county court, district court, court of
appeals, and then on the State's highest court, the court of last re-
sort in criminal matters. I enjoyed the work. I feel competent in
doing that work, and it also provides an avenue for a deep sense
of feeling or commitment that I have toward serving my people, my
community and my country, and it provides just a fantastic avenue
by which I can fulfill that drive or desire, whatever one might call
that.
Senator SiMON. I just received a letter from a Federal judge in
the Central District in Illinois, Judge Harold Baker, who said that
he was going to request to go on senior status, and he says that
as I look for his successor I ought to be looking for someone who,
16
among other things, is sensitive to those less fortunate. I couldn't
agree more. That is one of the things that is important.
Obviously, the law has to be applied regardless, but that sen-
sitivity does make a difference in the kind of judge you are, wheth-
er it is on the court of appeals or a district judge. What in your
background suggests that you have that sensitivity?
Judge Benavides. Well, we can start probably with my father,
who was bom in Mexico and came to this country to work and
fought in World War II and was wounded. It makes it very difficult
to forget your roots when you are still so close to the ground. I have
worked with juveniles, devoted much of my time to working with
children. I have had support in my campaigns from ethnic organi-
zations, from women's organizations.
I am from south Texas, Senator Simon, the deep part of south
Texas, and it is a very political area. It is over 80 percent Hispanic
and politics plays a great part in daily lives. People read the papers
and know who their politicians are and know what the issues are,
and there is always — ^you grow up with the idea of don't forget who
you are, and I don't think that I have forgotten who I am. I don't
think that I can ever forget who I am or where I come from and
the roots that I have.
Senator SiMON. Senator Specter?
QUESTIONING BY SENATOR SPECTER
Senator Specter. You had been a State court judge?
Judge Benavides. Yes, Senator.
Senator SPECTER. And why did you leave that position?
Judge Benavides. Well, if you are talking about the last State
court position, I did not make that decision, Senator. The people of
the State of Texas made that decision when I was on the court of
criminal appeals and I lost a statewide race.
Senator Specter. That probably speaks to your credit. [Laugh-
ter.]
Senator Simon I don't think has lost as many elections as I have,
so he really wouldn't understand it as well as I do.
Senator SiMON: Well, I have experienced that, too.
Senator Specter. That sounds like a solo loss, the way he said
it.
I do not know the details of your judicial service. How long were
you on the State bench?
Judge Benavides. Senator, I was — a little over 15 years. I served
at every level. I was a county court at law judge, which is a trial
court judge for misdemeanors.
Senator SPECTER. From 1981 to 1984?
Judge Benavides. Right. Then I was a district court judge, which
is the highest trial court bench, civil and criminal, and then I was
on the court of appeals in Corpus Christi, which was a direct appel-
late court for civil and criminal cases, for approximately 6V2 years,
and then the court of criminal appeals for almost 2 years, which
was a
Senator Specter. Is that the one that you stood for election and
lost?
Judge Benavides. Yes. That is a court of last resort in criminal
cases.
17
Senator SPECTER. Well, I have seen your electoral process in
Texas and I have wondered about it. The Pennsylvania Supreme
Court has been a source of national and international wonderment
as to what goes on in our court. I hope some day we can take State
court judges out of elective politics.
The fifth circuit certainly is a prestigious and very, very impor-
tant court. With a very limited number of grants of cert, the courts
of appeals have realistically become the court of last resort on mat-
ters of enormous importance.
I received a letter from a high school classmate of mine, an attor-
ney in Kansas, Gene Balloun, which I would like to make part of
the record, Mr. Chairman.
Senator Simon. It will be entered in the record.
[The letter referred to follows:]
Law Offices,
Shook, Hardy & Bacon P.C,
Overland Park, KS, March 1, 1994.
Hon. Arlen Specter,
U.S. Senate,
Washington, DC.
Dear Arlen: The Senate Judiciary Committee will soon be considering the nomi-
nation of F.P. (Pete) Benavides for appointment as a judge of the Court of Appeals
for the Fifth Ciroiit. I would like to give my wholehearted endorsement to Judge
Benavides, and iirge you to support his appointment.
I did not know Judge Benavides until this past year. However, we have both been
representing defendants in some extremely complicated litigation in Texas. As a re-
sult of these encounters, I have had an opportunity to observe his Utigation skills,
demeanor and judgment.
In my opinion. Judge Benavides will make an outstanding appellate judge. He is
well qualified by virtue of his extensive judicial experience. More importantly, he
has the character and temperament to make an outstanding judicial officer.
Judge Benavides did not ask me to write this letter. I called him and offered to
do so, since I have been so impressed with his abilities.
Many thanks for your consideration.
Sincerely,
J. Eugene Balloun.
Senator Specter. Gene has worked with you on a case where
you were working on the same case representing defendants. He
described it as complex litigation, and Gene Balloun is an outstand-
ing man. He and I went to Russell High School together and I was
salutatorian. Do you know what that is?
Judge Benavides. I understand you made some pretty good
grades. Senator.
Senator Specter. Well, salutatorian is second, and I only men-
tion it because Balloun was valedictorian, which is first. So my last
question for you is what kind of a lawyer is Gene Balloun? [Laugh-
ter.]
You don't have to answer that.
Judge Benavides. He is an excellent lawyer.
Senator Specter. Thank you very much. Thank you, IVIr. Chair-
man.
Senator SiMON. Your appearance here evoked the information we
did not have until this point — that Arlen Specter was salutatorian
of his high school class. [Laughter.]
Senator Specter. I don't ordinarily like to admit that, but to fin-
ish second to Balloun is not too bad.
18
Judge Benavides. I will tell him that you said that. We are still
involved in that litigation, by the way.
Senator SiMON. We wish you the very best, judge. Thank you
very much.
Judge Benavides. Thank you.
Senator SiMON. Mr. Castillo? First, I want to mention, Mr.
Castillo, the American Bar Association's Standing Committee on
the Federal Judiciary unanimously gave you a "well qualified" rec-
ommendation, which is — and I don't mean this disrespectfully to
any other nominees — ^but it is exceptional for us to receive that,
and that is to your credit.
Let me ask the question that Senator Specter asked. Why do you
want to become a Federal judge?
TESTIMONY OF RUBEN CASTILLO, CHICAGO, EL, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Mr. Castillo. Well, Senator, in my career I have had the privi-
lege of serving various clients from all walks of life, from some of
the corporate 100 organizations to individuals who had literally no
assets, and I have always enjoyed the role of being the advocate for
those clients, but I really came to a conclusion that I would like
to have only one client from now on, and that client being justice,
per se, and that is why I want to be a Federal district court judge.
I believe that given the variety of litigation assignments and ex-
periences that I have had that that is the best place for me to serve
the country at this point, and I really enjoyed public service from
my 4 years as an assistant U.S. attorney in Chicago.
QUESTIONING BY SENATOR SIMON
Senator SiMON. You served on a group called the Civil Justice
Reform Act Advisory Group.
Mr. Castillo. That is correct, sir.
Senator SiMON. I just read the Wall Street Journal reported on
a case. I know nothing other than the Wall Street Journal article
about this case and I don't mean to comment on the case other
than just to ask a question about what they say. There was a
woman named Irene Geschke who filed a civil lawsuit in the Fed-
eral court in the Northern District in lUinois in 1979. That case
has been continued now for 15 years. Nine scheduled trial dates
have come and gone; 530 motions, hearings, memorandums, and
orders have occurred.
Do we face a special problem in the Northern District of Illinois?
What can we do, and what more specifically can you do as a dis-
trict judge to see that justice is served? For justice to be served also
means it sometimes has to be expedited; you can't have cases going
on for 15 years.
Mr. Castillo. I agree. I am not familiar with that particular
case, but from my work with the Civil Justice Reform Act Commit-
tee in the northern district, we found overall that the court was
functioning pretty well. However, the court has a huge docket, as
you well know. There are over 400 cases per every judge in the
Northern District of Illinois.
What can we do? Our group basically concluded that we need our
judges to become managers of cases, that they have to have effec-
19
tive docket control systems so that a case as you describe — that
type of situation becomes an anomaly and just doesn't recur.
Judges need to know the status of all of their cases and need to
set orders that expedite discovery and lead to a quick resolution of
the case, and identify a case as a potential trial or as a case that
might be resolved somewhat short of a trial.
So what we basically concluded, without getting into all the spe-
cifics of our recommendations, is we want our trial judges to be ac-
tive managers and to get involved in litigation early on; call the
parties in and find out exactly why it was that a complaint was
filed in Federal district court, determine whether or not there is
adequate jurisdiction, and determine where the case is going. Is
this a case that can be resolved short of trial, or if there is going
to be a trial, let us talk about realistic dates to get to that point.
Senator SiMON. Do you think you are a good manager?
Mr. Castillo. I think I am, based on my experiences at
MALDEF and my experiences right now in my firm. I have to man-
age a number of cases, a number of people. I like to be very hands-
on, and I think those attributes will serve me well if I am con-
firmed by the Senate.
Senator Simon. If your son or daughter were to ask you what
makes a good judge, how would you respond?
Mr. Castillo. Well, I would start out with the word "p^itience,"
first, and, second, hard work. And, third, courtesy and civility to
litigants, I think, is especially important. I think every judge
should treat the litigants in their courtroom and the attorneys the
way that he or she would want to be treated if they were appearing
before that judge. I think it is very important that when a litigant
leaves a judge's courtroom, whether or not they win or lose that
case, they feel that they received a fair shake on that day.
Senator SiMON. Senator Specter?
Senator Specter. Picking up for just a moment on your comment
about courtesy, when Senator Thurmond is not able to attend a
nominations hearing, I often ask nominees a question that he
asked in one of the first hearings I attended back in 1982. There
were two Pennsylvanians up for U.S. district court and Senator
Thurmond said, do you promise to be courteous, in his Southern ac-
cent.
I thought to myself, what a meaningless question that is. What
is anybody going to say if you ask them, do you promise to be cour-
teous? Both nominees said yes, and then Senator Thurmond said,
because the more power a person has, the more courteous that per-
son should be.
I will expect the record to reflect the effort at Senator Thur-
mond's dialect. [Laughter.]
I have come to regard that as the wisest thing I have heard in
14 years that I have been here, not that there is much competition
around here for the wisest comment that I have heard. We were
in session yesterday until 3:30 a.m. and last night until 10. We
might not qualify for a position on any bench an5rwhere.
But Senator Thurmond's comment was very, very profound, and
I believe that judges, especially judges with life tenure, tend to for-
get that very fast. There is a leveling influence if you have to run
for election, and I am not suggesting that we change the Constitu-
20
tion to have Federal judges run every 6 years and have Senators
sit for Hfe, but this issue of courtesy is really important, really im-
portant.
I am unhappy with some of the stories I have heard about some
of the people whom Senator Heinz and I recommended. People will
be watching you and the word will get around, so that being cour-
teous is a very, very, very high calling. Understanding the Securi-
ties Act and the antitrust implications and the rule against per-
petuities and the difference between a shifting use and a springing
use are hard to do, but being courteous is something that you can
do, but it takes a lot of concentration.
Mr. Castillo. I completely agree. Senator. I think my mother,
who is here, has taught me the fundamental rule of treating every-
one like you would want yourself to be treated. I think she would
be the first one to remind me if she saw something going on that
didn't stick to that rule.
Senator Specter. OK, but she won't be with you all the time.
[Laughter.]
Mr. Castillo. No, but she is in spirit.
Senator Specter. You are lucky to have her.
Thank you, Mr. Chairman. Thank you. Gk)od luck.
Mr. Castillo. Thank you, Senator.
Senator Simon. We thank you.
Our hearing stands adjourned.
[Whereupon, at 11:47 a.m., the committee was adjourned.]
[Submissions for the record follow:]
21
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATE
COMMITTEE ON THE JUDLCIARY
\
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL IK70RMATI0M (PUBLIC)
1. Full name (include any former names used).
Audrey B. Collins
Maiden neune Audrey Anne Brodie
2. Address: List current place of residence and office address.
Current residence:
Beverly Hills, CA
Work address:
Office of the Los Angeles County District Attorney
18-201 Criminal Courts Building
210 West Temple Street
Los Angeles, CA 90012
3. Date and place of birth.
June 12, 1945
Chester, PA.
4. Marital Status. List spouse's occupation, employer's name
and business address.
Married to Timothy R. Collins since June 30, 1967.
Spouse's occupation: Dentist
Spouse's Present Employer and business address: (8/1990 -
present)
Los Angeles County Department of Health Services
Dr. Ruth Temple Health Center
3834 South Western Avenue
Los Angeles, CA 90062
22
5. Education ; List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Howard University, Washington, D.C.
9/63-6/67
B.A, in Political Science (1967)
American University, Washington, D.C.
9/67-1/69
M.A. in Government and Public Administration (1969)
U.C.L.A. Law School, Los Angeles, CA
9/74-6/77
Juris Doctor (1977)
6. BTn plQvment Record : List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
Summer Clerk, Agency for International Development,
Washington, D.C. 7/67-8/67;
Teacher, Dunbar High School, Washington, D.C. School System,
1/69-6/69;
Substitute teacher, Vigo County, Indiana School System,
9/69-6/70;
Assistant Director, Manual High School-University of
Northern Colorado Model Cities Project, Denver, Colorado,
9/70-9/71;
Substitute teacher at John Adams Junior High School, Los
Angeles Unified School District, 5/72-6/72;
Director, Norman Topping Student Aid Fund, University of
Southern California, 9/72-8/74;
Assistant Attorney, Legal Aid Foundation of Los Angeles,
10/77-1/78;
Deputy District Attorney (Now Assistant District Attorney) ,
Los Angeles County District Attorney's Office, 1/78-present.
As part of my current position as Assistant District
Attorney, I have responsibilities for the Bureau of Crime
Prevention and Youth Services. In this connection, I am an
officer with the following non-profit foundations organized
recently to seek possible private funding for our community
outreach efforts:
Advisor, Special Assistance to Victims in Emergency (SAVE),
a non-profit foundation of the Los Angeles County District
Attorney's Office, 1992-93.
23
Secretary, Los Angeles County District Attorney's Foundation
(non-profit), 1993.
President, Los Angeles County District Attorney's Crime
Prevention Foundation (non-profit), 1993.
Military Service ; Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
No.
8- Honors a nd Awards ; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Honors ;
Langston Bar Association Lawyer of the Year, 1988
Honoree, Howard University Alumni Club of Southern
California, 1989
Woman of the Year, Howard University, 1967
Who's Who in American Colleges & Universities, 1967
Academic Distinctions:
Order of the Coif, 1977
Phi Beta Kappa, 1967
Dean's List, Howard University (1963-67)
Dean's List, American University (1968-1/69)
Four-year Academic Scholarship, Howard University, 1963-67
9' Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Current Bar Associations & Professional S ocieties :
State Bar Committee of Bar Examiners since June, 1991;
Chair, Sub-Committee on Moral Character, 1992-93; Co-Chair,
Sub-Committee on Moral Character, 1993-94
Black Women Lawyers of Los Angeles County
Trustee, Langston Bar Association of Los Angeles
National Bar Association
California Women Lawyers
3
24
Women Lawyers of Los Angeles
Los Angeles County Bar Association
Los Angeles County Bar Judiciary Committee, 1985-present
California District Attorneys' Association
The following are significant oast chairmanships and
memberships on Bar committees, professional societies or
commissions;
Deputy General Counsel, Office of the Special Advisor to the
Los Angeles Police Department Board of Commissioners,
(Hebster-Williiuns Commission) , appointed to investigate the
L.A.P.D. response to the April, 1992 civil disorders in Los
Angeles, 1992
Los Angeles County Bar Board of Trustees, 1989-91
- Member, Los Angeles County Bar Judicial Appointments
Committee, 1988-91
Member, Los Angeles County Bar Litigation Section, Inn of
Court, 1990-91
Chair, Executive Committee, State Bar Criminal Law Section,
1987-88; Advisor to the Executive Committee, 1988-90
Member, Executive Committee, Los Angeles County Bar
Association Delegation to the State Bar Annual Meeting,
1986-89
Chair, Los Angeles County Bar Criminal Justice Section,
1986-87
»«
President, Association of Los Angeles County Deputy District
Attorneys , 1984
10. Other Memberships ; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
I believe the following organizations to which I belong
lobby before the California State Legislature;
State Bar of California (mandatory bar association) ; Los
Angeles County Bar Association; California District
Attorneys Association; California Women Lawyers; Women
Lawyers of Los Angeles; National Bar Association; Parent-
Teacher Association. To the best of my knowledge, I do not
26
belong to any other orqanizations, with the exception of the
additional Bar associations listed in the response to /9.
11. Court Admission ; List all coiurts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
California Bar, 12/1977
United States District Court, Central District of
California, 4/20/1982
12. Published Writings ; List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
I am enclosing three articles which I wrote in 1987, 1988,
and 1990, respectively, for newsletters published by the
State Bar of California. Two were written in 1987 and 1988
for Criminal Law News in my capacity as Chair of the State
Bar Criminal Law Section. The third article appeared in the
August, 1990 issue of The Minority Lawyer , published by the
State Bar's Ethnic Minority Relations Committee.
13. Health ; What is the present state of your health? List the
date of your last physical examination.
Excellent. My most recent physical examination was on
August 6, 1993.
14. Judicial Office ; State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
None.
15. Citations ; If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
26
appellate opinions where yoiir decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions.
Not applicable.
16. Public Office ; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
I 2UD a member of the California State Bar Committee of Bar
Examiners, a position to which I was appointed by the State
Bar Board of Governors.
In 1992, I was also appointed as a Deputy General Counsel to
the Office of the Special Advisor to the Los Angeles Police
Department (LAPD) Board of Commissioners (Webster-Williams
Commission) , appointed to ascertain the nature of the Los
Angeles Police Department's response to the April, 1992
civil unrest in Los Angeles. The Commission interviewed
over 400 people, conducted a telephone survey, and held
meetings to assist in its determination of the effectiveness
of the LAPD's level of preparation. I was one of four
Deputy Counsel supervising an attorney team of la%ryers whose
responsibility was to conduct interviews of LAPD personnel.
In addition to describing and assessing the LAPD's response
to the civil unrest, the Commission made recommendations
designed to assist both the LAPD and the entire City of Los
Angeles in efforts to improve emergency preparedness. In
brief, the Commission recommended that the LAPD strengthen
its emphasis upon basic patrol duties, that the LAPD and Los
Angeles City as a whole pay increased attention to emergency
response planning and training, and that the emergency
operations center and communications systems for the LAPD
and the City of Los Angeles be modernized.
17. Legal Career ;
a. Describe chronologically your law practice and
experience after graduation from law school including:
27
1. Whether you served as clerk to a judge, and if so
the name of the judge, the court, and the dates of
the period you were a clerk:
No clerkship.
2. Whether you practiced alone, and if so, the
addresses and dates:
No solo practice.
3. The dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each:
1) Legal Aid Foundation of Los Angeles (UiFLA)
9/77-12/77 '
Administrative address:
1550 West Eighth Street
Los Angeles, CA 90017
Assistant Attorney (Agency's title for a law
school graduate who has not been sworn in as
an attorney)
2) Los Angeles County District Attorney's Office
1/78 to present
210 West Temple Street, Los Angeles, CA 90012
1/78-6/87: Deputy District Attorney
6/87-10/88: Head Deputy, Torrance Branch
Office
10/88-12/92: Assistant Director, Bureaus of
Central Operations and Special
Operations
12/92-present: Assistant District Attorney,
one of three highest ranking administrators
in an office of approximately 900 deputy
district attorneys.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
Its character has changed over the years?
I practiced criminal law as a deputy district
attorney in court until June, 1987. I served in
preliminary hearing, misdemeanor and juvenile
prosecution units. I also negotiated cases in the
Consumer and Environment Protection Division from
July, 1980 until April, 1983. I was the Grand
Jury Legal Advisor for two years from April, 1983
to June, 1985. My next assignment was as a
28
calendar deputy in the Central Operations Division
fron July, 1985 to June, 1987.
From June, 1987 until October, 1988, I was the
Head Deputy of the Torrance Branch office of the
District Attorney's Office. I was an Assistant
Director with oversight of criminal law divisions
froB October, 1988 until December 7, 1992. As a
Head Deputy I approved charging decisions and
dispositions in major cases in the Torrance Branch
of the District Attorney's office. As an
Assistant Director, I participated in broader
policy-medcing issues, although I still made
decisions as to the filing, scope of, and
disposition of, major cases in the criminal
bureau .
Since December 7, 1992, I have been the third
highest administrator and the highest ranking
woman of color in the Los Angeles County District
Attorney's office, which is the largest local
prosecutorial office in the nation with
approximately 900 attorneys. Although the
District Attorney's office is predominantly a
criminal law office, I am cxirrently supervising
child support policies and procedures in the
Bureau of Family Support. I also oversee the
Bureau of Management and Budget and the Bureau of
Crime Prevention and Youth Services.
In addition, I have responsibility for all
Employee Relations decisions within the
department. This includes oversight of
disciplinary matters and departmental
implementation of the Americans with Disabilities
Act. I conduct Skelly hearings f Skellv v. State
Personnel Bd. (1975) 15 Cal.3d 194) in
disciplinary matters involving deputy district
attorneys, and make litigation decisions on
matters before the Los Angeles County Civil
Service Commission.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
Since being sworn in as an attorney in December,
1977, I have represented one client — the People of
the State of California. As described above, I
have specialized in criminal law. Of particular
interest were my assignments to the Consumer and
Environment Protection Division, and am Legal
Advisor to the Los Angeles County Grand Jury. I
8
29
c.
have been in increasingly responsible managenent
positions since June, 1987, and am now one of two
Assistant District Attorneys.
Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varied, describe each such
variance, giving dates.
As stated above in 17.b.l., I appeared in criminal
courts on a regular basis from January, 1978 until
June, 1987 (when I beceuae the Head Deputy of the
Torrance Branch) with the exception of the
following periods:
7/80-4/83: Assignment to Consumer and Environment
Protection Division. (I appeared in civil court
infrequently, and then often before a Commissioner
who accepted stipulated judgments.)
4/83-6/85: Advisor to the Los Angeles County
Grand Jury.
Vfhat percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
My appearances were in state courts of record
100% of the time.
What percentage of your litigation was:
(a) civil
(b) criminal
My litigation was 100% civil from July, 1980
through April, 1983, consisting of lawsuits
brought under California Business and
Professions Code Sections 17200 (unfair
business practices) and 17500 (false
advertising) .
From January, 1978 through June, 1980 and
from April, 1983 through June, 1987, my
litigation was 100% criminal.
State the number of cases in courts of record you
tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
30
I estimate that I tried approximately 200 criminal
cases to verdict, including misdemeanor jury
trials, misdemeanor and felony juvenile
adjudications (all of which are Superior Court
non-jury trials) , and felony adult court and jury
trials. I was sole counsel in all criminal cases.
5. What percentage of these trials was:
(a) jury
(b) non-jury.
Of my Superior Court adult trials, I estimate that
90% were jury and 10% non-jviry trials. All
juvenile court adjudications (estimating five per
week for nine months) were non-jury Superior Court
matters. To the best of my knowledge, my
misdemeanor trials were jury trials.
18. Litigation ; Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of
co-counsel and of principal counsel for each of the other
parties.
As a criminal trial lawyer, I gained invaluable experience
by litigating and resolving the variety of cases that are
part of the daily case load in the do*mtown criminal courts.
Although these were not high-publicity cases, I consider my
experience as a calendar deputy and regular trial deputy to
be among my most valuable assignments.
In each of the eight criminal lawsuits listed below, I was
the trial attorney for the Los Angeles County District
Attorney's Office, representing the People of the State of
California. I was co-counsel in the civil lawsuits listed
as cases 9 and 10. All eases were litigated in the Los
Angeles County Superior Court.
1. People v. Michael Ivevs
Case Number: A772038
Charge: P.C. 211 (Robbery)
Judge: The Honorable Philip F. Jones (retired)
10
31
Defense Attorney: John Martinez, Office of the Public
Defender, Rio Hondo Office, 11234
East Valley Blvd., El Monte, CA
91731; (818) 575-4174
Date of Verdict: January 24, 1986
Facts of case : The victim was walking in an alley
behind a downtown hotel when he was approached and
beaten by three individuals, one of whom was the
defendant. The defendant took the victim's wallet.
Two witnesses from the hotel came to the aid of the
victim and held the defendant for police. The other
two assailants escaped.
The jury convicted the defendant of robbery. He was
sentenced to three years in State Prison.
2. People V. Cecil Turner
Case Number: A772155
Charge: 3 counts P.C. 245(a)
(Assault by means of force likely to produce great
bodily injury and with a weapon.)
Judge: The Honorable Charles Older (retired)
Defense Attorney: James Goldstein
6454 Van Nuys Blvd., Van Nuys, CA 91401;
(818) 785-5553
Date of Verdict: February 12, 1986
Facts of case : The defendant was charged with three
counts of assault with a deadly weapon against the
three victims, who were brothers. The three brothers,
young men in their 20' s, testified that the defendant
pulled two ki .ves on one brother, and that all three
brothers eventually disarmed the defendant. One
brother was cut on his hand. However, the defendant
himself sustained fairly serious injuries, including
torn tendons on one arm. The victims never admitted
that they had inflicted these wounds on the defendant,
despite the presence of medical records.
The jury found the defendant not guilty.
3. People V. Cornelius Fredericks Banks
Case Number: A769521
Charge: P.C. 245(a)
(Assault by means of force likely to produce great
bodily injury and with a deadly weapon.) An
enhancement of great bodily injury was also
charged .
Judge: The Honorable Robert Altman
Defense Attorney: Albert E. Hopkins
11
32
1324 Wlerfleld Dr., Pasadena, CA 91105; (818)
931-1567
Date of Verdict: April 23, 1986
Facts of Case ; In July, 1985, the victim was walking
with a girlfriend when the defendant, her estranged
boyfriend, approached her and allegedly slashed her
face with a knife. The victims 's credibility was
successfully attacked on several major issues during
the trial. The jury returned a not guilty verdict.
People V. Larrv Charles McKiever
Case Number: A781270
Charge: P.C. 290(b), 211; V.C. 10851
(Kidnapping for robbery, robbery, taking an
automobile without the owner's consent.)
Judge: The Honorable Paul Boland
Defense Attorney: George S. Clark
880 West 1st Street, Los Angeles, CA 90012;
(213) 617-8128
Date of Verdict: August 1, 1986
Facts of case : The defendant, along with another
suspect, jumped into the car driven by the 40-year-old
female victim. They forced her to drive from dovmtown
Los Angeles to South Central Los Angeles, where they
forced her from her car, took her wallet and her car,
and left her. The defendant was arrested driving the
victim's car two days later.
The jury found the defendant guilty of all charges. He
was sentenced to State Prise for life and to a five
year enhancement for a prior conviction.
People V. Anthony Carl Roger;
Case Number: A782730
Charge: P.C. 211 (Robbery)
Enhancement charging ue<. of a knife was also
filed.
Judge: The Honorable Miriam Vogel
Defense Attorney: Edward N. Mizrahi
Mizrahi & Geffen, ^930 La Cienega Blvd.,
#519, Inglewood, O 90301; (310) 216-0660
Date of Verdict: August 18, 1986
Facts of Case ; The defendant, acting with a juvenile
co-suspect, cornered the victim, a mother out with her
baby and her young daughter. The defendant allegedly
brandished a knife and demanded money. He struck the
victim twice in the face when she was too slow in
giving him money.
12
SB
The jury found the defendant guilty of robbery. It did
not return the enhancement. The defendant was
sentenced to five years In State Prison.
6. People V. Jeffrey Forest Huahea
Case Number: A779204
Charge: P.C. 187 (Murder)
It was also alleged that the defendant personally
used a firearm.
Judge: Commissioner Ronald Hauptman
Defense Attorney: Albert DeBlanc
DeBlanc & Alexander, 5750 Wilshire Blvd.,
/555, Los Angeles, CA 90036; (213) 965-0949
Date of Verdict: January 29, 1987
Facts of case; At 2:00 a.m. one morning, the victim
and his friend drove in the friend's car to an area
where they had heard they could purchase cocaine. A
group of several people, including the defendant,
flagged them down. After some preliminary discussions
over the price of the cocaine, the defendant fired
several shots into the car at the victim, who was in
the passenger seat, and his friend. The victim was
shot five times. Although his friend drove straight to
a hospital, the victim died from multiple gunshot
wounds. The People presented eyewitness testimony
which placed the defendant at the scene with a weapon.
The jury returned a verdict of second degree murder.
The defendant was sentenced to State Prison for 15
years to life plus 2 years for the enhancement alleging
use of a gun.
7. People V. Horace Butler
Case Number: A781930
Charge: 1-3 counts H.S. 11352 (Sale of cocaine)
2 - H.S. 11379.6 (a) (Manufacture of a
controlled substance other than P.C. P.
Judge: The Honorable Robert Roberson
Defense Attorney: Herbert Barish
1007 So. Central, /208, Glendale, CA 91204;
(818) 242-7400
Date of Verdict: March 17, 1987
Facts of c^g^i The defendant was charged with three
counts of sale of cocaine to an undercover officer in
1986. The undercover officer also watched the
defendant process a piece of rock cocaine. The jury
found the defendant guilty on all four counts. He was
sentenced to four years in State Prison, which was
suspended, and to probation and county jail.
13
34
8. People V. Julv T. Dv
Case Number: A 781903
Charge: 1 coiint P.C. 487.1 (Grand theft of personal
property .
9 counts I.e. 556(a)(4) (Preparing fraudulent
insurance claims)
Judge: The Honorable Charles Older (retired)
Defense Attorney: Donald R. Schindler
Combell, Ack & Driscoll, P.O. Box 1065,
Placerville, CA 95667; (916) 622-2992
Date of Verdict: April 8, 1987
r^tcta of case ; This was a fairly complicated insurance
fraud case. The total loss suffered by the insurance
company was approximately $26,000.00. The defendant, a
medical doctor and surgeon, applied for a disability
Insurance policy in 1976 in Indiana. He then moved to
California, where he had both a private practice and,
eventually, full-time employment with the Los Angeles
County Department of Health Services. In 1984, the
defendant became infected with hepatitis and was in
fact for a time unable to do surgery because of the
danger of contaminating patients. Subsequently, the
defendant contacted his insurance company. The
insurance company knew the defendant had a private
practice. However, he never disclosed to the insurance
company that he was an employee of the Los Angeles
County Department of Health Services.
The defendant submitted monthly claims for full
disability and collected monthly payments without
revealing that he was working as a full-time employee
of the Department of Health Services.
The jury convicted the defendant of all ten counts. He
was sentenced to three years probation and payment of
full restitution plus applicable fines and assessments.
9. People of the Stat P- of California vs. Southern
California Edison
Case Number: C372982
Charge: Civil prosecution for violation of Business
and Professions Code Section 17200.
Judge Approving Stipulated Judgment: Judge Pro Tempore
Clinton Rodda
Co-Counsel: Deputy District Attorney, now Head
Deputy, John F. Lynch, Santa Monica
Branch Office, 1725 Main St., Santa
Monica, CA 90401, (310) 458-5341.
Defense Attorney: Mark E. Mikulka
So. Calif. Edison Co., 2244 Walnut Grove
Avenue, Rosemead, CA 91770;
14
35
(818) 302-3272
Date of Stipulated Judgment: June 30, 1981
Facts of case : This was a non-litigated but
significant civil case which resulted in a Stipulated
Final Judgment. As a civil litigator in the Consumer
and Environment Protection Division, I was one of two
attorneys assigned to a 1981 civil prosecution against
Southern California Edison (SCE) , which provides
electricity for Southern California.
SCE used transformers which contained polychlorinated
biphenyl ("PCB") , a substance regulated as a hazardous
waste under Health and Safety Code Sections 21500 et
sea . The PCBs were contained primarily in
transformers, which occasionally ruptured or leaked,
resulting in accidental spills of PCB. SCE failed to
clean up the spills in accordance with the Health and
Safety Code sections governing the handling and
disposal of hazardous waste. In addition, SCE
transported the material from the spills to hazardous
waste facilities; however, SCE did not register as a
hauler of hazardous waste as required by the Health and
Safety Code Section. The District Attorney's office
alleged that both SCE's failure to effectively clean
the PCB spills and its failure to register as a
hazardous waste hauler constituted unlawful business
practices in violation of Business and Professions Code
Section 17200.
Several months of negotiations with SCE culminated in
the June 30, 1981 filing of a Complaint and Stipulated
Final Judgment which contained the largest civil
judgment and costs ($85,400) negotiated to that date by
the Consumer and Environment Division. The Attorney
General joined in the Judgment, but all case
negotiations were handled by DDA Lynch and me. The
Final Judgment also contained an injunction which
required Southern California Edison to notify the State
Department of Health Services by the end of the first
business day following the spill, to notify customers
near the spill within twenty-four hours after the
spill, and to clean up every spill site in accordance
with all federal standards and further orders from the
State Department of Health Services.
10. People of the State of California vs. Giorgio. Inc.
Case Number: L.A. Superior Court C412556
Charge: Civil prosecution for violation of Business t
Professions Code Section 17200.
Judge Approving Stipulated Judgment: Judge Pro Tempore
Bertrand D. Mouron
15
36
Co-Counsel: DDA (now Head Deputy) John F. Lynch,
1725 Main Street, Santa Monica, CA
90401; (310) 458-5341.
Defense Counsel: David Birnbaum (then with Gibson,
Dunn & Crutcher) ; University of CA,
Berkeley, Office of General
Counsel, 291 Boa It Hall, Berkeley,
CA 94720-2499; (510) 987-9725
Date of Stipulated Judgment: Nay 28, 1982
Facts of case ; Following service of simultaneous
search warrants at several Beverly Hills shops, DDA
John Lynch and I alleged unfair business practices
under Business fc Professions Code Section 17200 against
several Beverly Hills retail stores which sold
pocketbooks, belts, and other items made from
endangered species in violation of California Penal
Code Section 653 (o). Negotiations resulted in the
filing of Stipulated Final Judgments as to all the
retailers. One such judgment was reached with Giorgio,
Incorporated, which paid $7,000 in civil penalties and
costs and was subject to an injunction requiring
compliance with Penal Code Section 653 (o).
19. Legal Activities : Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question. Please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
The most significant legal activities which I have pursued
include my criminal trial work, my civil litigation in
consumer and environment protection, my assignment as the
Legal Advisor to the Grand Jury, and the legal activities in
which I have been involved since becoming Assistant Director
and now Assistant District Attorney.
As a civil litigator in the Consumer and Environment
Protection Division, I gained valuable civil pre-trial
litigation and negotiating experience with cases in the
consumer and environmental protection area. One of the
consumer protection cases I handled was People v. La
Victoria Foods. Inc. . Los Angeles Superior Court C355633.
This was a negotiated Final Judgment including $40,000 in
civil penalties and costs against La Victoria Foods, a local
manufacturer of salsas and sauces, for unfair business
practices under Business and Professions Code Section 17200.
The violations arose from unsanitary conditions at La
16
37
victoria's food processing plant in violation of the Health
and Safety Code.
During ay tern as Grand Jury Legal Advisor, the Grand Jury
heard some of the most coaplex cases ever handled by the Los
Angeles County District Attorney's Office, including the
Twilight Zone case and the McNartin Pre-school nolestation
case. I also had the opportunity to assist the grand jurors
in their role of civil oversight of County government.
As an administrator, I have been involved in a number of
significant legal activities. While serving as a Head
Deputy and Assistant Director in three criminal bureaus, I
had the opportunity to make filing decisions and case
disposition decisions on the most significant cases within
those bureaus.
As Assistant District Attorney since December, 1992, I have
recently been involved in assisting with budget negotiations
during what is arguably the most challenging fiscal year in
Los Angeles County's history. Although this is not a legal
activity, I have gained invaluable administrative experience
as well as an understanding of the budgeting process in a
county government larger than most states. Similarly, I
supervise the Bureau of Family Support, with its separate
staff of attorneys and support staff, and its separate
budget and complex relationships with the federal and state
government .
Perhaps of most recent importance was my service as a Deputy
General Counsel on the Webster-Williams Commission appointed
to investigate the Los Angeles Police Department (LAPD)
response to the April, 1992 civil disorders. Our Commission
worked during the entire summer of 1992 to review the LAPD's
reaction to the civil uiurest. I was one of four Deputy
Counsel in charge of an attorney team which interviewed over
200 LAPD officers, ranging from patrol officers to the then
Deputy Chief for the Commission.
In addition to describing and assessing the LAPD's response
to the civil unrest, the Commission made recommendations
designed to assist both the LAPD and the entire City of Los
Angeles in efforts to improve emergency preparedness. In
brief, the Commission recommended that the LAPD strengthen
its emphasis upon basic patrol duties, that the LAPD and Los
Angeles City as a whole pay increased attention to emergency
response planning and training, and that the emergency
operations center and communications systems for the LAPD
and the City of Los Angeles be modernized.
I am a member of the State Bar Committee of Bar Examiners,
and have been the Chair of the Subcommittee on Moral
17
38
Character for the past year. Our Subcomnittee conducts
voluntary interviews of applicants whose backgrounds have
raised issues which must be resolved before their admission
to the Bar. This work has proved to be of significant value
to the State Bar and has been personally rewarding for me.
18
39
ZI. rZHAHCIAL DATA AMD COVFLICT Ot ZMTKRKST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other futvire benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
When I reach retirement age, I will receive retirement
income from the Los Angeles County Employees Retirement
Association (LACERA) and the County of Los Angeles Savings
Plan (assuming that I remain in those plans) .
Alternatively, I may "roll-over" my retirement funds into an
Individual Retirement Account (IRA) within 180 days of
terminating my employment with the County. I will also
continue to receive interest income, dividends, and capital
gain distributions as indicated on my Form AO-10.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conf licts-of-interest during yoiir initial
service in the position to which you have been nominated.
I would immediately disclose to all litigants the
potentially conflicting ownership of stocks, bonds, or
mutual funds, as well as my prior employment with Los
Angeles County and membership in the Los Angeles County
Employees Retirement Association (LACERA) and the County of
Los Angeles Savings Plan (assximing that I remain in those
plans) . I would indicate whether I considered the
particular holding to constitute a conflict of interest, and
would remove myself from any involvement with the case if I
concluded that either an actual conflict or the appearance
of a conflict of interest existed.
I do not anticipate any other sources of potential conflict.
I will, of course, follow all canons of the Code of Judicial
Conduct in reference to any potential conflict of interest.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
19
40
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do
so, copies of the financial disclosvire report, required by
the Ethics in Government Act of 1978, may be substituted
here . )
Please see Form AO-10 for sources and amounts of all income
called for in this question.
5. Please complete the attached financial net worth statement
in detail (add schedules as called for) .
Please see attached.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
No.
20
41
FINANCIAL DISCLOSURE REPORT
Raport Raqulrvd try thm itliic*
Rafor« Act of 1989, Pub. L. Ko.
101-194, Movwmbmx 30, 1969
(S U.S.C.A. App. 6, fSlOl-112)
1. P«rBO£) Raporclng (L«at
flzvt, OLlddla loitlal)
Collins, Audrey B.
2. Coiu-t or Orgaolzstloa
United States District Court/
Central District of Californi
3. Oat* of Raport
1/29/94
4. Tltla (Artlcla III judgas Indlcata actlva or
•aaior atatua; Naglatrata judgaa lodlcata
fall- or part-tiaa)
Nominee, district court
Raport Typa ( chack approprlata typa)
Y Hoialnatlon, Data 1 /?7/94
Initial Annual Final
6. Raportlng Parlod
1/93-1/94
7. Cbaabara or of flea Addraaa
L.A. Cbinty District Attctney's Otfioe
18-333 QrijTiiral GDurts Bailing
210 ;^5t Triple Street
e. On uia baala of tba laforaatlon coatalnad in ttala Raport, It
la. In ay opinion. In coopllanca wltii appllcabla lawa and
ragulatlona
Raviawlng Officar Slgnatura
IMPORTANT NOTES: 77k instructions accompanying this form must be fallowed. Complete all putt,
efaeddng the NONE box for each sectloo where you have no reportable information. S^ on last poge.
I. POSITIONS. (Reporting iodividual only, see pp. 7-8 of Instniaions.)
POSITION NAME OF ORGANIZATION/ENTITY
□
NONE (Ho reportAbla poaltlooa]
&'^i-a-;Tn- rHf^Hrr Ar^^mpy
I/TK flncppiss mmr^f IMstrict Attctney
Pc^icfenr.
L.A. CtaL T TEv Di3txict Attomg/'s OrinE Prevgiticn Rxrt^tion(nor>-ctD£it)/I993-9 4
Secrgtarv
L.A. Oxnt?/ Oistrict Attctng/'s Ftainfeticn (non-crofit), 1993-^
II. AGREEMENTS. (Reponmg individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
(ontirrBd at VIII.)
Q
NONE (No raporxable agrasaanta)
NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (Ro reportable non-invsatawnt incoDe)
nqQ?U..A. mnrYrH.:!t-Hr1- ai-1-nmpy Vg Offi np f.qpin
(1993) L.A.Cbmtv District Attomg/'s Cffioe (self)
(1994) L.k.Cnnty rH.gM-ifT Arfnmpy'.g nffirp t<=c^yf\
(1997-941 r..A. Cnr*y n=^ . nf Hm1i-h .qFrvimR i;^ajpp)
(1993) Qxy U.S.A. -Oil royalty (camtnity |-ti4.a.L y)
GROSS INCOME
(youis, not spouse's)
S 106.812
$U4,'S2
$ 9,400(ao:rax. )
s
256
42
FINANCIAL DISCLOSURE REPORT (confd)
I of FsTBOD toporxiog
QpllirB/ Audrey B.
Data of Raport
iy29/19*i
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
Oncludes those u> spouse and dependent children: use the parenthetlcals '(S)" and 'pC)' to Indicate nfotUHt
iclmbuncments and gifts receiYed by spouse and dependent children, respectively. See pp.Li-15 of InitrDciloas.)
n
SOURCE
DESCRIPTION
NONE (Ho aucn nporubl* r«l»Mir n — n t» or glfu)
■ BBIBt
V OTHER GIFTS, (includes those to spouse and dencodent children; use the parenthetlcals '(S)' u
Indicate other gifts received by spouse and dependent children, respectively. See pp.l5-li of
D
SOURCE
NONE (HO aucb r«porul>l< «1CC«1
DESCRIPTION
and '(PCr *»
InslnM'hnit )
VALUE
FYgTTf
VI. LIABILITIES. Oncludes those of spouse and dependent chlldrtn; indicate where appUcable, person responsible
for liability by usine the parenthetical -(S)' for separate liability of spouse, "(J)" for joint liability of reporting
individual and spouse, and "(DC)" for liability of a dependent child, ^ee pp.lfr-18 oflnstructions.)
D
CREDITOR
NONE do r«parusi« liusiiitlM)
DESCRIPTION
VALUE CODE*
n-rT«^^n^ >- Hirf^cr- nSiral-im '^TT^arpnral LCSD m-hnrTTMT fTI T i flFrt IrTT I ffT
26-VEar old sji at V!;ale Law Sctcol
VALOB OODia: J * S15.000 or !■•• K
a - 3230,001 U> ]JOD,000 o
113,001 to S30,000
isoo.ooi to $1,000,000
1, - (30,001 to S100,000
P . Mor* ttiMM (1,000,000
(100,001 ts (250,000
43
FINANCIAL DISCLOSURE REPORT (cont'd)
I of Parson Raportlng
CblliJTS> Audpgy B.
Data of Raport
1/29A9*]
VII. INVESTMENTS and TRJSTS - income, value, transactions, (includes those or spoa«
and depeadcnt chUdrcD; sec pp. 18-27 of Instructions.)
A.
(iocludlD^ tniac aetata)
Xndloata, wbaxv mmXScahlm, owoar of
ch* §»««t by usijig til* p«r*QU)«uc«l
"(J)" for lilnt omarvblp of raoort-
lAO lD4lviaaal «fi(j apcou, -(Sl^for
MMxata on«r«lilp by •pou«*. *<I>C)'
for owuArsAlp by aopaodast coilo.
Plao* *IX)* atur a^cli <a>M
•XHipc froM prior discloauro.
during
raporting
parlod
C.
Oroaa valoa
at and of
raportlng
pariod
0.
TrafiaaotloDa during rvporttsg pariod
(1)
«at.,
Coda^
-ST:
(1)
(J-P)
(J)
Valua
Hatbod,
Coda^
(9-1' 1
If not asaspt fra« dlsclouura |
Hontb.
(3)
Valua,
JdaoU^ of
{If prlvata
traaUotlan)
NONE (DO roportail.
iacoa*. assota, or
EXEMPT
EXEMPT
1
Hesicbroe, Los Anqeles, CS. (..
) c
Rent
K/M
R/V*
tat.#134-950196-3,134-100506-l
A
Intficest
J
T
&:cx.72-^?ff9-l
A
Interest
J
T
Art.#24»-88TO
A
K
T
ixl.(ra6-013D19-4Cf7
71 A
Div.
Y-
T
nVijP t (-hv R:,l,,nnprl Rrri f.71
A
Div.
J
T
7
A
Div.
.
T
S
Jans Venture Fmd, Ire. (J)
A
Div.
T
9
A
n--.
-
T
10
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19
20
1 XDCO«a/Cala Cod«*t A-Sl,000 or lost fi-Sl,001 to C2,5O0 C-S2,501 to 5,000 D-55,001 to $15,000
(«•• Col. Bl t D4) E-S15,001 to S50,00C F-< 0,001 tr $100,000 G-S100,001 to SI. 000, 000 H-Horo than $1,000,000
J Valua coaui J-5i5,oo4 or laaa n-s.sIdSi to 556,444 i,.j58,641 to Si64,4oo M-S164,66i ti S5S6;ao«
taa* col. Cl t D3) !l-$250,001 to $500,000 -^''00,001 tc $1,000,000 P-Hore tjian SI, 000,000
] Vain. Mathod Codaa: g-Appralaal l.-c.t'(r.al aitite fmiy) S-Haaaaaaant ' ' f-CaakAUrkai
(Saa Coi. C2) U-Boo« Valua tiar u-BatUutad
44
FINANCIAL DISCLOSURE REPORT (confd)
I of P«r»OD Raportlag
CXllinR. AitVw R,
Dat« of Baport
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indiate pan of Report.)
I. ttaBiticTs(caTtiru33)
Ajviaor, Stedal Assistaije to VictinB in Elrergercy (SftVE' (nm-prDfit fou-tfatiai of L.A. Oxnty Dlaxlct flaxcney'3
QEfioE, 1992-93
Ttustee, Larpstm E&r Aaaxdanim of Lob Angeles, 1993 .
vn(oantinuBd)
il, Iteidgce, LC6 AnqeleB, Ca.
This residaoevos pu xhased in 1971 foe $29,000(oo6t. ) ttaue^^r, that cbes not reflect its true value tatey.
I believe the currait nartet valiE to be approDciiTBtely $aX),C10O-S220,00O. (ttote: Tine asseaaed value of the
hjTE is lower than nartet valu° ir<=rar=c, r^l ifccnia's Pcoxsiticn i:- has frcgm the ffpq^''^ 'J^lig nPnnwK
cured sinoe the 1970's. 1 .
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Adviic^ Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after rc.onable inquiry, 1 did not perform any adjudicatory
function in any litigation during the period covered by this report in wh I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome i iuch litigation.
I ceni^ that all information given above (including information pen- mg to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge ac belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-du ,;losure.
I further certify that earned income from outside employment and hcporaria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C.A app. 7, 5 .'^' et. seq., 5 U.S.C S 7353 and Judicial Conference
regulations.
Signature uL-^ R) (A^ Date JJiarv 29, 19»>
NOTE ANY INDIVIDUAL WHO KNOWINGLY AND WU^FULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. Ar:-'. 6, § 104, AND 18 U.S.C S 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to: Judicis Ethics Comminee
Admir:bmtlve Office of Uie
Un;..'4 Sutes Courts
Washii.gton, DC 20544
45
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all
assets (including accounts, real estate, securities, trusts, investments, and other
financial holdings), all liabilities (including debts, mortgages, loans, and other financial
obligations) of yourself, your spouse, and other immediate members of your household.
ASSETS
LIABILITIES
Cash on hand and in banks
U.S. Govt, securities-add schedule
Listed securities-add schedule
Unlisted securities-add schedule
Accounts and Notes receivable
Due from relatives and friends
Due from others
Doubtful
$20,601 Notes payable to banks-
secured
Notes payable to banks-
unsecured
$80,534 Notes payable to relatives
Notes payable to others
Real estate owned-add schedule
Real estate mortgages receivable
Autos and other personal property
Cash value-life insurance
Other assets-itemized on schedule
$655,000 Accounts and bills due
Unpaid income tax
$131,000 Other unpaid tax and
interest
Real estate mortgage
payable-add schedule
$53,510 Other mortgages and other
liens payable
11,802
46
Other debts-itemize
TotaJ assets
CONTINGENT LIABILITIES
As endorser, comaker or guarantor $18,230
On leases or contracts
Legal Claims
Provision for federal income tax
Other special debt
$940,645
Total liabilities
$11,802
Net worth
$928,843
Total liabilities and
$940,645
net worth
GENERAL
INFORMATION
$18,230
Are any assets pledged?
(Add schedule)
No
Are you defendant in any
suits or legal actions?
No
Have you ever taken
bankruptcy?
No
47
FINANCIAL STATEMENT
NET WORTH
SCHEDULE
USTED SECURITIES
1. Charles Schwab
Roche Holding A.G.
Schwab Money Market Fund
2. A.G. Edwards
Centennial Government Trust
3. Charles Schwab IRA-Audrey B. Collins
Cable & Wireless Spon ADRF
Hong Kong Tele, Ltd.
Merck & Co., Inc.
NovaCare
Vestar
Schwab Money Market Fund
4. Charles Schwab IRA-Timothy R. Collins (spouse)
Cable & Wireless Spon ADRF
Hong Kong Tele, Ltd.
Merck & Co., Inc.
NovaCare
Vestar
Schwab Money Market Fund
TOTAL
CASH/MARKET VALUE
$ 8,160
10,343
$16,351
4,800
6,225
3,438
3,050
1,250
4,065
4,800
6,225
3,438
3,050
1,250
4,089
$80,534
REAL ESTATE OWNED
1. Residence
Current Market Value (approximate)
2. Residential Property
Los Angeles, CA
Current Market Value (approximate)
TOTAL
$455,000
$200,000
$655,000
48
OTHER ASSETS
Mutual Funds:
Dodge & Cox Balanced Fund $4,138
Monetta Fund, Inc $278
T. Rowe Price New Asia Fund $4,821
Lindner Fund, Inc $376
Janus Venture Fund, Inc $3,373
Wasatch Growth Fund $663
Scudder Short Term Bond Fund..$7,000
Benham GNMA Income Fund $32,861
TOTAL $53,510
49
III. OEHERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association calls for "every lawyer, regardless of
professional prominence or professional workload, to find
some time to participate in serving the disadvantaged."
Describe what you have done to fulfill these
responsibilities, listing specific instances and the amount
of time devoted to each.
Because of the limitations placed upon Los Angeles County
attorneys by the County Charter, I have not participated in
pro bono activities. Los Angeles County Charter Section 55
states: "The District Attorney, Public Defender, County
Counsel and their deputies shall not engage in any private
law practice, and they shall devote all their time and
attention during business hours to the duties of their
respective offices."
In 1989 I represented the District Attorney's Office on Safe
Harbors, a project sponsored by the South Central Organizing
Committee (SCOC) , United Neighborhoods Organization (UNO) ,
and East Valley Organization (EVO) to promote the safety of
our residents, especially children, in streets and parks.
We sought, but did not receive, federal funding in 1989.
I am the only woman and the only prosecutor joining the Los
Angeles Black Peace Officers Association (BPOA) in meeting
with African-American gang members in South Central Los
Angeles. The original purpose of the meetings was to
promote communication and understanding between law
enforcement and members of gangs in South Central Los
Angeles. A new objective is to find meaningful employment
for interested former gang members. These meetings are not
held during office hours.
In other community-related activities, I spoke at the Drive-
By Agony March sponsored by the mother of two murdered sons
on April 24, 1993, at the Criminal Courts Building, and at
the Interfaith Coalition to Heal L.A. meeting on March 25,
1993 at Holman Methodist Church.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates — through either formal
membership requirements or the practical implementation of
21
50
membership policies? If so, list, with dates of membership.
What have you done to try to change these policies?
I have not belonged to any such organization, to the best of
my knowledge. However, from 1965-67 I was active in my
college sorority, Alpha Kappa Alpha. Its membership
consisted of only women. I do not )cnow whether its By-laws
then, or now, restricted membership to women. I have not
been a financial member since 1967.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
To the best of my )cnowledge, there is not an independent
selection commission in my jurisdiction to recommend
candidates for nomination to the federal courts. However, I
was interviewed by Senator Dianne Feinstein's Judicial
Advisory Committee for the Central District of California.
I also requested that Women Lawyers of Los Angeles evaluate
■e through their judicial recommendation process. The
organization evaluated me as "Exceptionally Well Qualified."
Senator Feinstein's Judicial Advisory Committee for the
Central District of California interviewed me in April,
1993. I was subsequently interviewed by Senator Feinstein
in her San Francisco office. Senator Feinstein's State
Director, Kam Kuwata, was also present during the interview.
I have subsequently had telephone conversations with
officials from the Department of Justice, and have met with
representatives from the Federal Bureau of Investigation and
the American Bar Association.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
22
51
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
siibject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad affirmative
duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
Criticism of "judicial activism" within the Federal
judiciary has been the subject of increasing controversy in
recent years. Although some of this criticism may be well-
founded, based upon decisions which appear to impose far-
reaching orders, much of this criticism may also be based
upon disagreements ^ith either individual rulinga or the
legislative decisiorf to increase the court's jurisdiction in
the area of Constitutional civil rights.
Because of the authority and discretion vested in the
federal district courts, it is especially critical that a
district court judge recognize the appropriate
Constitutional limitations upon the courts and follow
existing law as applied to the facts before the court. If
it appears to the public that federal jurists rule upon
their personal and political views rather than the rule of
law, public confidence in the judiciary as an independent
branch of the federal government will be diminished. In
becoming a federal district court judge, I would consider it
my duty to put aside any personal biases and beliefs and
apply the relevant law to the facts before the court.
23
52
An awareness of and willingness to follow the concepts
discussed below, which all relate to the limited
jurisdiction of the federal court, should curtail any
legitiaate criticism of the courts based upon "judicial
activism." With the courts confronted with an increasing
case load, including an expanding percentage of criminal
cases which must be tried within statutory time limits, the
federal courts must be mindful of the need for caution in
issuing rulings which would require ongoing monitoring or
review of other governmental institutions.
If confirmed as a federal district court judge, I would be
mindful of the jurisdictional limitations inherent in the
federal court system and would adhere to the following
jurisdictional precepts and limitations to avoid criticism
of the court:
Federal courts are courts of limited jurisdiction under
Article III, Section 2 of the Constitution. They can
adjudicate only those cases which the Constitution and
Congress authorize them to adjudicate. The Constitution
also limits the federal judicial power to designated "cases"
and "controversies." This helps to assure that the courts
do not intrude into areas committed to the other branches of
government. The doctrine of standing, which examines
whether the plaintiff has a redressable injury subject to
the court's jurisdiction, is an essential element of the
case-or-controversy requirement of Article III.
Lower courts are bound by the principal of stare decisis,
which is defined as meaning "to abide by, or adhere to,
decided cases." Black's La w Dictionary 1406 (6th ed. 1990).
It may be understood as the obligation to follow judicial
precedents to allow continuity and reliability in the law.
It is obviously the role of district courts to abide by the
rulings of appellate courts under this doctrine.
In summary, I have no agenda, and no preconception as to how
I would rale upon any factual scenario or legal issue other
than to apply the law as it stands to the facts at hand. As
a federal district court judge, I would seek to be fair, to
provide access to the judicial system, and to do justice
under the Constitution and laws of the United States.
24
53
QUESTIONNAIRE FOR JUDICIAL NOMINATION
UNITED STATES SENATE COMMITTEE ON THE JUDICIARY
I. BIOGRAPHICAL INFORMATION (PUBUC)
1 . Full name (include any former names used.)
Fortunato Pedro Benavides (also referred to as Pete Benavides)
2. Address: List current place of residence and office address(es).
OFFICE: 818 Pecan
McAllen, Texas 78501
HOME: 4246 Westlake Drive
Austin, Texas 78746
3. Date and place of birth.
February 3, 1947; Mission, Texas
Marital Status (including maiden name of wife, or husband's name): List spouse's
occupation, employer's name and business address(es).
Augusta Camilla (Zapffe) Benavides; nurse; Seton Home Care; 4200 North
Lamar, Austin, Texas 78756
Education: List each college and law school you have attended, including dates
of attendance, degrees received, and dates degrees were granted.
a. University of Houston (1965-1968), Houston. Texas; Received a
Bachelor of Business Administration Degree (BBA) - 1968
54
b. Bates College of Law at the University of Houston (1968-1972),
University of Houston Law Center, Houston, Texas; Received Doctor of
Jurisprudence (JD) - 1972
Employment Record: Ust (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
a. 1972-1974: Associate, Rankin, Kern & Martinez (now Mullins and
Rankin, Inc.); McAllen, Texas
b. 1974: Partner, Cisneros, Beery & Benavides; fvlcAllen, Texas
c. 1975: Partner, Cisneros, Brown & Benavides; fwlcAllen, Texas
d. 1976: Partner, Cisneros & Benavides; McAllen, Texas
e. 1977: Sole Proprietor, Fortunate P. Benavides, Attorney at Law;
McAllen, Texas
f. 1977-1979: Judge, Hidalgo County Court-at-Law #2; Edinburg,
Texas
g. 1980: Proprietor, Fortunate P. Benavides, Attorney at Law; McAllen,
Texas
h. 1981-1984: Judge, 92nd District Court of Hidalgo County. Texas;
Edinburg, Texas
i. 1984-1991: Justice, 13th Court of Appeals; Corpus Christi, Texas
j. 1991-1992: Judge, Texas Court of Criminal Appeals; Austin, Texas
k. 1993: Visiting Judge to courts in Texas; by assignment of Thomas
R. Phillips, Chief Justice of the Supreme Court of Texas
I. November 1993-Present: Partner, Atlas & Hall, LLP.; McAllen,
Texas
55
Military Service: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
a. Appointed to the Texas Juvenile Probation Commission in 1983;
Austin, Texas; Resolution and plaque for service to the youth of Texas and
to the Commission, received 1990
b. Plaque in honor of contributions to the Hispanic Women of Texas,
presented by the Hispanic Women's Network of Texas, Corpus Christi,
Texas
c. Certificate of Appreciation from St. Edward's University, Austin,
Texas; for contributions in migrant education
d. The American Bar Association at its 1992 annual convention
recognized me and awarded to me a certificate as an outstanding minority
jurist.
9. Bar Associations: List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates
of any offices which you have held in such groups.
a Member: State Bar of Texas, Austin, Texas; Member of District 12b
Grievance Committee; 1977-1982
b. Member: Hidalgo County Bar Association, Edinburg, Texas; Director
1978, 1979. 1980; President 1980-1981 term
c. Member: San Patricio County Bar Association, Sinton, Texas
d. Member: Travis County Bar Association, Austin, Texas; Member
1991-1993
S6
e. Former Member: Corpus Christ! Bar Association, Corpus Christi,
Texas
f. Member: American Bar Association
g. Member: Hispanic National Bar Association, Melville, New York
10. Other Memberships: List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
Organizations to which I belong active in lobbying are the American Bar
Association and the Hispanic National Bar Association. Other organizations
to which I have belonged are as follows:
a. Texas Center for the Judiciary, Inc. (non-profit organization providing
continuing education and training for the Texas Judiciary), Austin, Texas;
Member, Board of Directors 1990-1992
b. St. Michael's Episcopal Church, Austin, Texas; 1992 to present
c. St. Andrew's Episcopal Church. Corpus Christi, Texas; 1985-1991
d. St. Matthew's Episcopal Church, Edinburg, Texas; 1981-1985; Vestry
Member 1984
e. Hidalgo County Easter Seals Society for Adult and Crippled Children,
McAllen, Texas; Board of Directors 1980-1984
f. Mustangs of Corpus Christi, Corpus Christi, Texas; a community
service organization; Member 1990-1991; Honorary member 1992
g. Mexican American Demoaats of Texas, 1990-1992
1 1 . Court Admission: List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the same information for
administrative bodies which require special admission to practice.
a. All Courts of the State of Texas: Admitted April 20, 1972; good
«
standing
b. United States Court of Appeals for the Fifth Circuit: Admitted March
27. 1975. On October 1, 1981. the Circuit was split The new Fifth Circuit
required reapplicatlon. However, since I was a Texas District Court Judge
at the time and the laws of Texas would not allow me to appear or plead in
court while a judge, I did not reapply.
c. United States District Court for the Southern District of Texas-
Admitted January 12. 1973. In 1985 the judges of the Southern District
determined that admission or licenses should not be renewed and required
reapplicatlon. Because I was a justice on the Texas Court of Appeals and
could not under Texas law plead or appear in court, I did not renew my
admission or license in the District Court. I did not resume the practice of
law until October 1993, and I was readmitted to practice on November 1,
12. Published Writing* ; ; Ust the titles, publishers, and dates of books, articles reports
or other published material you have written or edited. Please supply one codv
of all published material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving constitutional law or legal
policy. If there were press reports about the speech, and they are readily available
to you. please supply them.
a. 'Recent Significant Decisions of the Texas Court of Criminal Appeals
(1990-1991 Term);' published in workbook form for the Texas District and
County Attomey's Association 1991 Annual Criminal Law Update
September 25-27, 1991, Galveston, Texas. The paper was updated'
delivered and published in materials for the Texas Criminal Defense Lawyers
Assoaation, Practice Skills Course, January 16-17, 1992, El Paso Texas
Additionally, it was part of the course materials published for the Hispanic
National Bar Association 1991 meeting, San Antonto, Texas.
?, u "^'"'^'0"«;" published by the State Bar of Texas in material for the
17th Annual Advanced Criminal Law Course, August 5-9, 1991. Austin
Texas. Scott Young was the co-author. The paper was an update of the
materials prepared by Michael McCormick. Presiding Judge of the Texas
Court of Cnminal Appeals, and Carroll Wilborn. Jr.. Judge of the 344th
Judiaal District Court. Mr Young was responsible for nearly all of the work
on the updated paper; I provided editing, suggested additional topics and
cases, and orally presented the paper.
58
c. Texas Appellate Procedure-Briefs and Arguments on Appeal.' The
paper outlined the appellate procedure rules in Texas with respect to briefs
and arguments in civil and criminal cases. The article was prepared and
reproduced for the Abilene Bar Association meeting of January 3, 1992. It
was not published.
d. 'A Countdown of Cases.' A paper on the ten most significant
criminal cases decided by the Texas Court of Criminal Appeals in 1991.
The paper was delivered at the Texas Criminal Defense Lawyers
Association's Practice Skills Course in Corpus Christi. Texas, and is a part
of the Skills Course materials.
13. Health: What is the present state of your health? List the date of your last
physical examination.
Good; September 20. 1993
14. Judicial Office: State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of
each such court.
a. Judge, Hidalgo County Court at Law #2, Edinburg, Texas; August
1977-December 1979; appointed 1977 by Hidalgo County Commissioners
Court; elected to full term November 1978. Jurisdiction over probate
matters, civil case over lesser amounts, eminent domain proceedings,
proceedings under mental health code and jailable misdemeanors.
b. Judge, 92nd Judicial District Court of Hidalgo County, Texas; January
1981-1984; elected in 1980 for 4-year term. Jurisdiction over felony trials,
official misconduct cases, civil cases involving greatest amounts in
controversy and suits involving titJe to realty as well as mandamus and
prohibition.
c. Justice, Thirteenth Court of Appeals; November 1984-April 1991;
appointed by Governor Mark White in 1984; elected in 1986 for unexpired
term and in 1988 for full term. The court has jurisdiction over appeals from
trial courts of record as well as mandamus and prohibition matters.
d. Judge, Texas Court of Criminal Appeals; April 1991-January 1993;
appointed by Governor Ann W. Richards in 1991. It is the court of last
6
59
resort in criminal matters. It exercises discretionary authority over decisions
of the courts of appeal. It also has jurisdiction over post-conviction writs of
habeas corpus and prohibition and mandamus action.
1 5. CitgtiQns; if you are or have been a judge, provide: (1 ) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment
was affirmed with significant criticism of your substantive or procedural rulings- and
(3) citations for significant opinions on federal or state constitutioral issues
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the opinions.
(1) a. NancyJohnsonv. Del Mar DistributJng Co., Inc.; 776 SW 2d 768 (Tex
App--Corpus Christi, 1989)
b. State National Bank v. Academia, Inc., et al\ 802 SW 2d 282 CTex
App-Corpus Christi, 1990)
c. Benjamin Trapnell v. Honorable Jack E. Hunter, 758 SW 2d 426 (Tex
App-Corpus Christi, 1990)
d. Thomas v. State of Texas; 821 SW 2d 618 (Tex Crim App, 1991)
e. Unscomb v. State of Texas; 829 SW 2d 164 (Tex Crim App. 1992)
f. Garcia v. State of Texas; 829 SW 2d 796 (Tex Crim App. 1992)
g. National Union Fire Insurance v. Valero Energy Corp • 777 SW 2d 501
(Tex App-Corpus Christi. 1989)
h. Estate of Herman Scott v. Victoria County; 778 SW 2d 585 fTex Add-
Corpus Christi, 1989)
i. McNamara v. Freedom Newspapers, Inc. ; 802 SW 2d 901 fTex Add-
Corpus Christi. 1991) ^^
j. Physicians and Surgeons General v. George Koblizek et ux; 752 SW
2d 657 (Tex App-Corpus Christi, 1988)
(2) a Scurlock Oil Co. v. Smithwick; 724 SW 2d 1 (Tex 1986)
The case involved a wrongful death action in which there were multiple
defendants. During the trial a settlement agreement from another case
60
involving the same defendants was improperly introduced in evidence.
Writing for the 13th Court of Appeals, I had held that the complaint on
appeal had been waived when the complaining party had used the
agreement for its own purposes. Additionally, I held that even if the
complaint was not waived, the error was not reversible error. Accordingly,
the final judgment in favor of the plaintiff was affirmed. The Supreme Court
of Texas reversed the Court of Appeals holding that the complaint had not
been waived and that the prejudicial effect of the improperly admitted
evidence required a reversal of the case, and remanded for a new trial.
b. Southern Pacific Transportation Co. v. Luna; 724 SW 2d 383 (Tex,
1987)
The action was for damages sustained at a railroad crossing collision. At
trial, the plaintiffs obtained a judgment in their favor based upon a jury
verdict. On appeal, I found that the jury finding that the failure of the
company to issue sfsecial restrictions was a proximate cause of the collision
fatality conflicted with the jury finding that the speed the train was travelling
at the time of the accident was not negligent. Accordingly, the Court of
Appeals reversed the trial court judgment. The Supreme Court of Texas
reversed the Court of Appeals tiecause it found that the two jury findings
could reasonably be construed in such a manner as to be reconciled in
favor of the judgment rendered on the jury verdict
c. Leeco Gas & Oil Co. v. Smithwick; 736 SW 2d 629 fTex, 1987)
The case involved the condemnation by a government unit of a possibility
of reverter and the damages recoverable by the owner of the reversionary
interest. The trial court allowed the condemnation and awarded nominal
damages. On appeal to the 13th Court of Appeals, and writing for the
Court, I upheld the condemnation against an attack that the government
unit was estopped to condemn a reversionary interest retained when the
government unit acquired the land by gift from its grantor (the condemnee
in the condemnation action). Additionally, I ruled that under Texas law, the
condemnee was entitled to receive only nominal damages for the taking of
his reversionary interest. The Supreme Court of Texas agreed that the
government unit was not estopped to condemn the reversionary interest;
however, the Supreme Court announced a new rule in Texas cases by
which compensation for condemnation of a reversionary interest is to be
computed when the government entity is a grantee in a gift deed.
Accordingly, the case was reversed and remanded to the trial court for a
determination of the compensation to be paid under the new rule.
d. Estate of Hanau v. Hanau; 730 SW 2d 666 (Tex, 1987)
The case involved the characterization and distribution of property under a
will. The trial court held that properties acquired by the deceased and his
61
spouse while domiciled in a common law state (Illinois) was community
property. Writing for the 13th Court of Appeals, I reversed the trial court by
holding that the property retained the character it had at the time of Its
acquisition and was not community property. I rejected the contention that
the probate code or the new rule announced in Cameron v. Cameron
allowed the trial court to reclassify the character of the property.
Additionally, I found that certain securities were not sufficientiy segregated
and traced to separate property so as to rebut the presumption of being
community property. The Supreme Court of Texas affirmed my judgment
as to the general characterization of the property. However, the Judgment
was reversed in part because the Supreme Court found the evidence was
sufficient to destroy the statutory presumption that the securities were
community property.
e. Dukes v. Migura; 770 SW 2d 568 (Tex, 1989)
The case involves a suit to recover a debt and to foreclose a lien. The
plaintiff. Delphine Migura, in a prior suit had sought a divorce claiming that
she had a common law man-iage with Mr. Migura During the pendency of
that previous suit, Joy Dukes was ceremoniously married to Mr. Migura
Mr. Migura died shortfy thereafter. After the death, Delphine Migura
amended her petition to a daim against the executrix of Mr. Migura's estate,
claiming a reimbursement from the community estate based upon her
common law marriage daim. The executoix and Delphine Migura agreed to
a judgment that declared the existence of the common law maniage;
divided the community property between Delphine and the estate, and
established a lien of $25,000 to satisfy Delphine's daim of reimbursement
against real property Mr. Migura had devised to Joy Dukes. Joy Dukes was
not a party to this previous proceeding. Delphine then brought this action
for the $25,000 debt and foredose of lien on the real property devised to
Joy. The trial court granted Delphine judgment for foredosure of the debt
and foredosure of the lien. Writing for the 13th Court of AppeaJs, I reversed
the trial court, holding that since Joy was not a part of the action that
created a lien on her property, the agreed judgment sought to be enforced
was void as to Joy Dukes. The Supreme Court reversed the judgment of
the Court of Appeals, holding that an action to enforce a lien does not
involve titie to realty and Joy Dukes was not a necessary party to the prior
suit The judgment of the trial court was reinstated.
f. State V. Moreno; 807 SW 2d 327 (Tex Crim App, 1991)
The case involves the question whether the State of Texas had the statutory
right to appeal a trial court's order dismissing an information. The trial court
had sustained a motion to quash that complained of the specificity of the
Information but had refused to sign an order speciflcaify dismissing the
case. Writing for the 13th Court of Appeals, I affimned the toial court, based
9
62
on the applicable statutory provision and previous Texas case law on that
issue. The Texas Court of Criminal Appeals reversed based on the
construction of a similar federal rule and determined that the quashing of
the indictment effectively terminated the prosecution; and accordingly
determined that the State had the right to appeal the granting of a motion
to quash.
g. Rodriguez v. State; 804 SW 2d 516 (Tex Grim App, 1991)
This case involves the question of vi^ether it is the State or an accused who
has the burden to show diligence in prosecuting a motion to revoke
probation. The motion to revoke was filed and the arrest warrant was
issued before the expiration of the defendant's probationary period.
However, the arrest warrant was executed and the hearing on the state's
motion was heard after the probationary period had expired. I affirmed the
trial court, holding that the timely filing of the motion and issuance of the
warrant gave the trial court jurisdiction over the proceeding and it was
incumbent upon the defendant to develop and carry the burden on the
issue of the State's failure to use due diligence. The Texas Court of
Criminal Appeals reversed, holding that once the issue of due diligence was
raised, the State had the burden of proof on the issue and having failed to
meet its burden, the trial court was without jurisdiction to revoke the
defendant's probation.
h. Williams v. State; 851 SW 2d 282 (Tex Crim App. 1983)
This case involves the question of which party has the burden to produce
evidence and the burden of persuasion on the exception to the punishment
provided for the offense of aggravated kidnapping (V.T.C.A. Penal Code,
section 20.046). The defendant was convicted of aggravated kidnapping
and aggravated sexual assault and assessed a life sentence for each
offense. Writing for the 13th Court of Appeals, I affirmed the trial court
judgment and sentence for aggravated sexual assault and reversed the
aggravated kidnapping conviction, finding egregious error in the trial court's
improperly instructing the jury with respect to the provisions of section
20.046. In a case of first impression, the Court of Appeals' opinion placed
the burden of production and persuasion on the State. TTie Court of
Criminal Appeals agreed that the instruction given the jury was in error but
did not believe the error to be egregious. Egregious error is necessary in
Texas to reverse a conviction in a criminal case where the error is in the
charging instrument and no objection is made in the trial court The Court
of Criminal Appeals also determined that the burden of production was on
the accused, not the State, but it did agree that the burden of persuasion
was on the State. Finding no egregious error, the opinion of the Court of
Appeals was reversed as to the aggravated kidnapping case and affirmed
as to the aggravated sexual assault case.
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63
(3) See list of citations attached for opinions touching federal or state
constitutional issues.
16. Public Office: State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
a. 1983-1989, Commissioner, Texas Juvenile Probation Com.nission;
appointment by Governor Mark White
b. I was unsuccessful in seeking election for a full term to the Texas
Court of Criminal Appeals in the general election held November of 1992.
17. Legal Career:
a. Describe chronologically your law practice and experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
I did not serve as a clerk to a judge.
2. whether you practiced alone and, if so, the addresses and dates;
(a) 1977: Sole Practice of Law; 1011 Pecan Street, McAllen,
Texas 78501
(b) 1980: Sole Practice of Law and of Counsel to Yzaguirre,
Chapa & Trevino; 821 Nolana, McAllen, Texas 78504
3. the dates, names and addresses of law firms or offices, companies
or governmental agencies with which you have been connected, and the
nature of your connection with each;
(a) 1972-1974: Associate, Rankin, Kern & Martinez (now Mullins
& Rankin, Inc.); 804 Pecan Street, McAllen, Texas 78501
(b) 1974: Partner, Cisneros, Beery & Benavides; W. Erie Street,
11
64
McAllen, Texas 78501
(c) 1975: Partner, Cisneros, Brown & Benavides; 1011 Pecan
Street, McAllen, Texas 78501
(d) 1976: Partner. Cisneros & Benavides; 1011 Pecan Street.
McAllen, Texas 78501
(e) 1977-1979: Judge, Hidalgo County Court at Law #2; Hidalgo
County Courthouse, Edinburg, Texas 78539
(f) 1981-1984: Judge. 92nd District Court of Hidalgo County,
Texas; Hidalgo County Courthouse, Edinburg, Texas 78539
(g) 1983-1989: Commissioner. Texas Juvenile Probation
Commission; 2015 South IH 35, Austin, Texas 78741
(h) 1984-April 1991 : Justice, Thirteenth Court of Appeals; Tenth
Roor, Nueces County Courthouse, Corpus Christi, Texas 78401
(!) May 1991 -December 1992: Judge, Texas Court of Criminal
Appeals; Supreme Court Building, Austin, Texas 78711
0) 1993: Visiting Judge, by appointment of Thomas R. Phillips,
Chief Justice of the Supreme Court of Texas
(k) November 1993-present: Partner, Atlas & Hall. LLP.; 818
Pecan, PC Box 3725, McAllen, Texas 78502-3725
1. What has been the general character of your law practice, dividing
it into periods with dates if its character has changed over the years?
During the first two years of practice, approximately 80% of
my work was devoted to civil litigation. Approximately 10% of my
work was devoted to criminal matters in the State and federal courts,
and the remaining 10% was devoted to work for the city of McAllen.
city of Mission, and to serving as general counsel for the Pharr, San
Juan, Alamo Independent School District. Beginning in the summer
of 1974. and until 1977 and in the year 1980, the percentage of
criminal work in the State and federal courts increased to
approximately 45% of my caseload. During this time, approximately
45% of my work included civil law and civil litigation and 10% was
devoted to representing the Pharr, San Juan, Alamo Independent
School District and serving as trial counsel for the Hidalgo County
12
65
Child Welfare Agency (now the Department of Human Resources,
Child Protection Sen/ices, Hidalgo County Unit).
2. Descritje your typical former dients and mention the areas, if any, in
which you have specialized.
Because my practice was varied and in tioth the civil and
criminal law areas, I do not have a truly typical client. I participated
in land disputes, family law matters, tort defense, tort prosecution,
election contests, contract disputes, proljate disputes, school law
matters, etc... Many of my clients were also charged with crimes, a
number of whom were indigent. During the first two years of practice
my clients were more likely to be a middle- to upper-income
businessman, professional person, or corporate client whose case
had been assigned to me by one of the senior partners at Rankin,
Kern & Martinez. After leaving that law firm, my clients more likely
were lower- to middle-income with family law or contractual law
problems. I represented the Phan*. San Juan, Alamo Independent
School District as general and trial counsel almost continuously
throughout my period in private practice.
1 . Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving dates.
Frequently
2. What percentage of these appearances was in:
(a) federal courts
(b) state courts of record
(c) other courts
3. What percentage of your litigation was:
(a) Civil
(b) Criminal
4. State the number of cases in courts of record you tried to verdict or
13
1972-1974
3%
1974-1977, 1980
30%
1972-1974
93%
1974-1977, 1980
70%
1972-1974
4%
1974-1977, 1980
0%
1972-1974.
85%
1974-1977, 1980:
50%
1972-1974:
15%
1974-1977, 1980:
50%
66
judgment (rather than settled), indicating whether you were sole counsel,
chief counsel, or associate counsel.
Sole Counsel 28
Chief Counsel 4
Associate Counsel 30
5. What percentage of these trials was:
(a) jury 34%
(b) non-jury 66%
18. LJti gation: Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number
and date if unreported. Give a capsule summary of the substance of each case.
Identify the party or parties whom you represented; describe in detail the nature
of your participation in the litigation and the final disposition of the case. Also state
as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom
the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel and
of principal counsel for each of the other parties.
1. USA V. Bamiro Gonzalez, 559 F 2d 1271 (5th Cir, 1977). In 1976. 1
assisted my law partner, Joe A. Cisneros, at trial. I appealed the conviction
and secured reversal in 1977. The case was tried to a jury before Judge
Owen D. Cox, Jr. (deceased) and, on appeal, was heard before Judges
Thornberry, Ainsworth, and Roney.
The accused was charged with conspiracy with intent to distribute
marijuana. The prosecution's case depended on the testimony of an
alleged co-conspirator who refused to testify at trial. His grand jury
testimony was used at trial to secure a conviction at trial. I undertook the
appeal and wrote the appellate brief. On appeal, I was able to show that
the statements of the co-conspirator were not against his interest, nor did
they have an equivalent guarantee of trustworthiness. The testimony did
not qualify as an exceptbn to the hearsay rule.
Co-counsel at trial: Joe A Cisneros, 3827 North 10th Street, McAllen,
Texas; (512) 282-1883
Opposing counsel at trial: George A. Kelt, Assistant US Attorney, Suite 900,
440 Louisiana Street Houston. Texas 77002; (713) 238-9519
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67
Opposing counsel on appeal: Mary L Sinderson, former Assistant US
Attorney, Houston, Texas
2. State V. Jesus Cruz, #0-611 in the 139th District Oourt of Hidalgo
Oounty, Texas. The judge was Fidencio M. Guerra, Jr. and the trial was
January 10-14, 1977.
I represented, as sole counsel, the accused who was charged with
aggravated assault on a peace officer. The accused turned down an offer
to plead to a misdemeanor assault charge, insisting that he had acted in
self-defense. My investigation revealed that the alleged victim, a peace
officer, had sexual relations with a girl who was with the accused at the time
of the alleged offense. The accused had been an MP in Vietnam and the
alleged victim had to be hospitalized from a blow delivered by the accused.
The jury believed the accused. I understand that one of the police officers
was reprimanded and/or excused as a result of the matters revealed at triall
Opposing counsel: Joe A. Conners, Assistant District Attorney (now in
private practice, 804 Pecan Street, McAllen, TX 78502 [512-687-6217])
3. State V. Elias Juarez, #B-765 in the 93rd District Court of Hidalgo
Oounty, Texas. Tried in 1977, the trial judge was Magus F. Smith, Jr.
(deceased).
In the aftermath of a well-publicized murder trial in Hidalgo Oounty, Texas,
the accused was charged with tampering with a v^ntness. Mr. Juarez, a
former investigator with the Hidalgo Oounty Sheriffs Office, had been hired
as an investigator by an attorney for the accused murderer. I understand
that Mr. Juarez was so adept at his work that he was able to locate and
interview a number of witnesses even before the local police authorities.
Although the State was successful in the murder prosecution (I was not an
attorney in the murder case), it nonetheless sought and obtained an
indictinent against Mr. Juarez for jury tampering. I was sole counsel for Mr.
Juarez and tried the case before a jury, which acquitted my client
Opposing counsel: Rdencio M. Guerra, Jr., now Judge of the 370th Disti-ict
Oourt, Hidalgo Oounty Oourthouse, 100 North Olosner, Edinburg, Texas
78539; (210) 318-2280
4. Garcia v. Pharr, Sa/j Juan, Alamo Independent School District
(PSJA), Oase No. 1 1073, 1390i Distiict Oourt, Hidalgo Oounty, Texas. Tried
and disposed of on motion January 10, 1974. The toial judge was Meriin
Johnson. The case is reported at 512 SW 2d 636.
I was sole counsel for PSJA. Mr. Garda filed suit alleging violation of his
civil rights when he was discharged as a teacher for running for office in
violation of school policy. After discovery, I secured a judgment dismissing
the case on the basis, among others, that he could not bring suit because
he had not exhausted his administrative remedies. The case was appealed
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68
and the judgment was affirmed.
Opposing counsel: Filemon B. Vela, now US District Judge, Federal
Courthouse, 500 East 10th Street, Brownsville, Texas 78520; (210) 548-2500
5. Sanchez v. Brandt, No. D-473, 20eth District Court of Hidalgo
County, Texas. Tried in the spring of 1977, judgment was signed July 1,
1977. The judge was Joe B. Evins, Hidalgo County Courthouse, Edinburg,
Texas.
I was sole counsel for Brandt, who had sold rural property by contract of
sale to Sanchez. Mr. Sanchez lived in Illinois and had another residence in
Mission, Texas. Brandt sought to declare forfeiture and Sanchez claimed
a violation of a Texas statute dealing with notice of default and forfeiture on
property on which the vendee resides. The jury found for Mr. Sanchez.
The trial court nevertheless granted a judgment non obstante veredicto on
the basis that the statute did not apply to unimproved rural property on
which the vendee did not actually live or occupy. Unfortunately for Mr.
Brandt, the case was reversed on appeal, and the appeal is reported at 567
SW 2d 254.
Opposing counsel: George Powell, 5921 North 23rd, McAllen, Texas 78501 ;
(210) 686-2413
6. Estate of Zamora v. Rodriguez, 517 SW 2d 838 (Tex App-Corpus
Christi, 1975). The judge was Walter Kelly, Hidalgo County Court at Law.
I was sole counsel for Mrs. Rodriguez, who was the subject of eviction
proceedings brought by the Zamora Estate. I undertook the case after the
justice court had ordered her eviction. I filed an appeal, which was
dismissed as untimely by the County Court at Law judge. I undertook a
pro-bono appeal and the Court of Appeals reversed the County Court at
Law and reinstated the forcible detainer action in the County Court.
Opposing counsel: Ralph Vidaurri, P.O. Box 787, 1221 South 14th,
Edinburg, Texas 78540; (512) 383-2467
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived).
While a District Judge in Hidalgo County, I took on responsibility for
establishing a residential facility for juvenile offenders. I was able to acquire
commitments from the commissioners' court for a facility, funding from the
State of Texas, and the county for equipment, improvement of facilities and
16
69
the operation of the facility. In addition, I had to secure permission from the
City of Weslaco. The Ramiro Guerra Youth Center is still operating with
room for 52 male juveniles. In addition, I am assured that efforts are being
taken by the local authorities now in charge to expand the facility to house
young female offenders.
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for
any financial or business interest.
None, except for retirement benefits due me from the Texas
Employees Retirement System. The amounts due are dependent on
whether I draw benefits upon realizing the age of 55 or 60 years. Because
I served continuously for over 12 years, I should receive 50% of the amount
then paid to a judge on the Texas Court of Criminal Appeals tf I retire at age
55, and 60% of such amount if I retire at age 60 (the annual pay of a judge
on the Texas Court of Criminal Appeals is preserrtly in the neighborhood of
$90,300.00). Additionally, I own a 1/3rd undivided interest in 10 acres of
land in Hidalgo County with two individuals. I expect that, upon the sale of
the land, I will recover 1/3rd of the proceeds.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present potential
conflicts of interest during your initial service in the position to which you have
been nominated.
Lawyers of cases on appeal should disclose names of all lawyers
and parties with an interest in a case so that a justice can determine
vtrhether he has a financial interest in the case, or a family or financial
17
70
interest with a party. In addition, the issues in the case should be examined
to determine whether the resolution of the issues will likely affect the
financial interest of the justice. If an examination reveals a conflict or
appearance of impropriety, I would voluntarily recuse myself. In addition,
I would adhere to the Canons of the Code of Conduct for Judges and abide
by the directives and advisory opinions of the Committee on the Codes of
Conduct I am aware of no areas of litigation that would be likely to present
themselves which would create a conflict of interest by my initial service.
Do you have any plans, commitments, or agreements to pursue outside
employment, with cr without compensation, during your sen/ice with the court?
If so, explain.
No
List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted
here.)
1993 SOURCES OF PERSONAL INCOME
State of Texas
a. Court of Criminal Appeals
b. Services as Visiting Judge
Nueces County, Texas
El Paso County, Texas
Bexar County, Texas
Bee County, Texas
San Patricio County, Texas
Brooks County, Texas
Atlas & Hall, McAllen, Texas
Texas Commerce Bank, Austin
8,282.38
Salary
41,881.45
Salary and per diem
613.27
Supplemental pay and
expenses for Visiting Judge
1,998.59
Same as above
1,079.58
Same as above
823.44
Same as above
887.72
Same as above
665.28
Same as above
36,833.00
Salary
682.93
Interest
1994 SOURCES OF PERSONAL INCOME
Atlas & Hall, McAllen, Texas 28,666.64 Salary
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Please complete the attached financial net worth statement in detail (Add
schedules as called for).
Attached.
Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates of
the campaign, your title and responsibilities.
I have not, except for my own campaigns as a candidate for office as
follows:
a. 1978: I ran unopposed for Judge of the Hidalgo County Court at
Law No. 2.
b. 1980: I ran and secured the Democratic party nomination for Judge
of the 92nd District Court of Hidalgo County, Texas against two opponents.
I ran unopposed in the 1980 general election.
c. 1988: I ran unopposed for a full term as a justice on the 13th Court
of Appeals of Texas.
d. 1992: I ran for a full term on the Texas Court of Criminal Appeals.
I was unopposed in the Democratic party primary, but I was defeated at the
November general election.
III. GENERAL (PUBUC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code
of Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving
the disadvantaged." Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.
a. I appealed a case pro-bono {Estate of Zamora v. Rodriguez, 51 7 SW
2d 838 (Tex App, 13th District 74) for a woman who was being removed
from her residence. The time spent on this appeal was three days.
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72
b. I served as a director of the Easter Seals Society for adults and
crippled children in McAllen, Texas. I attended monthly meetings and
helped advise the organization is its policies and practices. I spent four
years with this organization.
c. i appeared in dvil cases while as lawyer on numerous occasions pro-
bono and accepted State court appointments to represent indigents
accused of crimes.
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex. or religion. Do you
currently belong, or have you belonged, to any organization which discriminates -
- through either formal membership requirements or the practical implementation
of membership policies? If so, list, with dates of memljership. What have you
done to try to change these policies?
I am not presently a member of any such organization. At the
University of Houston from 1965 to 1968, I was a memt>er of a college-
sanctioned national sodal fraternity: Phi Sigma Kappa. Only males were
allowed membership and I have not made any effort to change the policies.
Additionally, in 1990 1 was invited and joined a voluntary service organization
in Corpus Christi, Texas, known as the Mustangs of Corpus Christi.
Although I am not familiar with its rules or by-laws, there were no female
members. The sole activity of the organization was to donate food, cook
the barbecue, and serve the food and barbecue at fund-raising dinners held
on behalf of charitable, civic, and educational groups or organizations. It
did not solicit money or sell tickets, but simply donated, cooked, and
served. I made no effort to change the policy if indeed one exists. I left the
organization in 1991 when I moved to Austin and I was listed as an
honorary member in 1992.
3. Is there a selection commission in your jurisdiction to recommend candkjates for
nomination to the federal courts? If so, did it recommend your nominatksn?
Please descrilje your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nominatkxi and
interviews in which you participated).
I am not aware of the existence of a selection committee in Texas for
nomination to the U.S. Court of Appeals for the Fifth Circuit. Around mkj-
August of 1993, 1 received an inquiry from a friend as to whether I would be
interested in a position on the Fifth Circuit. On Thursday, September 9.
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73
1993. I received a call from the White House Counsel's office. I was
advised that the President was considering my appointment to the Frfth
Circuit and that certain forms would be sent to me. in November of 1993,
I was interviewed by Ron Wain, an Assistant Counsel to the President, and
also by Bernard Nussbaum, the White House Counsel, and other members
of the President's staff. I have submitted information to and have been
interviewed by the Federal Bureau of Investigation and the American Bar
Association. I have also submitted information to the U.S. Department of
Justice.
4. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner that
could reasonably be interpreted as asking hovy you would rule on such case, issue
or question? If so, please explain fully.
No
5. Please discuss your views on the foilowi ig criticism involving "judicial activism."
The role of the Federal judiciary within \re Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular an;;l academic criticism that alleges that the
judicial branch has usurped many of th(j prerogatives of other branches and levels
of government.
Some of the characteristics of this "jutlicial activism" have been said to include:
a. a tendency by the judiciary towiird problem-solution rather than grievance-
resolution;
b. a tendency by the judiciary to employ the individual plaintiff as a vehicle for
the imposition of far-reaching orders extending to broad classes of individuals;
c. a tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. a tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
e. a tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
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74
It is the function of the courts to resolve disputes arising between
parties to litigation. Certainty a problem must exist in order for there to be
a dispute. However, the courts should be careful to resolve issues
according to law and with an understanding of the respective role of the
executive and legislative branches. Courts should be aware of the
differences between their own desire and beliefs and those required by the
laws of the legislature and the Constitution. If not, the courts jeopardize
representative government. The cornerstone of our way of life is
democracy, not judicial oligarchy.
The judiciary she jld resolve the issues and controversy between the
parties to litigation (and not others not a part of the proceedings).
However, because precedent is (and should be) an important and well-
established component of our law. It follows that rulings will tend to extend
to and effect others not a part of the case. The reliance on precedent
provides a stability and predictability necessary to the civil, criminal,
contract, and commercial law. People need to know what the rules are and
expect others to follow them. Courts must insist on maintaining the integrity
of their orders by being able to enforce their decisions, but should exercise
care that an individual in not denied his day in court.
When the government or society has a broad, affirmative duty
imposed by the Constitution or by lawful legislative statutes, the judge must
declare that duty when called upon in a proper case. The imposition of
such duties when they ariseshould come from the law. A court is
cowardly if it does not enforce the law. A court usurps its role in our
constitutional democracy when it imposes any duty, broad or narrow, not
required by law or necessary to carry out the law.
I believe traditional rules for ripenesand standing are necessary to
Insure that the proper parties with an existing dispute come before the court
and so that the courts may avoid injecting themselves into our system as
the arbiters of emerging policy. Courts are not well suited to be
administrators. The judicial and executive branches should, for the most
part, be afforded an opportunity to correct problems. Only when an
individual or institution is recalcitrant or unwilling to perform its legal duties,
should the court as a last resort, and then only for the shortest period to
insure lawful compliance, undertake the administration of an institution.
Even then, such should not be a general administration, but only measures
necessary to effectively protect the rights established by the Constitution
and by Congress.
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ATTACHMEMT RELATED TO PART I. IHQDIRY 15(3)
Texas Cases, 691-B54 S.W.2d
Results only
Query: ju (benavides) t constitution!
Docunentt
CITATION
COURT/ YEAR
TITLE
853 S.W.2d 527 (Tex.Cr.App. 1992)
848 S.W.2d 126 (Tex.Cr.App. 1992)
843 S.W.2d 586 (Tex.Cr.App. 1992)
834 S.W.2d 357 (Tex.Cr.App. 1992)
831 S.H.2d 331 (Tex.Cr.App. 1992)
829 S.W.2d 164 (Tex.Cr.App. 1992)
829 S.W.2d 191 (Tex.Cr.App. 1992)
829 S.W.2d 796 (Tex.Cr.App. 1992)
828 S.W.2d 1 (Tex.Cr.App. 1992)
823 S.W.2d 284 (Tex.Cr.App. 1991)
823 S.W.2d 660 (Tex.Cr.App. 1992)
821 S.W.2d 616 (Tex.Cr.App. 1991)
819 S.W.2d 806 (Tex.Cr.App. 1991)
817 S.W.2d 64 (Tex.Cr.App. 1991)
817 S.W.2d 77 (Tex.Cr.App. 1991)
815 S.W.2d 560 (Tex.Cr.App. 1991)
815 S.W.2d 656 (Tex.Cr.App. 1991)
807 S.W.2d 8 ( Tex. App. -Corpus Christi
807 S.W.2d 878 (Tex. App. -Corpus Christi
806 S.H.2d 900 (Tex. App. -Corpue Christi
803 S.W.2d 808 (Tax. App. -Corpus Christi
802 S.W.2d 386 (Tex. App. -Corpus Christi
802 S.W.2d 901 (Tex. App. -Corpue Christi
801 S.W.2d 12 (Tex. App. -Corpus Christi
800 S.W.2d 320 (Tex. App. -Corpus Christi
797 S.W.2d 243 (Tex. App. -Corpus Christi
797 S.W.2d 272 (Tex. App. -Corpus Christi
791 S.W.2d 226 (Tex. App. -Corpus Christi
789 S.H.2d 688 (Tex. App. -Corpus Christi
785 S.W.2d 426 (Tex. App. -Corpus Christi
780 S.W.2d 497 (Tex. App. -Corpus Christi
779 S.W.2d 83 (Tex. App. -Corpus Christi
779 S.W.2d 884 (Tex. App. -Corpus Christi
778 S.W.2d 585 (Tex. App. -Corpus Christi
774 S.W.2d 771 (Tex. App. -Corpus Christi
772 S.W.2d 271 (Tex. App. -Corpus Christi
771 S.W.2d 573 (Tex. App. -Corpus Christi
769 S.w.2d 661 (Tex. App. -Corpus Christi
768 S.W.2d 755 (Tex. App. -Corpus Christi
767 S.W.2d 197 (Tex. App. -Corpus Christi
764 S.W.2d 846 (Tex. App. -Corpus Christi
764 S.W.2d 903 (Tex. App. -Corpus Christi
763 S.w.2d 38 (Tex. App. -Corpus Christi
761 S.W.2d 549 (Tex. App. -Corpus Christi
760 S.W.2d 681 (Tex. App. -Corpus Christi
760 S.W.2d 778 (Tex. App. -Corpus Christi
752 S.W.2d 734 (Tex. App. -Corpus Christi
750 S.H.2d 906 (Tex. App. -Corpus Christi
738 S.W.2d 378 (Tex. App. -Corpue Christi
736 S.W.2d 134 (Tex. App. -Corpus Christi
Johnson v. State
Nelson V. state
Chavez v. State
Arcila V. State
Draughon v. State
Linsconb v. State
Fuller V. State
Garcia v. State
Phynes v. State
Ex parte Bower
Greenwood v. State
Thomas v. State
Hernandez v. State
State V. EngelJcing
Ex parte McGee
Lewis V. State
Ellason V. State
Castillo V. State
Burns v. State
Estate of Hanau, In re
Olson V. Central Power and. .
Poindexter v. State
McNanara v. Freedom Newspa..
£x parte Haskin
State By and Through Matto. .
Smith V. State
Lopez V. State
Villegas v. State
wisenbarger v. Gonzales Wa. .
Trapnell v. Hunter
Martin v. State
City of Robstown v. Barrera
Rodriguez v. State
Estate of Scott v. Victor i..
Hargrove v. State
State V. Benavides
Fishman v. State
State v. Moreno
Southwestern Bell Telephon. .
King v. Bauer
Burns v. State
Gunther v. State
state V. Brady
McKinney v. State
Guerra v. State
Hosey v. State
Reyes v. State
Garcia Rodriguez v. State
Roe v. State
Town of South Padre Island..
76
Texas Cases, 691-854 S.W.2d
Results only
Query: ju(benavideE) i constitution!
Docur.ents
CITATION
COURT/ YEAR
TITLE
716
716
707
706
704
703
698
697
697
697
,W.2d
.W.2d
,H.2d
.W.2d
.W.2d
,H.2d
,W.2d
.W.2d
,W.2d
693 S
2d
2d
578
615
171
717
397
708
435
702
753
774
528
(Tex.App.
(Tex.App.
(Tex.App.
{Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
-Corpus Christi
-Corpus Christi
13 Oist. 1986)
13 Dist. 1986)
13 Dist. 1985)
13 Dist. 1985)
13 Dist. 1985)
13 Dist. 1985)
13 Di3t. 198j)
13 Dist. 1985)
13 Dist. 1985)
, . Corpus Christi Taxpayer's ...
, . Leeco Gas ( Oil Co. v. Nue...
Esterline v. State
Chase V. State
Chaires v. State
Wyatt V. General Motors Corp.
Vista Chevrolet, Inc. v. B
Dill V. state
A. Wolfson's Sons, Inc. v....
Sattervhite v. State
Botello V. state
Texas Cases, 481-690 S.H.2d
Results only
Query: ju(benavides) ( constitution!
Documents
CITATION
COURT/ YEAR
TITLE
688 S.W.2d 631 (Tex.App. 13 Dist. 1985)
687 S.W.2d 114 (Tex.App. 13 Dist. 1985)
Sinast V. state
Jones V. State
77
ATTACHMENT RELATED TO PART II, INQUIRY 5
FINANCIAL STATEMENT
NET WORTH
Fortunato P. Benavides (includes spouse and dependent children)
463-84-2221
ASSETS
Cash on hand and in banks $ 66,91 1.66
US Government securities-add schedule 0.00
Listed securities-add schedule 0.00
Unlisted securities-add schedule
Accounts and notes receivable: 0.00
Due from relatives and friends
Due from others
Doubtful
Real estate owned-add schedule-see Schedule A 322,701.08
Real estate mortgages receivable 0.00
Autos and other personal property 54,000.00
Cash value-life insurance 15,107.00
Other assets-itemize:
Spouse beneficiary of trusts; trustee is
Rrst Union National Bank of Rorida* 1,840,121.82
Horses 11.000.00
Total Assets $2,309,841.56
CONTINGENT LlABIUTIES
As endorser, comaker or guarantor 0.00
On leases or contracts 773.00
Legal Claims 0.00
Provision for Federal Income Tax 12,300.00
Other special debt 0.00
UABIUTIES
Notes payable to banks-secured 0.00
Notes payable to banks-unsecured 0.00
Notes payable to relatives 0.00
78
Notes payable to others 0.00
Accounts and bills due 6,690.08
Unpaid income tax 0.00
Other unpaid tax and interest 0.00
Real estate mortgages payable-add schedule-see Schedule C 177,710.97
Chattel mortgages and other liens payable 6,600.00
Other debts-itemize: 0.00
Total liabilities $ 204,074.05
Net Worth $2,105,767.51
Total Labilities and net worth $2,309,841.56
General Information
Are any assets pledged? (Add schedule.) No
Are you defendant in any suits or legal actions? No
Have you ever taken bankruptcy? No
* Value of five separate trusts based on market value of each trust x (times) spouse's
percentage of net income interest in each trust; value of separate annuity trust based
on present value of monthly annuity during spouse's lifetime.
79
SCHEDULE A
Real Estate Interests owned by self, spouse, and Immediate members of family:
1. 1/7 owner interest in 0.62 acres, Hidalgo, TX $ 571.08
2. 1/3 owner Interest in 2 lots and improvement.
Crow Wing County, MN 30,000.00
3. .000831 royalty interest in land in Hidalgo County, TX 50.00
4. 0091 non-part/royatty interest on 50 acres
in Starr County, TX 80.00
5. 1/3 owner 10 rural acres in Hidalgo County, TX,
John Sharp Subdivision 33,000.00
6. 1/8 owner interest of portion of Section 34,
Township 135, Range 29, Crow Wing County, MN 10,000.00
7. owner, homestead, lot and house, Austin, TX 249.000.00
Total Real Estate $322,701.08
SCHEDULE B
Specific identification of liabilities in excess of $1 ,000:
1. Real estate mortgage with Banc One Mortgage $177,710.97
2. Chattel mortgage: Valley Financial Service
of Phoenix, AZ, security is spouse's truck 6,600.00
3. MasterCard (2 accounts) 3.150.00
Total Uabilities $187,460.97
80
SCHEDULE C
One real estate mortgage secured by home in Austin, Texas
Payee:
Date of Note:
Original Amount:
Term:
Payments:
Balance:
Banc One Mortgage
November 1991
$180,000.CX)
30 years
Monthly principal and interest of $1,422.03
$177,710.97
81
RUBEH CASTILLO
CANDIDATE FOR THE
NORTHERN DISTRICT
OF ILLINOIS
UNITED STATES SENATE
QUESTIONNAIRE FOR JUDICIAL NOMINEES
BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (Include any former names used.)
ANSWER: Ruben Castillo
2. Address: List current place of residence and
office address (es).
ANSWER: Kirkland & Ellis
200 East Randolph Drive
Suite 5900
Chicago, Illinois 60601
Home Address:
6015 North Kilpatrick Avenue
Chicago, Illinois 60646
3. Date and place of birth.
ANSWER: August 12, 1954 — Chicago, Illinois
4. Marital Status (include maiden name of wife, or
husband's name). List spouse's occupation,
employer's name and business address(es).
ANSWER: Married to Sylvia Mojica Castillo on
August 12, 1978. She is employed as a social
worker/therapist by Tom Leo and Associates,
1530 West Wellington, Chicago, Illinois
60657.
5. Education : List each college and law school you
have attended, including dates of attendance,
degrees received, and dates degrees were granted.
ANSWER: Loyola University, Chicago, Illinois — 1972
to 1976 — B.A. Political Science (6/76)
Northwestern University School of Law,
Chicago, Illinois — 1976 to June, 1979 J.D.
(6/79)
6. Employment Record : List (by year) all business or
professional corporations, companies, firms, or
82
other enterprises, partnerships, institutions and
organizations, nonprofit or otherwise, including
firms, with which you were connected as an
officer, director, partner, proprietor, or
employee since graduation from college.
ANSWER: 1974-1979 — Deputy Clerk, Circuit Court of
Cook County, assigned to Night Arraignment
Court
1979-1984 — Associate Attorney, Jenner &
Block
1984-1988 — Assistant United States
Attorney, Northern District of Illinois
1988-1991 — Regional Counsel, Mexican
American Legal Defense and Educational Fund
("MALDEF")
1991- to present — Partner, Kirkland & Ellis
1988 to present — Adjunct Professor of Trial
Advocacy, Northwestern University School of
Law
7. Military Service : Have you had any military
service? If so, give particulars, including the
dates, branch of service, rank or rate, serial
number and type of discharge received.
ANSWER: None.
8. Honors and Awards ; List any scholarships,
fellowships, honorary degrees, and honorary
society memberships that you believe would be of
interest to the Committee.
ANSWER; Recipient of Meritorious Service Award by the
Illinois State Bar Association for pro bono
work on behalf of indigent criminal
defendants, June, 1983; Recipient of FBI
Commendations for outstanding work as a
Federal Prosecutor (March and November,
1986) ; Recipient of Award from the United
States Customs Service for aggressive and
diligent prosecution of a currency and heroin
smuggling operation (1987); Recipient of
Certificate of Appreciation from Drug
Enforcement Administration for outstanding
- 2 -
83
contributions in the field of drug law
enforcement (1988) ; Recipient of United
States Secret Service Certificate of
Appreciation for superior contributions to
service's law enforcement responsibilities
(1988); Recipient of the Maurice Weigle Award
awarded by the Chicago Bar Foundation in
recognition of outstanding service to the
Legal Profession and Organized Bar during
1989; Selected one of ten outstanding young
citizens by Chicago Jaycee Organization,
1989; Selected in 1990 for "40 Under 40"
Honor by Crain's Chicago Business Magazine;
Selected Attorney of the Year in 1990 by
Mexican American Lawyers Association; Awarded
Community Service Award by Latin American
Police Association, 1989; Recipient of
Distinguished Alumni Citation from Loyola
University in October, 1992; Public Service
Award by Federal Bar Association, October,
1993.
9. Bar Associations ; List all bar associations,
legal or judicial-related committees or
conferences of which you are or have been a member
and give the titles and dates of any offices which
you have held in such groups.
ANSWER: Vice President, Chicago Council of Lawyers,
1991-1993
Member of Board of Governors, Chicago Council
of Lawyers, 1988-1991
Member, Latin American Bar Association,
1980 to present
Member, American Bar Association, 1979 to
present
Board Member, Chicago Bar Foundation, 1991 to
present
Member, Civil Justice Reform Act Advisory
Group of the United States District Court for
the Northern District of Illinois (1991 to
1993)
- 3 -
84
Member of Advisory Board of Children and
Family Justice Center Northwestern University
Legal Clinic (1992 to the present)
Appointed by the Illinois Supreme Court to
the Special Commission on Administration of
Justice (Member of the Judicial Selection
Task Force) (1991 to 1993).
10. Other Memberships : List all organizations to
which you belong that are active in lobbying before public
bodies. Please list all other organizations to which you belong.
ANSWER: Former member of Board of Directors of the
Business and Professional People for the
Public Interest (BPI) ; Former Board Member,
Chicago Legal Clinic; Current Board Member,
Alumni Association of Northwestern University
School of Law; Appointed in 1990 to the
Visiting Committee of Northwestern University
School of Law.
11. Court Admission : List all courts in which you
have been admitted to practice, with dates of
admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse
of membership. Give the same information for
administrative bodies which require special
admission to practice.
ANSWER: Illinois Supreme Court — 1979
United States District Court, Northern
District of Illinois — 1979
United States Court of Appeals for the
Seventh Circuit — 1984
12. Published Writings : List the titles, publishers,
and dates of books, articles, reports, or other
published material you have written or edited.
Please supply one copy of all published material
not readily available to the Committee. Also,
please supply a copy of all speeches by you on
issues involving constitutional law or legal
policy. If there were press reports about the
speech, and they are readily available to you,
please supply them.
- 4 -
85
ANSWER: Note, "Fifth Amendment - Confession and the
Right to Counsel," 68 Journal of Criminal Law
and Criminology 517 (1977) Comment, "The Use
of Civil Liability To Aid Crime Victims, "70
Journal of Criminal Law a nd Criminology 57
(1979) . Copies of these articles are
attached at Tab 1.
13. Health : What is the present state of your
health? List the date of your last physical
examination.
ANSWER: Good. September 20, 1993
14. Judicial Office ; State (chronologically) any
judicial offices you have held, whether such
position was elected or appointed, and a
description of the jurisdiction of each such
court.
ANSWER: Appointed as Court Special Master in Northern
District of Illinois, 1990 to 1991, and as
Court Monitor, 1992 to 1993 by United States
District Court Judge James B. Zagel (Northern
District of Illinois) in Burgos, et al. v.
Ryder, et al. . No. 75 C 3974. My work
involved monitoring and reporting on the
ongoing efforts of the Illinois Department of
Children and Family Services to comply with a
1977 court decree which requires the
department to provide bilingual child welfare
services to clients whose primary language is
Spanish.
15. Citations ; If you are or have been a judge,
provide; (1) citations for the ten most
significant opinions you have written; (2) a short
summary of and citations for all appellate
opinions where your decisions were reversed or
where your judgment was affirmed with significant
criticism of your substantive or procedural
rulings; and (3) citations for significant
opinions on federal or state constitutional
issues, together with the citation to appellate
court rulings on such opinions. If any of the
opinions listed were not officially reported,
please provide copies of the opinions.
ANSWER: I have not written any judicial opinions.
- 5 -
86
16. Public Office ; State (chronologically) any public
offices you have held, other than judicial
offices, including the terms of service and
whether such positions were elected or appointed.
State (chronologically) any unsuccessful
candidacies for elective public office.
ANSWER: Appointed by Mayor Daley in May of 1989 to
serve on a three member blue ribbon panel
which recommended revisions to the City's
Minority and Female Purchasing Set-Aside
Program .
Appointed by Mayor Daley in April of 1992 to
serve on a nine member City of Chicago Gaming
Commission which reviewed the desirability
and feasibility of developing a single-site
casino, hotel, and family entertainment
complex in or near Downtown Chicago. (Chair
of the Legal/Regulatory Committee) .
17. Legal Career ;
a. Describe chronologically your law practice
and experience after graduation from law
school including;
(1) whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
(2) whether you practiced alone, and if so,
the addresses and dates;
(3) the dates, names and addresses of law
firms or offices, companies or
governmental agencies with which you
have been connected, and the nature of
your connection with each;
b. (1) What has been the general character of
your law practice, dividing it into
periods with dates if its character has
changed over the years?
(2) Describe your typical former clients,
and mention the areas, if any, in which
you have specialized.
- 6 -
87
c. (1) Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance,
giving dates.
(2) What percentage of these appearances was
in:
(a) federal courts; J
(b) state courts of record;
(c) other courts.
(3) What percentage of your litigation was:
(a) civil;
(b) criminal.
(4) State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating
whether you were sole counsel, chief
counsel, or associate counsel.
(5) What percentage of these trials was:
(a) jury;
(b) non-jury.
ANSWER: I did not serve as a traditional federal
law clerk. In order to finance my college
and law school education I served as a state
clerk to a Cook County local arraignment
court which held sessions at night.
From June, 1979 to April, 1984, I worked
as an associate attorney with the law firm of
Jenner & Block located at One IBM Plaza in
Chicago, Illinois 60611. During this time
period my legal practice consisted primarily
of general civil and criminal litigation. My
typical clients included both individuals and
corporations. I also participated in various
civil rights and criminal law litigation
matters on a pro bono basis. During my
litigation practice at Jenner I split my
appearances evenly between federal and state
court, and spent 80% of my time on civil
litigation and the remaining 20% on criminal
litigation.
- 7 -
88
In April of 1984 I accepted an
appointment as an Assistant United States
Attorney in the Northern District of
Illinois. I worked at the United State's
Attorney's Office located at 219 South
Dearborn Street, Suite 1200, Chicago,
Illinois 60602. > rom April of 1984 through
April of 1988 my : ractice consisted
exclusively of tht investigation, preparation
and trial of federal criminal prosecutions.
My only client during this time period was
the United States During this time period I
served as lead pr secutor in over twenty-five
trials, which inc uded more than twenty jury
trials.
In April of 988 I became the Director
and Regional Coun. el of the Chicago Office of
the Mexican American Legal Defense and
Educational Fund ("MALDEF"), which was
located at 542 South Dearborn Street,
Suite 750, Chicago, Illinois 60605. From
April of 1988 to April of 1991 I supervised
and participated in various federal class
action litigation on behalf of Hispanic
clients. During this time period I solely
practiced civil litigation and primarily
handled employment discrimination, voting
rights, education and immigration cases.
Ninety percent of my court appearances were
in federal court.
In May of 1991 I became a partner at my
present law firm of Kirkland & Ellis in
Chicago. I presently work at Kirkland 's
office at 200 East Randolph Drive, Chicago,
Illinois 60601. My practice consists of both
civil (40%) and criminal defense litigation
(60%). My typical clients are large Chicago
based corporations. I have also continued to
represent individual clients on both a pro
bono and paid basis. Ninety percent of my
court appearances are in federal court.
I have tried over thirty cases to
verdict or judgment as both chief and sole
counsel. Ninety percent of these cases were
jury trial cases.
89
I have never practiced alone during my
legal career.
18. Litigation ; Describe the ten most significant
litigated matters which you personally handled.
Give the citations, if the cases were reported,
and the docket number and date if unreported.
Give a capsule summary of the substance of each
case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final
disposition of the case. Also state as to each
case:
a. the date of representation;
b. the name of the court and the name of the
judge or judges before whom the case was
litigated; and
c. the individual name, addresses, and telephone
numbers of co-counsel and of principal
counsel for each of the other parties.
AKSWER: 1. Shy, et al. v. Navistar . Case No.
C-3-92-333 (Judge Rice, W.D. Ohio,
1992) . This EKISA class action case
involved numerous novel litigation
issues as well as complicated tax and
federal securities issues, and proceeded
on a parallel basis in two separate
federal districts. I was one of the
main attorneys for Navistar throughout
this litigation. My primary co-counsel
were Emily Nicklin and Michael Kerr,
Kirkland & Ellis, 200 East Randolph
Drive, Chicago, Illinois (312) 861-2000.
My opponents were represented by Daniel
Sherrick, Associate General Counsel
International Union, United Automobile,
Aerospace and Agricultural Implement
Workers of America, 8000 East Jefferson,
Detroit, Michigan 48214, Tel. No. (313)
926-5216, and Julia Penny Clark,
Bredhoff & Kaiser, 1000 Connecticut
Ave., N.W., Suite 1300, Washington, D.C.
20036, Tel. No. (202) 833-9340. This
case was settled in 1993 and the class
settlement was approved by Judge Rice in
July of 1993.
- 9
90
Hastert v. Board of Elections. 777 F.
Supp. 634 (Judges Conlon, Norgle and
Kanne, N.D. 111. 1991). This Illinois
congressional redistricting case led to
the creation of Chicago's first Hispanic
congressional district. I was the
senior litigation attorney for Hispanic
interests in this case. My co-counsel
on this case were Arturo Jauregui,
Mexican American Legal Defense and
Educational Fund, 542 South Dearborn
Street, Chicago, Illinois 60605 (312)
427-9363, and Judson H. Miner, Davis,
Miner, Barnhill, 14 West Erie Street,
Chicago, Illinois 60610, Tel. No. (312)
751-1170. The Republican interests in
this case were represented by Ty Fahner
of Mayer, Brown & Piatt, 190 South
La Salle Street, Chicago, Illinois
60603, Tel. No. (312) 782-0600, and the
Democratic interests were represented by
William J. Harte, 111 West Washington
Street, Suit€ 1100, Chicago, Illinois
60602, Tel. No. (312) 726-5015
Ortiz V. Fainnan. et al. . 88-7509 (N.D.
111. Judge Duff). I was appointed as
lead trial counsel to represent a
prisoner in a complex prisoner rights
case. This trial ended in one of the
largest individual jury awards to
plaintiff — $758,000. On December 29,
1993 Judge Duff granted the defendants'
motion for a new trial. Thereafter, the
case was tentatively settled pursuant to
a confidential settlement agreement.
The defendants were represented by
Assistant Attorney General Roger P.
Flahaven, 100 West Randolph Street, 13th
Floor, Chicago, Illinois 60601, Tel. No.
(312) 814-3650 and Assistant Attorney
General Patricia A. Marshall, 100 West
Randolph Street, 13th Floor, Chicago,
Illinois 60601, Tel. No. (312) 814-5195.
Hernandez v. Woodward . 714 F. Supp. 1963
(Judge Duff, N.D. 111. 1989). This
federal voting rights class action
successfully challenged restrictive
deputy voter registrar practices which
- 10 -
91
adversely affected the voter
registration of Hispanic voters. I
served as chief counsel for plaintiffs
in this case which was successfully
settled after the entry of an agreed
temporary restraining order. My co-
counsel on this case was Arturo
Jauregui, Mexican American Legal Defense
and Educational Fund, 542 South Dearborn
Street, Chicago, Illinois 60605 (312)
427-9363. The defendants were
represented by Stuart D. Gordon, 30
North La Salle Street, Suite 2040,
Chicago, Illinois 60602, Tel. Nos. (309)
759-0800; (312) 541-0707.
5. Ridge v. Verity, et al. . 715 F. Supp,
1308 (Judge Standish, W.D. Pa.). I
argued on behalf of Hispanic interests
in this complex multi-party action which
challenged the inclusion of undocumented
persons in the 1990 census. The parties
are listed in the published opinion.
(See Attachment 2) The defendants were
represented by Sandra M. Schraibman,
Thomas Peebles and Susan Korytkowski ,
Attorneys, U.S. Department of Justice,
Civil Division, Room 3744, 10th &
Pennsylvania Avenue, Washington, D.C.
20530, Tel. No. (202) 514-2000.
6. U.S. V. Bentlev. Deoan. Josten & Yuna .
No. 85 CR 267. After this month long
jury trial before Judge PlunJcett (N.D.
111.) convictions were returned against
all defendants in this commodities case,
including the first successful
prosecutions of lower level salesmen. I
served as one of the chief prosecutors
in this case. My co-counsel on this
case was former federal prosecutor James
R. Ferguson who is presently with the
law firm of Sonnenschein, Nath &
Rosenthal, 800 Sears Tower, Chicago,
Illinois 60606 (312) 876-3188. I
received a commendation from the FBI for
my work on this case. The defendants
were represented by David P. Schippers,
Schippers & Gilbert, 79 West Monroe
Street, Suite 400, Chicago,. Illinois
- 11 -
92
60603, Tel. No. (312) 263-1200 and
Martin S. Agran, Agran & Agran Ltd., 105
West Madison Street, Suite 700, Chicago,
Illinois 60602, Tel. No. (312) 236-2434.
United St ates v. Centracchio & Saleni.
Nos. 84 CR 2678, 84 CR 2773 (N.D. 111.).
This was a three week bank fraud
prosecution involving the Broadway
National Bank which I successfully tried
along with now Judge Suzanne Conlbn
(Northern District of Illinois, Tel. No.
(312) 435-5595). This jury trial was
tried before Judge Shadur. The
defendants were represented by Frank
Oliver, current address and telephone
number is unknown, and Gerald M.
Werksman, 343 South Dearborn Street,
Suite 1510, Chicago, Illinois 60604,
Tel. No. (312) 372-5196.
United States v. Cosentino & Patterson .
86 CR 359 (N.D. 111., Judge Marvin
Aspen) . This was an insurance fraud
trial in which I served as one of the
lead prosecutors. My co-counsel was
former Assistant United States Attorney
Dan DuPree who is presently employed as
an attorney at the Brunswick
Corporation, One North Field Court, Lake
Forest, Illinois 60045-4811, Tel. No.
(708) 735-4700. The appeal is reported
at 869 F.2d 301 (7th Cir. 1989). I
received a commendation from the FBI for
my work on this case. The defendants
were represented by Jerome Rotenberg,
Rosenfeld, Rotenberg, Hafron & Shapiro,
Chicago, Illinois, Tel. No. (312) 372-
6058.
United States v. Dr. Bernard Lerner .
87 CR 268 (N.D. 111., Judge Marvin
Aspen) . This was a two week jury trial
in which I served as one of the lead
prosecutors which successfully
prosecuted the fraudulent prescription
activities by a doctor who was on the
staff of Northwestern Memorial Hospital.
My co-counsel was Phillip A. Turner, a
former federal prosecutor, -who is
- 12 -
93
currently a partner at Turner, Latz «
OlBStead, 200 West Madison Street,
Suite 440, Chicago, Illinois 60606, Tel.
No. (312) 899-0900. The defendant was
represented by Julius Lucius Echeles,
300 North State Street, Suite 4428,
Chicago, Illinois 60610, Tel. No. (312)
782-0711.
10- United States v. OriamDo. et a1 , ^ No. 88
CR 319 (N.D. 111., Judge Harry
Leinenweber) . This was a one week
narcotics jury trial which I
successfully tried by myself in 1988.
The defendants were represented by
Dennis Cooley, 155 North Michigan
Avenue, Suite 716, Chicago, Illinois
60601, Tel. No. (312) 565-1966, and
Stuart V. Goldberg, 180 North La Salle
Street, Suite 1925, Chicago,
Illinois 60601, Tel. No. (312)
327-9400.
^5- Legal Activities: Describe the most significant
legal activities you have pursued, including
significant litigation which did not progress to
trial or legal matters that did not involve
litigation. Describe the nature of your
participation in this question, please omit any
information protected by the attorney-client
privilege (unless the privilege has been waived) .
ANSWER: Throughout my career I have devoted myself to
improving my skills as a trial attorney. I
have taught Trial Practice at Northwestern
University School of Law as an adjunct
professor for the last five years (1989-1994)
and I have also served as an instructor at
the National Institute of Trial Advocacy
("NITA") during the same time period.
During the last two years I have devoted
considerable time and effort to improving the
local court systems by serving as the Vice
President of the Chicago Council of La%iryers
and by my service on the Civil Justice Reform
Act Advisory Group for the Northern District
of Illinois, the Illinois Supreme Court's
Special Commission on Administration of
Justice, and the Advisory Board of the
- 13 -
94
Children and Family Justice Center of the
Northwestern University Legal Clinic.
I have also attempted to maintain an active
community involvement throughout my career as
indicated by my service on several boards of
legal services organizations as well as my
service on several civic commissions.
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future
benefits which you expect to derive from previous
business relationships, professional services,
firm memberships, former employers, clients, or
customers . Please describe the arrangements you
have made to be compensated in the future for any
financial or business interest.
ANSWER: None.
2. Explain how you will resolve any potential
conflict of interest, including the procedure you
will follow in determining these areas of concern.
Identify the categories of litigation and
financial arrangements that are likely to present
potential conf licts-of-interest during your
initial service in the position to which you have
been nominated.
ANSWER: I plan to strictly follow the Code of Conduct
for United States Judges. The only potential
conflicts of interests that I can perceive
are related to personal friendships rather
than financial arrangements. I will
automatically excuse myself from hearing any
matters in which the parties are represented
by my personal friends. In addition, because
of my close prior association with NALDEF I
do not believe it would be appropriate for me
to preside over any litigation filed by
MALDEF in the Northern District of Illinois.
3. Do you have any plans, commitments, or agreements
to pursue outside employment, with or without
compensation, during your service with the court?
If so, explain.
- 14
95
ANSWER: With the permission of the Chief Judge of the
Northern District of Illinois and in
compliance with the Code of Conduct for
United States Judges, I plan to continue my
service as an Adjunct Professor of Trial
Advocacy at Northwestern University School of
Law. My compensation agreement with
Northwestern is $2,000 per year as indicated
m the attached Financial Disclosure Report.
(Tab 3) .
4. List sources and amounts of all income received
during the calendar year preceding your nomination
and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents,
royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report,
required by the Ethics in Government Act of 1978
may be substituted here.) '
ANSWER: See attached Financial Disclosure Reoort
(Tab 3) . ^ '
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
ANSWER: See Attached Schedule, (Tab 4).
6. Have you ever held a position or played a role in
a political campaign? If so, please identify the
particulars of the campaign, including the
candidate, dates of the campaign, your title and
responsibilities .
ANSWER: I have not played an active role in any
political campaign. I have served on
Political Lawyers Committees for U.S. Senator
Carol Mosley-Braun; State Senator Jesus
Garcia and State Senator Miguel del Valle.
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the
American Bar Association's Code of Professional
Responsibility calls for "every lawyer, regardless
of professional prominence or professional
workload, to find some time to participate in
serving the disadvantaged." Describe what you
have done to fulfill these responsibilities.
- 15 -
96
listing specific instances and the amount of time
devoted to each.
ANSWER: Throughout my legal career I have worked on
significant pro bono litigation and worked on
various efforts at improving the legal system
for the disadvantaged. At Jenner & Block I
worked on several federal civil rights cases
as well as a pro bono murder case. At
Kirkland & Ellis I worked on a prisoner
rights trial and a congressional
redistricting trial on a pro bono basis.
During my tenure at the Mexican American
Legal Defense and Educational Fund and
throughout my service on various boards and
commissions, such as the Chicago Legal Clinic
and the Chicago Bar Foundation, I have sought
to ensure that the legal system became more
accessible to the disadvantaged.
I estimate that I have spent well in excess
of 300 hours per year on pro bono matters.
2. The American Bar Association's Commentary to its
Code of Judicial Conduct states that it is
inappropriate for a judge to hold membership in
any organization that invidiously discriminates on
the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any
organization which discriminates — through either
formal membership requirements or the practical
implementation of membership policies? If so,
list, with dates of membership. What you have
done to try to change these policies?
ANSWER: I am not and have never been a member of any
organization of this type.
3. Is there a selection commission in your
jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it
recommend your nomination? Please describe your
experience in the entire judicial selection
process, from beginning to end (including the
circumstances which led to your nomination and
interviews in which you participated) .
ANSWER: Beginning March of 1993 I submitted a formal
application with a 26 member Merit Selection
16 -
97
Commission which was named by Senators Sinon
and Carol Mosley Braun. The application form
was similar to this form. Thereafter, I was
one of forty-six candidates (out of 130
applicants) that was formally interviewed by
the full Commission. In July of 1993 my name
was among the names of ten finalists that
were submitted to the Senators by the
Commission. After all ten finalists were
interviewed by the Senators I was informed
that the Senators had recommended my
nomination, along with two other names, for
the three vacancies which currently exist in
the Northern District of Illinois.
Thereafter, I was subjected to further
evaluations by the local bar associations in
Chicago. I was found qualified to serve as a
federal judge by the Chicago Council of
Lawyers and the Chicago Bar Association. I
was found highly qualified by the Illinois
State Bar Association. During the last five
months I have been the subject of further
evaluations by the Department of Justice, the
Federal Bureau of Investigation and the
American Bar Association. I was formally
interviewed on one occasion during each of
these investigations. After the completion
of these three investigations I was formally
nominated by the President for consideration
by the Senate.
Has anyone involved in the process of selecting
you as a judicial nominee discussed with you any
specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how
you would rule on such case, issue, or question?
If so, please explain fully.
ANSWER: No.
Please discuss your views on the following
criticism involving "judicial activism."
The role of the Federal judiciary within the
Federal government, and within society generally,
has become the subject of increasing controversy
in recent years. It has become the target of both
popular and academic criticism that alleges that
the judicial branch has usurped many of the
prerogatives of other branches and levels of
17 -
98
government. Some of the characteristics of this
"judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending
to broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and
society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing
and ripeness; and
e. A tendency by the judiciary to impose itself
upon other institutions in the manner of an
administrator with continuing oversight
responsibilities .
ANSWER: Our country was designed to have a three
branch form of government. The role of the
judiciary should be to apply (not create) the
law to the facts presented by a specific case
or controversy. It is a fundamental mistake
for the judiciary to attempt to promulgate
new laws or duties because such activities
would usurp the role of the legislative
branch of government. By the same token,
most legal oversight responsibilities are
properly the role of the executive branch of
government and should not be the
responsibility of the judiciary. The
jurisdictional requirements are vital and
important to the proper functioning of the
federal judiciary and help to ensure that the
proper cases and controversies are decided by
the judicial branch of government.
- 18 -
99
FINANCIAL DISCLOSURE REPORT KHRKsHjOrrnT""--
(9 u.a.c.A. *pp. t, itioi-iui
1. r«r»OD R*portlDg (Last oab«, tlrat, aiddl* loltla.i
Castillo, Ruben
2. Court or Orgaolsatloa
United States District Court
Northern District of Illinois
]. Data of aaport
2/1/9A
4. Tltl* (Artlcla XII 3udg«* Indlcat* activa or
aanlor atatua; Haglatxata iudaaa lodlcata
full- or fxl-tiMi)
Active Status
S. Haport Typa {chacic appropriate typa)
X aoKlaatloo. Data 1/2//-A
Initial Anooal Final
6. ftapoxllDg Parlod
1/1/93-2/1/94
7. Cbaabaxa or Of flea Mdraaa
200 East Randolph Drive
Suite 5900
Chicago, Illinois 60601
e. on tlia baala of tjia loforsatlon cootaload Id thla Kaport, It
la, la vy oplnloD, Id co^llanca wlUi applleabla lawa and
x«gulatloaa
KavlavlDg offlcar slonatura
IMPORTANT NOTES: The iAstrucaons accompanying this form must be followed. Complete ali parts,
cfaeddng the NONE box for each section where you have no reportable iDformatlon. lign on last page.
I. POSITIONS. (Reporting indmdual on]y, sec pp. 7-8 of Isstniaioos.)
POSITION NA.MB OF ORGANIZATION.^NTITY
n
NONE (No raportal)la poaltlooa]
Partner
Board Member
Board Member
Kirkland I. Ellis (5/91 to Present)
Business and Professional People fo r Public Interest
(1591-7/53)
Chicago Legal Clinic (1991-7/93)
II. AGREEMENTS. (Reponmg individual only; sec p 8-9 of Instrunions.)
DATE PARTIES AND TERMS
NONE (Ho raportabla agraaaaata)
III. NON-INVESTMENT INCOME, (f.eponing individual and spouse; see pp. 9-12 of Instructions.)
SOURCE AND TYPE
D
(Honoraria only)
NONE (lo raportabla aoD-lDvaataact loc -aa)
R. Castillo
1
R. Castillo
R. Castillo
(S)
Kirkland
& Ellis
(1992)
- Law
Firm
Partner
Kirkland
& Ellis
(1993)
- Law
Firm
Partner
Northwestern University
School
of
Law (1994)
Afljunct
Tom Leo
rro: essor
& Associates (1992) Social
Therapist
(S)
Tom Leo i Associates (1993) Social Therapist
GROSS INCOME
(yours, not spouse'*)
S 190.000
$ 215.000
$ 2,000
$
$
100
FINANCIAL DISCLOSURE REPORT (cont'd)
■ ■■• of PftTBoa Itoportloo
Ruben Castillo
o«t« of
2/1/94
IV. REIMBURSEMENTS and GIFTS - transportat on, lodging, food, entertainment.
(Includes those to spouse and dependent children; use the pt rcnthctlcals '(S)' and '(DC)' to Indicate reportabk
rclmburKDients and gifts received by spouse ana dependec children, respectively. See pp.13-15 of Insimctlaoa.)
SOURCE DESCRimN
^ I NONE (lo aucb rvportabl* rvlaburs^oti or gifts)
E
V. OTHER GIPTS. (includes those lo spouse and dependent children; use the parenthetlcals *(S)' and '(DC)* to
Indicate other gifts received by spouse and oepcndent children, respectively. Sec pp.1^16 of Instmfittooa.)
□
SOURCE
NONE (lo sueb taporubl* gltto
DESCRIPTION
VAUJP
Vi. LIABILITIES.
(Includes those of spouse and dependeot chii .^n; Indicate where applicable, person rcspooflMc
.,: — .u.. .L..*: — I '/c^' r„_ ... !;„■, .,, «r r-^.,^.. -/T.- for joint UabLlity of —•«-*<"-
18 oilnstructioos.)
for liabUit> by usinj the parenthetical "(S)' for separate lial »\ of spouse, '(J)" for joint liability of reporting
Individual aoo spouse, and '(DC)' for liability of a dcpcndeni child. See pp.lfr-'" ' '
□
CREDITOR
NONE do raporublo llabllStloa)
DE-S^RIPTION
VALUE CODE*
J • tSS.OOO or laai
■ - J2SD,001 vo SSOO.OOO
a • lis, 001 ts tso.oDO
O - 1500.001 to si. 000, 000
1 to 1100,000
Jiu tl, 000, 000
M • 1100,001 ts UM.OOO
101
FINANCIAL DISCLOSURE REPORT (cont'd)
■tta* of P«r*oo teporting
Ruben Castillo
D«t« of
2/1/9A
VII. INVESTMENTS and TRUSTS - income, value, transactions. (lociudu those or
and dcpeodcDt children; icc pp. lft-27 of Instructions.)
DMcrisUsa of Aw*ta
(Iscla2Ia« cnac mmu)
X»dlo«t«, vb«r« AppUc»bl«, einwr of
t&« ••••i by ualA^ i£* p&r«BtJi«uc«l
■ iTlft LtB pHoC SGclSuT*.
at «ad or
Tr«B««ctloBa during r«partJj>g parlod
(1)
(3)
'ST:
(!)
I( sot aoapt tzcm 4tielooi>z« |
Hon til'
Va lotto
IOM(|lr ot
NONE lao r«port«tl»
Iwpr— , «•••(•. or
1
1st Nationwide Bank - IRA
A
Int.
J
T
None
2
Illinois College Bonds
A
Int.
J
T
None
3
1st Nationwide Bank - IRA(s)
A
Int.
J
T
None
« Putnam U.S. Govt. Income -
IRA Rollover Plan(s)
A
Int.
J
T
Buy
1/1/9
3 J
A
Putnam Investme
5
*
7
•
•
SO
11
12
13
14
IS
It
11
> H**^'?^; Co<l»«i »-S1.001) or loot l-Sl.OOl to 12,500 C-$2,501 to 5,000 O-»S,O01 to 915.000
• AT* 1 •, " * "' I-Sli-OOl to 550,000 r-S5D.O01 to 5100, OOD 0-5100,00) to 51.000,000 B-Horo than 51,000.000
2 ^.lu. coo... J.}ll,tM or I..; i!.!i5;661 to 554,655 U-h5,t51 to iVii.bti, iPJlM,841 il iSSilSdt —
(»•• Col. CI i 031 »-5250,OOl to 5500,000 0-5500,001 to 51.000.000 P-Mor« th.n 51,000.000
] v.lo. Mtiioa CoOm: 6.*ppr.l..l »-Co.t (r«tl .Itit. inly) 5>A»..>p.i.t* ' *-i«.b;il.rk«l
(••• Col. ai U-loot Valuo v-otter ■•Sstlutv)
102
I FINANCIAL DISCLOSURE REPORT (coDl'd)
Haas of PvraoD Kaportlog
Ruben Castillo
Dat« of
2/1/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (todict. p.rt of Report.)
1. With respect to Part I, I have served since 1991 as a Board of Director of the
Chicago Bar Foundation, a charitable arm of our local Bar Association.
2. mth respect to item 5 in Part 111, I began teaching a trial practice course
at Northwestern University School of Law in January of 199A as an Adjunct Professor.
My teaching responsibilities will be completed in June of 1994.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Comminee on
Judicial Aaivities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicaioiy
funnion in any litigation during the period covered by this repon in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I cenify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any infonnaiioo not reported was
withheld because it met applicable statutory provisions permitting non-disclosure
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C.A. app 7, § 501 et. seq., 5 U.S.C § 7353 and Judicial ConfercDoe
regulations.
Signature A^Z^-^ ( (f-^-Z^/fi^^ Due J>. ' /- ^y
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, { 104, AND 18 MS.C fi 1001.)
FILING INSTRUCTIONS:
Man signed original and 3 additional copies to: Judicial Ethics Comminee
Administrative Office of the
United Suies Courts
Washington, DC 20544
103
ATTACHMENT FOUR
RNANOAL STATEMENT
NET WORTH
RUBEN CASTILLO
Provide I complete, current n/iinclal net worth suumeni which iterruui In deuJ
tU usru (Including \>kr± acc«unu, rul estate, securities, trusu, investmenu, u^d other fin^c-Ul
ho1di/igs) all liabUidei (Including debts, mortgiges, loins, ud other fininclil obligationt) of
yoiirvel/, your spouse, and other l/runediit* members of youx household.
ASSETS
UAiiLrnz4
Cuh en hu\i iiil ir buiij
V,
(X^
NoLu fM/»b;< IS b*nij-Mair«d
U.S. Covtmsfnt fcunia-tid
Holu f lytklc le itfia-tinitevU
Lined KOilitici-tdi Khidull
NoUi pt/tblj le r«:ui««
UrUJlttd »«ci»ii:ci--»i4 Kbtdjit
Noui piytbk i« eikui
Acxounli Lftd relet rtocivible;
AceounU ind billi du«
1^,
fd
Dvj« frvm r«!itirti &rd fricndj
Un; lid {nconv* lu
CS;« from olhe/l
OlSt/ iifiptid lu ind irUrtil
Doubtful
Ret] tiUK n,(r-4nu piytb.'c-aSd
»chtda]. -Pt-.^Scv.-n. (i-S.OrA^f
IW,
000
Kc*) C4U1C ownc4-t4d >ch«^U
:j^o.
6(X}
Ctiud owrimci and ot>i*r li«iu pty.
tbU
XtA) <iuK wor^tnti ttct'iMttU
Olhef d£b(j-i'.«(iuu--
Auloc ifid etfitr jKnaoC froperly
1^',
COL
Cuh viJje-L/« i/Mu;4rc«
'Z,
ODO
Oihtr »Aj;b-r.«nui«:
StTt^e (^ollc-sc ftovJi^
2.0
COO
. :
Te-(\ Acco^.-.r^
2^,
<23d
"
ToUJ UtklliiiM
IJQ
(YT,
~
Net Wottt
153,
~
Tout A.u<u
^^^,.
0(?0
Tou] L'tbiliiSu ml net ««rlk
V»
rvj^
^^
CO.vnNCENT UABnJTIES
None
GENERAL INFOJLMATION
■*
Aj toiottu, fcomiier or gviuuilor
Are 4ny uk'j plaSjed? (Add Khed-
uk.)
MO
Od Ituct or oontracli
Aft you defeodtnl ir. tr.y luiu or lc|t]
tfb'oiuT
(OO
Vtfi Otlmt
Hiv« yw CM uitB btftbvpiey?
MO
■*
Proviiion for FedenJ IrKomt T«
■•
Otfxr ipuU] debt
y
p^
===»=
;
6^jL^
^'^^-^^3
Persona] residence mortgage is held by Oak Trust
Savings Bank (Chicago, Illinois)
NOMINATIONS OF CARL E. STEWART, TO BE
U.S. CIRCUIT JUDGE; JAMES CARR, CLAR-
ENCE COOPER, FRANK M. HULL, MARY M.
LISI, AND W. LOUIS SANDS, TO BE U.S. DIS-
TRICT JUDGES
THURSDAY, APRIL 21, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:38 p.m., in room
SD-106, Dirksen Senate Office Building, Hon. Herbert Kohl presid-
ing.
Also present: Senators Metzenbaum and Thurmond.
OPENING STATEMENT OF SENATOR KOHL
Senator Kohl. This hearing will come to order. This afternoon,
the Judiciary Committee will conduct a hearing on the following ju-
dicial nominees: Judge Carl Stewart to be Circuit Court Judge for
the Fifth Circuit Court of Appeals; Judge James Carr to be District
Court Judge for the Northern District of Ohio; Judge Clarence Coo-
per to be District Court Judge for the Northern District of Georgia;
Judge Frank Hull to be District Court Judge for the Northern Dis-
trict of Georgia; Mary Lisi to be District Court Judge for the Dis-
trict of Rhode Island; and Judge Louis Sands to be District Court
Judge for the Middle District of Georgia.
As is customary, we will hear first from Senators and Represent-
atives who wish to introduce nominees to the committee, but before
we turn to them let me state for the record that each nominee has
completed a detailed questionnaire on his or her qualifications, ex-
perience, finances and philosophy. The portions of the question-
naire available to the public will be printed in the record of this
hearing.
I understand that we have received a letter concerning the nomi-
nation of Mary Lisi from Stephen Fortunato, so we will make that
part of the record.
[The letter referred to follows:]
(105)
106
The Law Firm of
FORTUNATO & TaRRO,
Warwick, RI, March 15, 1994.
Hon. Joseph Biden,
U.S. Senate,
Washington, DC.
Dear Senator Biden: On March 14, 1994, I received a call from Cathy Poston,
Esq., Chief Nominations Counsel, who indicated that I should direct a letter to you
in light of your poUcy of generally not having live testimony on nominations to the
Federal Bench.
I am opposed to the nomination of Mary Lisi to the United States District Court
for the District of Rhode Island because she has absolutely no experience as a trial
lawyer. Based upon my own frequent practice in the United States District Court
over the past twenty-three (23) years, as well as discussions about the matter with
professional colleagues, I believe I can safely state that Mary Lisi has not handled
any matters in the United States District Court. It also appears that she has never
been involved as counsel in a jury trial — or in any significant non-jury matters in
any court for that matter.
I believe she has had some experience as a court-appointed advocate for children
in Family Court matters, but this role bespeaks more of social work rather than a
trial attorneys position. As you are aware, proceedings involving juveniles are in no
way as formal and rigorous as matters that come before a federal trial court.
At the present time, Ms. Lisi is Chief Counsel for the Supreme Court, handling
disciphnary matters involving complaints against attorneys. Again, the forum is in
no way a formal one regarding procedures and matters of evidence.
In short, Mary Lisi has no meaningful trial experience whatsoever, and she has
not gained experience elsewhere to equip her for the federal trial coxirt. Frankly,
other than trial experience, I do not see how anyone can become qualified to sit as
a United States District Court judge. This, in my opinion, is somewhat different
from a nominee for an appellate position, where a distinguished career of teaching
and scholarship could qualify one for the United States Court of Appeals or even
the Supreme Court of the United States.
I understand from Ms. Poston that this letter will be circvdated to other members
of the Committee, and for this I am grateful.
It is my hope that members of the Committee will raise this question directly in
its inquiry of Ms. Lisi and in its deUberations. The people of Rhode Island who seek
relief in the Federal Cotirts — or who must defend themselves against claims in that
forum — deserve to have their matters adjudicated by someone who has significant
experience with the Federal Rules of Evidence and Procedure as well as at least
some of the important and complex statutes that are regularly disputed in the Fed-
eral Courts.
I thank you for your attention to this.
Very truly yours,
Stephen J. Fortunato, Jr.
P.S. I should add that when this position became available, it was the consensus
of the legal community and the public at large that it would be fitting for a woman
to be appointed because no woman has previously served on this Court in Rhode
Island. I can assure you that in Rhode Island there are a number of qualified
women, many of whom have distinguished records as federal litigators and some of
whom are presently sitting members of the Rhode Island judiciary.
Senator KOHL. We will keep the record open for a limited time
for any other submissions to the committee and in case members
of the committee would like to submit written questions. Of course,
we will place in the record the full introductory statements of home
State Senators.
We have a number of very distinguished Senators with us today,
and so we are going to begin with them. Before we do, though, let
me make one point. We have six nominees, but not too much time
this afternoon, and so we need to complete the hearing today in
order to go to markup next week. Therefore, to the extent that in-
troductions can be somewhat abbreviated, it would be appreciated
by everybody.
107
First, on behalf of Ms. Lisi, we have Senator Chafee and Senator
Claiborne Pell here today, and we will have that introduction first.
Senator Pell.
STATEMENT OF HON. CLAIBORNE PELL, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Pell. Thank you very much, indeed. Senator Kohl.
Members of the committee, it is with very real pleasure that I am
here to introduce to you Mary Lisi of my State of Rhode Island for
the position of district court judge.
I am very pleased by this nomination and proud to be part of it.
I am confident that following your review of her qualifications, you
will agree that President Clinton made a wise, appropriate choice
for the vacancy on the Federal bench in my State.
I recommended Mary Lisi to President Clinton because I consid-
ered her a person of exemplary talent, sterling character, and very
real compassion, whose legal career has been distinguished by high
professional competence and by her most judicial temperament and
demeanor.
Mary Lisi is a native Rhode Islander. She received her under-
graduate degree from the University of Rhode Island, her law de-
gree from Temple. In her legal career, she has served in private
practice, as a public defender, and as a court-appointed special ad-
vocate for children and juveniles in our State's juvenile system.
In recommending Mary Lisi to President Clinton, I realized that
her distinguished, accomplished legal career was quite different in
character from those of many other nominees, but I believe strong-
ly that her experiences, though different from the traditional, were
equally as important and would bring to the bench a diversity of
background. In short, I believe strongly that Mary Lisi has the nec-
essary skills, knowledge, and temperament.
I would also note that this is an historic day for the Federal judi-
ciary in my State. If confirmed, Mary Lisi will become the first
woman to become a Federal judge in Rhode Island. It is hard to
believe it has taken over 200 years for us to come to this point, but
I am glad we finally have.
As we achieve greater diversity in the makeup in our Federal ju-
diciary, it is imperative that we not sacrifice the integrity and qual-
ity of our court system, and that is why I am so proud of this nomi-
nation, which will add a great deal to the Federal bench.
I thank you for this opportunity, Senator Kohl.
Senator Kohl. Thank you, Senator Pell.
Senator Chafee.
STATEMENT OF HON. JOHN CHAFEE, A U.S. SENATOR FROM
THE STATE OF RHODE ISLAND
Senator Chafee, Thank you very much, Mr. Chairman. First, I
am delighted to join with Senator Pell in welcoming Ms. Lisi to the
Hill and introducing her to this committee.
In our State, Mr. Chairman, we take great pride in the Rhode
Island members of the Federal judiciary. At the district court level,
we have Judges Laqueux and Torres and retired Judges Pettine
and Boyle. Judge Selya serves with distinction on the first circuit.
108
and each of these judges are truly outstanding individuals and
have served our Nation extremely well.
I am confident that Mary Lisi will bring added luster to this no-
table group, and I am very pleased to recommend her to you for
the position of U.S. district judge for Rhode Island. She has got an
impressive resume that details a career devoted to public service.
She spent the greater part of the 1980's working in the courts to
protect the rights and well-being of abused or neglected children in
our State.
Since 1988, she has worked to ensure the integrity of our court
system by serving on the Supreme Court Disciplinary Board. I also
would note that in the last 2 years, Mary Lisi gave of her time by
serving on a very important commission we had to investigate the
failure of some of our credit unions, and this was an extremely dif-
ficult job that took untold number of hours and she carried herself
off with great distinction.
So, in sum, Mr. Chairman, the committee has before it this nomi-
nee whose professional life has truly been dedicated to serving our
community and the interests of justice and fairness. So it is with
enthusiasm that I recommend her to you, Mr. Chairman.
Senator KOHL. Thank you very much, Senator Chafee and Sen-
ator Pell.
Ms. Lisi, we will come back to you in a few minutes.
We have three nominees from the State of Georgia. They are rep-
resented here today by Senator Nunn and Senator Coverdell, and
I don't know if Congressman Lewis here. We will take those nomi-
nees, Senator Nunn, as you wish for their introductions. We have
three nominees. How would you like to introduce them today?
STATEMENT OF HON. SAM NUNN, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Nunn. Thank you very much, Mr. Chairman. On behalf
of Senator Coverdell and myseLf — and he will add whatever re-
marks he would like to make, but I believe I am speaking on behalf
of both of us because we have discussed this — it is my honor and
pleasure to introduce to the committee today three of President
Clinton's nominees to the Federal district court seats in the State
of Georgia.
All of them are judges, outstanding judges: Judge Clarence Coo-
per, Judge Frank Hull, and Judge Louis Sands. They already have
made £in outstanding record on the bench and, of course, we are
very proud of the diversity they represent, but I can assure the
members of this committee that they were selected because they
are outstanding individuals, and I believe will make outstanding
Federal judges. I am just going to say a few words about each of
them.
Judge Cooper currently serves on the Georgia Court of Appeals.
He was appointed by Gov. Joe Frank Harris to that position in
1990. He was returned by the voters of Georgia to that position in
1992. Prior to joining the court of appeals, Judge Cooper was on
the Fulton County Superior Court and on the Atlanta Municipal
Court, so he has had very significant judicial experience. He also
served as assistant district attorney in Atlanta.
109
Judge Cooper has distinguished himself in his military service
and his education. From 1968 to 1970, Judge Cooper served in the
U.S. Army and received a Bronze Star for his tour of duty in Viet-
nam. He is a graduate of Clark College, the John F. Kennedy
School of Grovernment, and the Massachusetts Institute of Tech-
nology Community Fellows Program. After beginning his legal edu-
cation at Howard University School of Law in 1964, Judge Cooper
transferred to Emory University in Atlanta, and as an Emory grad-
uate myself, I am very proud to say, that he graduated from Emory
with a juris doctor degree in 1967.
Judge Frank Hull was appointed to the Atlanta Judicial Circuit
in 1990. Judge Hull was returned by the voters in 1992. Before
joining the superior court, Judge Hull served 6 years on the Fulton
County State Court. She has had an outstanding record in both of
those positions.
Judge Hull is a graduate of Randolph-Macon Women's College
and a cum laude graduate of Emory University Law School. In
1973, Judge Hull served a clerkship with Judge Elbert Tuttle, then
judge of the fifth circuit court of appeals. From 1974 to 1984, she
worked for the firm of Powell, Goldstein, Frazer & Murphy as a
trial attorney handling a broad range of cases in the Federal and
State courts.
Judge Hull is a longtime participant in a large number of legal
and civic concerns. She has been very active in the Atlanta project,
an effort by former President Carter to address in a comprehensive
manner the problems of crime, health, and education that are
found in the Atlanta area, and indeed in most of the cities of our
country. She has done a tremendous amount of work in counseling,
job placement, drug and alcohol rehabilitation, and other endeavors
so important in the whole judicial system.
Judge Louis Sands currently sits on the superior court of the
Macon judicial circuit, a position to which he was appointed by
Gov. Zell Miller in 1991. Between 1975 and 1987, Judge Sands was
an assistant district attorney for the Macon circuit and an assist-
ant U.S. attorney for the Middle District of Georgia. He was the
senior assistant U.S. attorney in the middle district for 8 years.
During his tenure in the U.S. attorney's office and the district at-
torney's office. Judge Sands developed a strong record in handling
complex criminal and civil cases. He has a background in child sup-
port enforcement and has served on several State task forces deal-
ing with family violence, gender equality, and substance abuse.
Judge Sands spends much of his spare time working with our
young people in Georgia. In fact, Mr. Chairman, these are all peo-
ple of diff'erent backgrounds, but they have a common denominator,
and that is their dedication to the young people and to the family
and their concern about family breakup in our State and in our Na-
tion.
Judge Sands is a graduate of Mercer University and the Mercer
University Walter F. George School of Law. He is an active mem-
ber of the Macon community, helping to lead the Adopt-a-Role
Model Program that matches local professionals with high-school-
age children in mentoring relationships. He is also very active in
the Stewart Chapel African Methodist Episcopal Church. When
Judge Sands is approved by this committee and the Senate, I be-
110
lieve he will be an asset to the Federal bench, just as he has been
at the State level.
All of these are outstanding individuals, Mr. Chairman and Sen-
ator Thurmond. I interviewed these people extensively and the oth-
ers who were contenders for these jobs. We had an unusual number
of well qualified applicants. These people were outstanding, and I
think they will do an excellent job for our State and Nation. I com-
mend them to you. Senator Thurmond, the committee, and to the
Senate.
Senator KoHL. We thank you, Senator Nunn,
Senator Coverdell.
STATEMENT OF HON. PAUL COVERDELL, A U.S. SENATOR
FROM THE STATE OF GEORGIA
Senator CovERDELL. Mr. Chairman, I want to echo the remarks
given by Senator Nunn, and also publicly thank him for the co-
operation extended to our office in the process by which he meas-
ured the applicants for these high posts.
All of these individuals are distinguished citizens of our State.
They have demonstrated academic proficiencies. They have dem-
onstrated a community spirit so necessary in the work for which
they will soon be challenged. They have professionally impeccable
records. The President has selected, along with Senator Nunn and
his office, three very distinguished Georgians very suitable to serve
their Nation and this President.
Senator KoHL. Thank you very much.
Senator Nunn. Mr. Chairman, I see that Congressman John
Lewis is here. I am very proud that he could join us today. I know
he knows these individuals very well.
Senator KoHL. Very good. Thank you. Senator Nunn and Senator
Coverdell.
Representative Lewis.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Representative Lewis. Thank you very much, Mr. Chairman,
Senator Thurmond. I am very pleased to be here to join with Sen-
ator Nunn and Senator Coverdell in introducing Judges Hull, Coo-
per, and Sands to you.
This is indeed a very special occasion for the people in the State
of Georgia and for our Nation. The nomination of these three
judges to the Federal bench tends to demonstrate the distance we
have come as a nation and as a people. It reflects this administra-
tion's and your commitment to diversity on the Federal bench. It
also reflects this administration's and your commitment to the
highest quality Federal judiciary.
Judge Hull, Judge Cooper, and Judge Sands are all held in ex-
treme high regard for their excellent judicial temperament, fair-
ness, and hard work. All three are highly respected by their peers
in the State of Georgia.
There is a lot I could say about Judge Frank Mays Hull, about
how she graduated cum laude from Emory University Law School
and about how she was one of the first women appointed to the
Ill
Fulton County State Court, twice reelected to the court, and then
elevated to the Fulton County Superior Court in 1990.
But as Senator Nunn stated so well, what I most want to say is
that Judge Frank Hull was Elbert Tuttle's law clerk. Judge Tuttle
is 97 years old now. He served 38 years on the U.S. Court of Ap-
peals for the Fifth and Eleventh Circuits. We all know Judge
Tuttle. Judge Tuttle's fairness and firmness and his fair and firm
leadership as chief judge of the Federal appeals court of the South
helped to change the face of the South. Judge Frank Hull learned
from Judge Tuttle. She was part of his team.
Judge Clarence Cooper is currently a member of the Georgia
Court of Appeals. He was appointed to that position in 1990 and
just a few months later won a statewide election to that position.
Judge Cooper's career in the law has been long and impressive.
Upon graduation from Clark College, Judge Cooper entered How-
ard University School of Law. After 1 year, he came home to At-
lanta to study at Emory University Law School. He graduated from
the Emory University School of Law in 1967.
In 1967, after serving as Fulton Count^s first black assistant
district attorney, Clarence Cooper was appointed to the Atlanta
Municipal Court. He took a leave from the court in 1976 to pursue
his master's in public administration at Harvard University. In
1980, Judge Cooper was elected to the Fulton County Superior
Court. While there, he presided over the very high-profile missing
and murdered children case. On a personal note, let me say that
I know Judge Clarence Cooper, and I know him very well. We are
fortunate to have someone of his caliber with his commitment and
dedication to public service.
Now, let us look at Judge W. Louis Sands. He is from what we
call middle Georgia — I guess Senator Nunn's home area, Macon,
GA. I don't know him as well as I do the others, but I know his
reputation and his excellent reputation for hard work and a very
high standard of ethics.
Judge Sands went to Mercer University and the Walter F.
George School of Law. While in law school, he worked as chief legal
assistant to the district attorney, and while in law school Louis
Sands served in the Army Reserve. He resigned from the reserves
in 1978 at the rank of captain.
Following graduation from law school, Louis Sands spent 3 years
as assistant district attorney. In 1978, he was appointed assistant
U.S. attorney for the Middle District of Georgia. In 1987, he formed
his own firm, Mathis, Sands, Jordan & Adams, operating two of-
fices, one in Millersville and the other one in Macon.
Judge Sands brings to the Federal bench the very valuable per-
spective of a person that has spent long hours on the other side of
the bench, both as a Federal and State prosecutor and as a private
lawyer with a very diverse litigation practice. Mr. Chairman and
Senator Thurmond, I am pleased and proud to see him before you
today for your confirmation of his nomination to the Federal dis-
trict court.
I cannot emphasize how lucky and how blessed we are to have
these three outstanding Georgians. Their elevation to the Federal
court is good news for Georgia and it is good news for America.
Thank you, Mr, Chairman. Thank you. Senator Thurmond.
112
Senator KOHL. We thank you, Representative Lewis, and Senator
Nunn, Senator Coverdell. We will get back to your nominees in due
time. Thank you very much.
We have now James Carr from Ohio, to be introduced by the
Senators from Ohio, Senator Glenn and Senator Metzenbaum.
Senator Glenn.
STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM
THE STATE OF OHIO
Senator Glenn. Thank you Mr. Chairman and Senator Thur-
mond. Mr. Chairman and members of the committee, it is truly a
privilege to be here today to introduce to you Magistrate James
Carr. I want to welcome Magistrate Carr's family — his wife, Eileen;
his daughters, Maureen, Megan, Darrah, and Caitlin; as well as his
brother Tom. And his father, Edmund, flew in from Michigan to be
here today.
This is a day we have been looking forward to for a very long
time, but I think there is only one person who has been looking for-
ward to this day more than Jim, and that is Judge Potter back in
Toledo, who took senior status in August 1992, but has been faith-
fully coming in every day with a full caseload waiting for a new
judge to be appointed. Finally, that day has come and I can't think
of a more qualified person than Magistrate Carr to take the job.
Jim Carr has literally been in difect training to be a Federal
judge since 1979 when he was named a Federal magistrate in To-
ledo. Prior to that time, Jim enjoyed a distinguished and diverse
legal career in private practice, as a prosecutor, as a legal aid law-
yer, and as a professor of law. He has published extensively, and
not only in English. In fact. Magistrate Carr has published more
German law review articles than most German lawyers could ever
hope to publish. I think this provides sufficient evidence that he is
a real student of the law on a wide, wide scale.
I could go on and on, but I am not the one you want to hear from
today. Just let me add that Magistrate Carr is exactly the kind of
individual we need on the Federal bench. I believe he has the per-
fect blend of skills and experience to take on what is truly an awe-
some responsibility.
So I respectfully urge the committee to favorably review his nom-
ination. I am glad to give Magistrate Carr my highest rec-
ommendation; I know he will do a great job.
Thank you, Mr. Chairman.
Senator KOHL. We thank you, Senator Glenn.
Senator Metzenbaum.
STATEMENT OF HON. HOWARD M. METZENBAUM, A U.S.
SENATOR FROM THE STATE OF OHIO
Senator Metzenbaum. Mr. Chairman, in a certain way this is an
unusual nomination for me, and I think maybe for John Glenn as
well. I never met Magistrate Carr before the question of an opening
came up. I never heard of him. I never knew of him politically, I
never knew him socially, but suddenly there converged upon us
Senators an overwhelming outpouring of support for this man who
had been a magistrate for 15 years and many people said was
113
doing all the work that a judge should and could be doing, and
with no exception.
His reputation is impeccable. The lawyers of the community and
the people of the community all say that Magistrate Carr is truly
the person for the position, and I am just very proud to be sitting
here with Senator Glenn and urging his confirmation. I have no
doubt in my mind that he will make an excellent jurist.
John has already told you of some of his background, some of his
writings, some of the work that he has done in the past. I can only
say to you that this is a man whom I am sure will make a superb
jurist and I am very pleased to be here recommending him to you.
Senator Kohl. Well, we thank you very much, Senator Metzen-
baum and Senator Glenn, and we will get back to you. Magistrate
Carr.
We have now with us the two Senators from Louisiana, Senator
Johnston and Senator Breaux. We appreciate your patience in in-
troducing Carl Stewart.
STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S. SENATOR
FROM THE STATE OF LOUISIANA
Senator Johnston. Mr. Chairman and Senator Thurmond, it is
a great personal pleasure for me to introduce to the committee
Judge Carl Stewart, who is the President's nominee to be judge for
the U.S. Fifth Circuit Court of Appeals.
It is a pleasure, first, because Carl Stewart is an old friend,
along with his family. By the way, I would like to introduce his
family. His wife and his son are here, if you would stand up. His
brother is here, and he also has a lot of friends who are with him
for this historic occasion.
Second, it is a great pleasure because he is highly qualified.
Third, it is a great pleasure because he is the first African-Amer-
ican ever to be nominated to the U.S. Fifth Circuit Court of Ap-
peals as it is presently structured.
Mr. Chairman, there is a great deal that I could say, and I have
a statement which I would like to put in the record which details
his many, many qualifications. I would only like to make one point,
and that is that he has been an elected district judge and court of
appeals judge in a predominately white city; he has been elected.
The Shreveport Journal, one of our newspapers there, did a sur-
vey of judges not too long ago. Let me tell you that the Shreveport
Journal stated that Judge Stewart "nearly swept the ratings. He
was a splendid judge, excellent in every respect, has been praised
for his judicial economy and fine judicial manner." I think that ar-
ticle in the Shreveport Journal says it all.
It is with a great deal of pride that I recommend to you Judge
Carl Stewart.
[The prepared statement of Senator Johnston follows:]
Prepared Statement of Senator J. Bennett Johnston
Mr. Chairman and members of the committee. I am very pleased to appeeir before
the committee today for the purpose of introducing to you Carl Edmond Stewart of
Shreveport, Louisiana, nominee to the United States Court of Appeals for the Fifth
Circuit.
It is most fitting that an individual of Mr. Stewart's high standards and eminent
qualifications be nominated for this very important position.
114
As a teenager in the 1960s, Carl Stewart witnessed the civil rights struggle of the
era and saw how the legal system could be used to bring about positive social
change. He was inspired by what he saw and decided to dedicate his life to helping
people through the legal system.
Carl Stewart comes to the committee with impressive credentials, having served
since 1991 on the Second Circuit Court of Appeals in the State of Louisiana. Mr.
Stewart is a 1974 graduate of the Loyola University School of Law in New Orleans.
Mr. Stewart has a distinguished career in law and public service. He has served
as a district judge in the First Judicial District Court, Division D, for the State of
Louisiana, in addition to working as an assistant United States Attorney for the
Western District of Louisiana and a special assistant to the District Attorney in
Shreveport, Louisiana.
Among the professional organizations to which Mr. Stewart holds membership are
the American Bar Association and Judicial Administration Division; the National
Bar Association and Judicial Council; the Louisiana State Bar Association, where
he is a member of the bench bar liaison committee; the Harry V. Booth Chapter
of the American Inns of Court in Shreveport, where he is a charter member; the
Black Lawyers Association of Shreveport-Bossier; and the Louisiana Conference of
Court of Appeals Judges.
Mr. Stewart has been widely praised for his judicial performance. In a survey of
judges, the Shreveport Journal declared that he "nearly swe[pt] the ratings." Mr.
Stewart has been described as "a splendid judge, excellent in every respect" and has
been praised for his "judicial economy" and "fine judicial manner," being "careful to
treat all parties with the same attitude and concern."
It is important to note that Judge Stewart has also served with distinction in a
wide variety of responsible positions outside the legal profession. He has been very
active in his community as a member of the board of directors for the Caddo-Bossier
Community Council, the Boys Club of Shreveport-Bossier, the Hap House
MultidisabiUty Work Center, GoodAvill Industries of Northwest Louisiana, the Salva-
tion Army Advisory Board, the Northwest Louisiana Sickle Cell Anemia Foundation,
the Northwest Louisiana Family Crisis Center, the Shreveport Opera, the Shreve-
port-Bossier Metropolitan YMCA, the American Red Cross, the Northwest Louisiana
Biomedical Research Foundation, and the Shreveport Chamber of Commerce.
Judge Stewart has been honored with awards from the Boys Scouts of America
and the Carver Branch YMCA. The Louisiana Chapter of the Jaycees named him
the Louisiana outstanding black man of the year and he received the black man of
the year award from Southern University's Shreveport-Bossier Afro-American Soci-
ety.
Judge Stewart frequently addresses student and professional groups, emphasizing
the importance of educational achievement and community service and the need for
African-American role models in business and public service. He is also a lay leader
of the Louisiana United Methodist Conference.
I have known Carl Stewart for several years and have found him to be profes-
sional and competent as a lawyer and community leader. Moreover, I am confident
he possesses the necessary judicial temperament to serve on the United States
Court of Appeals for the Fifth Circuit.
In sum, I believe that Mr. Stewart possesses the integrity, appropriate demeanor
and aptitude for legal scholarship that will enable him to serve well and with dis-
tinction if he is confirmed.
Mr. Chairman, Carl Edmond Stewart is imminently qualified to serve as a judge
to the United States Fifth Circuit Court of Appeals and I strongly urge the commit-
tee act favorably on his nomination.
Senator KOHL. Thank you, Senator Johnston.
Senator Breaux.
STATEMENT OF HON. JOHN B. BREAUX, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman and Sen-
ator Thurmond. Thank you for letting our delegation appear to rec-
ommend Judge Carl Stewart.
I think our colleague, Bennett Johnston, was right on target.
This is a very historic day. I mean. Judge Stewart will be the first
African-American to be appointed to the fifth circuit court of ap-
peals, as it is presently constituted, and you all know what an his-
115
toric circuit that has been in the area of human rights and civil
rights for all Americans. So it really is with a great deal of pride
that we are able to present Judge Stewart.
He really comes as a person who is not here just because of his
race. He is here because of the great background as a professional
jurist that he brings to this court. He has a degree in psychology,
which I think is always very helpful in these areas, and very im-
portant. This man has served as a captain in the U.S. Army in the
Judge Advocate General's Corps, so he brings a degree of experi-
ence about the Military Code of Justice which I think is also very
helpful.
In addition, as our colleague, Bennett Johnston, said, I really
think that to get to the circuit court, experience in the lower courts
is very important. I think it is very difficult just to pick up someone
who is a practicing attorney and make them a circuit court judge
because they haven't had that experience of sitting in a courtroom
in a day-to-day environment and hearing people who are real peo-
ple with real problems come before them.
Judge Carl Stewart has done that. As I said, he has been an
elected district court judge in Louisiana, an elected court of appeals
judge in Louisiana. He has been an assistant U.S. attorney. This
man has, by experience, by training, by background and education,
the credentials to make the type of judge that this Congress will
be very impressed with and all of America can be very proud of.
I recommend him to you.
Senator Kohl. We thank you. Senator Breaux.
We also have two Members of the House of Representatives here
with us. Representative William Jefferson and Representative Cleo
Fields.
Representative Jefferson.
STATEMENT OF HON. WILLIAM J. JEFFERSON, A REPRESENT-
ATIVE IN CONGRESS FROM THE STATE OF LOUISIANA
Representative Jefferson. Thank you, Mr. Chairman and mem-
bers of the committee. I am honored and pleased to be here today
with Senators Johnston and Breaux, and with my House colleague,
Congressman Fields, in presenting Judge Carl Stewart to this com-
mittee.
I believe that Judge Stewart will be an excellent addition to the
New Orleans Fifi;h Circuit Court of Appeals, located in the area
that I represent, and I applaud our Senators and President Clinton
for his nomination.
As the Senators have said, this is truly a historic day for this
committee, for the people of Louisiana, and indeed for our country.
As has been said, when confirmed. Judge Stewart will be the first
African- American to ever sit on the fifth circuit court of appeals.
The fifth circuit has been in the forefront of many areas of law,
from admiralty law to contracts law to constitutional law to em-
ployment law and natural resource law, but its most prominent de-
cisions have been in the area of civil rights law advances because,
unfortunately, the Southern States over which the fifth circuit has
had jurisdiction, have been all too fertile a ground for the fostering
of civil rights claims.
116
Judge Stewart's nomination completes the circle of opportunity
for African-Americans, from being shut out of the system as liti-
gants to having rights established through court decisions and stat-
utes to bring their claims and now to have Judge Stewart to give
this area of the law, and others, meaning borne out of peculiar ex-
perience.
The fifth circuit court of appeals has always had a long list of
outstanding jurists to serve on it. Judge Robert Ainsworth; Judge
Elbert Tuttle; Judge Robert Brown; Judge Alvin Rubin, for whom
I was privileged to clerk; and Judge Minor Wisdom, who continues
to serve as a senior judge, are among just a few of the outstanding
jurists who have served on this court. Judge Stewart will serve, I
believe, in this grand tradition.
Mr. Chairman, Judge Stewart is from a unique family, as Sen-
ator Johnston has said. He and his wife are the proud parents of
three children, and he has two brothers who are also judges —
Judge James Stewart of the Shreveport, LA, First Judicial District
Court and Capt. Richard Stewart, Jr., a military judge with the
U.S. Naval Pacific Fleet in San Diego, CA.
From the beginning, Judge Stewart's public judicial life has been
marked for success. He has been singled out by his colleagues as
an outstanding district court judge, and on the court of appeals he
has always been spoken of only in the highest terms as hard-
working, knowledgeable, decisive, competent, efficient, and fair.
Yes, Judge Stewart will bring diversity to the court of appeals, but
he will ^so bring a wealth of legal experience to the fifth circuit.
For these reasons, I strongly urge this committee to recommend
Judge Carl Stewart to the full Senate for confirmation to the U.S.
Court of Appeals for the Fifth Circuit. Mr. Chairman, I appreciate
the opportunity to appear before you this afternoon and I thank the
committee for its time.
Senator Kohl. We thank you. Congressman Jefferson.
Congressman Fields.
STATEMENT OF HON. CLEO FIELDS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Representative Fields. Thank you, Mr. Chairman, Senator Thur-
mond, and my colleagues from Louisiana. It is a pleasure to be
here to speak on behalf of Judge Stewart who lives in my district
and for whom I have a great deal of respect. But one of the dis-
advantages I have, Mr. Chairman, is whenever you come last, most
of the things that you wanted to say have already been said. Let
me just say that if Judge Stewart was before the court today, he
would simply say, after these three statements, "Your Honors, I
rest my case."
Judge Stewart graduated from Booker T. Washington High
School with honors and from Dillard University in Louisiana
magna cum laude in 1971, Mr. Chairman. He graduated from Loy-
ola Law School in 1974. He practiced military law, served as assist-
ant attorney general, then served as an assistant attorney vvith the
district attorney's office in Louisiana. He practiced extensively in
private practice as well, so he brings a vast amount of experience
to the bench. He was elected and reelected as district court judge
and then was elected to Louisiana's Second Court of Appeals.
117
He is a member of many organizations, not only in the State of
Louisiana, but throughout this entire Nation. He was a past board
member of the Shreveport Chamber of Commerce, and also a board
member of the American Red Cross. He has served on many com-
munity organization boards. I think the most unique part of his
credentials is his hard work to help young people within the
Shreveport community.
Mr. Chairman and Mr. Thurmond, Shreveport is a community
where a lot of our young people turn to drugs and alcohol. Judge
Stewart is out there every Saturday working with young people to
keep them from turning to drugs and alcohol. He has a program
within the Shreveport community that I am very proud of, and I
don't think you could find a better person to confirm for the court.
So, finally, I can sum it up by saying: This man is fair, but he is
also firm.
Senator KOHL. Well, we thank you very much, Mr. Fields, Sen-
ators, and Congressman.
We are going to begin with Judge Stewart. Judge Stewart, you
have been nominated to be circuit court judge for the Fifth Circuit
Court of Appeals. Would you please raise your right hand?
Do you swear that the testimony you shall give in this proceed-
ing shall be the truth, the whole truth and nothing but the truth,
so help you Grod?
Judge Stewart. I do.
Senator Kohl. Judge Stewart, if you have any members of your
family — and I know you have them with you — we would be happy
to have you introduce them to us at this time.
TESTIMONY OF CARL E. STEWART, SHREVEPORT, LA, TO BE
U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Stewart. Thank you. Senator. I will be brief As men-
tioned, I am very proud to have my family with me — my father,
Richard G. Stewart, Sr., if my dad would stand; he is a retired let-
ter carrier. My mother is deceased. My father is here; my older
brother, Richard G. Stewart, Jr., who is a captain in the U.S. Navy.
My wife, Jo Ann, is present here. One of my children, our baby
child, Kyle, is present. Our older two children are in school and
could not be here with us.
My nephew, James T. White, is present, also, and I have a host
of friends and supporters and staff that are here that I am ex-
tremely proud to have come and support me, and briefly if they will
just stand?
[The persons stood.]
Senator KOHL. All right, that is great. We welcome you all here
today.
Judge Stewart. Thank you.
QUESTIONING BY SENATOR KOHL
Senator Kohl. I have just a couple of questions and then I will
turn it over to Senator Thurmond.
Judge Stewart, if you are confirmed as an appellate judge, at
some point you may be faced with applying a Supreme Court prece-
dent with which you do not personally agree. Would you consider
yourself to be bound by such precedent?
118
Judge Stewart, Yes, sir; absolutely, Senator.
Senator KOHL. You will also be faced with cases involving issues
on which the Supreme Court has not ruled. In many of those cases,
however, you will have decisions from the fifth circuit on which to
rely. Under what circumstances, if any, do you believe an appellate
judge should overturn precedent within his or her own circuit?
Judge Stewart. Senator, in the circumstance where the Su-
preme Court has not ruled, I would be bound by the law of the cir-
cuit, in this case the fifth circuit, to follow that law as binding
precedent on me as one of three in a panel. If there was reason to
believe that precedent should be overturned, that would only occur
in a situation where the en banc court decided to reverse the law
in that circuit. Otherwise, I would be bound to follow the law of the
circuit.
Senator KOHL. Judge Stewart, rule 11 of the Federal Rules of
Civil Procedure allows judges to impose sanctions against lawyers
or parties who file frivolous lawsuits. Recently, there has been
much debate over the courts' increased willingness to punish liti-
gants under rule 11. Some lawyers argue that the rule, as applied,
sometimes chills creative arguments in developing areas of the law,
such as civil rights. As the chief judge of the New York Court of
Appeals has put it: "Today's frivolity may be tomorrow's prece-
dent."
What do you think of these concerns, and how might you respond
to them on the court of appeals?
Judge Stewart. Senator, I am aware of the discussion and de-
bate over the imposition of rule 11 sanctions. Like many rules, it
requires a balancing test, that which certainly is measured by the
need to control litigation and ensure that only those cases which
are justiciable should be within our courts. The Federal courts are
courts of limited jurisdiction and limited time, and those cases
should be handled.
On the other hand, in a burgeoning era of litigation, there are
a lot of different lawsuits that are brought and I think that rule
11 should be applied reasonably and only in those circumstances
where it absolutely is required to be imposed.
Senator KoHL. Finally, an issue currently before the pro bono
legal community is whether work for the disadvantaged should be
a mandatory or voluntary requirement for lawyers. We see that be-
cause of your judicial role, you have provided nonlegal pro bono
services in the past, including your time with the Boy Scouts and
your positions on the boards of youth service organizations.
In your view, do you think pro bono work should be a mandatory
or a voluntary requirement for lawyers?
Judge Stewart. Senator, mandatory pro bono would probably
produce more lawyers doing pro bono work. However, a compelling
argument can be made that by providing incentives for lawyers to
do it voluntarily will also bring about more lawyers, but they will
gain greater satisfaction from doing it because they want to do it.
Lawyers tend to not want to be mandated to do things, and so a
great argument can be made that mandatory pro bono should be
a case of last resort.
Senator Kohl. I thank you.
Senator Thurmond.
119
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman. Judge, we are
glad to have you with us.
Judge Stew^t. Thank you, sir.
Senator Thurmond. Thomas Jefferson remarked shortly after
the ratification of the Constitution these words, "Our nation's par-
ticular security is the possession of a written Constitution. Let us
not make it a blank paper by construction." What do you think he
meant by that warning, "Let us not make it a blank paper by con-
struction?"
Judge Stewart. I am not absolutely sure. Senator, what he
meant, other than to mean that judges in applying the Constitution
should look to its words and look to apply it in situations narrowly
where a constitutional issue is raised and not merely in situations
where there may be some other statutory basis or some other Fed-
eral common law upon which to decide a controversy.
Senator Thurmond. The way some judges have construed the
Constitution appears unreasonable, £ind I do think we have got to
be careful how we construe the Constitution. All we have got to
do — it is written very plainly — is follow the Constitution.
Now, I think judicial temperament is a very important quality of
a judge. I have seen some Federal judges yell at lawyers, jurors,
witnesses, and that is inexcusable. The more power you have, the
more humble a person ought to be. A judge has all the power, even
over life and death, and therefore I think he ought to be very hum-
ble. How do you feel about that?
Judge Stewart. I would agree with you. Senator. I have always
believed that a judge, whether elected or appointed, is a public
servant and that he or she should accord himself to lawyers and
litigants with that in mind and should exercise only the amount of
power necessary in order to allow litigants to resolve their dif-
ferences in the courtroom.
I have been very proud of an ability to hopefully have people
leave my courtrooms feeling that they got a fair shake even if they
disagreed with the outcome, but to feel that the atmosphere of the
courtroom was a fair one.
Senator Thurmond. You have a fine record and I wish you well
on the bench.
Judge Stewart. Thank you, sir.
Senator Thurmond. Thank you, Mr. Chairman.
Senator KOHL. We thank you very much, and you are excused.
Judge Stewart. Thank you, Mr. Chairman.
Senator KOHL. Our next nominee is Judge James Carr, who has
been nominated to be district judge for the Northern District of
Ohio.
Judge Carr, would you raise your right hand? Do you swear that
the testimony you shall give in this proceeding shall be the truth,
the whole truth and nothing but the truth, so help you God?
Judge Carr. I do.
Senator Kohl. Thank you, sir. You may sit down, and we would
be happy to be introduced to members of your family if they are
here with you.
120
TESTIMONY OF JAMES CARR, TOLEDO, OH, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Judge Carr. With me today, and it is a great honor for me and
it is a thrill for me for them to share in this honor, are, first, my
father, Edmund Carr, who is in his 82d year. At age 65, after retir-
ing from a successful career, he went to law school and he is still
an active and productive member of our family and society.
After him, I would like to introduce my wife, who is a part of ev-
erything I have ever done and ever been, and she, of course, is the
mother of our four daughters, Maureen, Megan, Darrah, and
Caitlin. I am happy, as well, to have my brother, and my brother-
in-law and my sister-in-law and their children, and several other
people.
Senator KOHL. Well, we are happy to have you all with us here.
Judge Carr. Thank you.
Senator Kohl. Before I ask you a question, I would like to men-
tion to you and people here today that Judge Carr comes highly
recommended by my very good friend, for whom I have the highest
regard, E. Michael McCann, the Milwaukee County district attor-
ney. I have a wonderful letter in your behalf from District Attorney
McCann and I will put it in the record at this point.
Judge Carr. Thank you.
[The letter referred to follows:]
Office of Dsitrict Attorney,
Milwaukee County,
Milwaukee, WI, April 18, 1994.
Senator Herb Kohl,
Hart Senate Office Building,
Washington, DC.
Dear Senator Kohl: I understand that the appointment of James G. Carr to the
Federal District Court for the Northern District of Ohio will be before the Senate
Judiciary Committee on Thvu^day, April 21, 1994. Mr. Carr would be a truly excel-
lent judge and I urge the committee to confirm his appointment.
Mr. Carr and I have served together for several years on the Board of Directors
of the Nationad Pretrial Services Resource Center, a not-for-profit corporation which
addresses the array of problems in the pretrial portion of the criminal justice sys-
tem. From my personal observations, I know Mr. Carr is a man possessing sound
judgement and a strong work ethic.
First as a law teacher and then as a federal magistrate, James Carr has consist-
ently demonstrated superior legal scholarship. His opinion as a magistrate in United
States V. Steven Wayne Yee, case No. 3:89 CR 0720, Northern District of Ohio, West-
em Division, is the finest legal evaluation of DNA, in my estimate, that has been
written.
I have taken the liberty of attaching a copy of Magistrate Carr's resume. His ex-
perience and publications further highlight his outstanding qualifications for the
federal judiciary.
James G. Carr is a man concerned with justice. He is felicitously graced with pa-
tience, common sense, unimpeachable integrity and a very fine mind.
I keenly recommend his confirmation and would be delighted if you see fit to in-
clude this letter in the hearing materials.
Sincerely yours,
E. Michael McCann,
District Attorney.
QUESTIONING BY SENATOR KOHL
Senator KoHL. Judge Carr, you have served as a Federal mag-
istrate for 15 years. In many respects, you have performed duties
similar to those of a Federal district court judge. If you are con-
121
firmed, how do you foresee your responsibilities changing on a day-
to-day basis from those exercised now as a U.S. magistrate?
Judge Carr. The principal change will be that I will be respon-
sible for the trial and also taking guilty pleas in felony cases and,
of course, sentencing in felony cases. Other than that, in terms of
my daily routine, I foresee practically nothing changing, except the
workload getting even bigger.
Senator KOHL. From your broad experience as a magistrate, can
you offer any suggestions to us on how to improve magistrates' cur-
rent role in the judicial system?
Judge Carr. I think quite candidly, Senator, that if all judges,
all district judges, could treat and assign the responsibilities to the
magistrates in the way that I have been treated for almost 15
years by the judges in our court, that would probably be a substan-
tial enhancement of the role that magistrates play. I have been ex-
tremely fortunate to work closely and well and be treated as a peer
by outstanding district judges.
Senator KOHL. I understand. Judge, that early in your legal ca-
reer you were a staff attorney with the Cook County Legal Assist-
ance Foundation. As part of your daily caseload, you represented
almost exclusively poor and disadvantaged clients. What role, if
any, and how, do you think a judge has in ensuring that the poor
and disadvantaged have access to the legal system?
Judge Carr. Well, of course, I think that there should be no im-
pediment to anyone coming into court. I routinely sign petitions to
proceed pro se and in forma pauperis. I perhaps should mention
that, at my suggestion, the Toledo Bar Association about 2 years
ago proposed to the district court of our district a procedure for de-
veloping a fund so that attorneys who take on pro bono cases for
indigent civil plaintiffs and civil defendants would be able to be re-
imbursed or have a modest amount of money paid to them to com-
pensate them for direct out-of-pocket costs. We had no such fund
of that sort in our court.
I will only say that, if confirmed, I hope to recall that proposal
to the attention of my colleagues and to take speedy action on it.
I think that perhaps one of the great instances of unfairness in our
system is the inability of civil plaintiffs and defendants to obtain
counsel who will represent them faithfully and competently.
Senator KoHL. A last question before I turn it over to Senator
Thurmond. Mandatory minimum sentences have been the subject
of much debate. In fact, yesterday at a hearing that I chaired, two
Federal circuit court judges criticized mandatory minimums, and
one of my colleagues called them a "rule of thumb rather than a
rule of reason."
As a Federal judge, what would you do if faced with a situation
where you vvere called upon to impose a sentence that you felt was
too harsh either because of a mandatory minimum or because it
was called for by the sentencing guidelines? What would you do in
that case?
Judge Carr. I would be required to impose the sentence that was
required by law.
Senator KOHL. How do you feel about mandatory minimums?
Judge Carr. I think that they are troublesome in a couple of re-
spects. One is that they can have a tendency to undercut the effect
122
of the sentencing guidelines and the Sentencing Commission. Sec-
ond, they make it extremely difficult, if not impossible, to treat sep-
arate cases and individusds separately when those persons are con-
victed of the same statutory offense.
Senator KOHL. All right, thank you.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator THURMOND. Thank you, Mr. Chairman. We frequently
hear the argument that courts act in response to various social
problems because the legislature has failed to act on its own. How
would you respond to this defense of an activist judiciary?
Judge Carr. I don't think it is much of a defense at all. I don't
think it is a position that can be asserted at all. I think that the
court — the last thing any court should be doing is acting either in
response to its perception of some social problem or its personal
view or outlook as to how things ought to be. We are constrained
by the law, beginning with the Constitution, the statutes and the
precedent and the rules that have been adopted to guide us in our
procedure, and that is the only place we can look in performing our
duties.
Senator Thurmond. Judge, someone called my attention to a
speech you made in 1990 to the New Probation and Pre-Trial
Chiefs Conference. It is alleged that you stated, 'The past couple
of years have encompassed the most thoroughgoing change in
penalogical philosophy in our country's history — a shift from reha-
bilitation to prolonged and thoroughgoing incapacitation." This ar-
ticle says you claimed that in making this shift, Congress has
manifested an approach that probably can best be described as
gulag syndrome.
Would you tell us what you meant by that?
Judge Carr. What I meant by that. Senator, was that as a result
of sentencing reform, principally mandatory minimum sentences,
we have many people, often quite young, people in their early 20's,
charged with very serious offenses, but, as a result of the Federal
sentencing structure, find themselves confronted with very long
terms of incarceration, including life imprisonment.
And what I meant by that was that we have substituted what
historically had been an intent or a desire to undertake to rehabili-
tate people, particularly younger persons charged with serious of-
fenses and convicted of very serious offenses, and instead have
adopted an approach that in many respects sends them away, inca-
pacitates them and obviously protects society in that regard, while
at the other hand turning our back to a fair extent on the rehabili-
tative efforts.
Senator Thurmond. Do you continue to believe that Congress'
approach to sentencing can best be described as the gulag S3ni-
drome?
Judge Carr. I think that when one adopts particularly manda-
tory minimum sentences that mandate in all instances extremely
long or very long periods of incarceration, up to and including life
terms when you start multiplying sentences — I think that that, al-
though a very strong statement, is one observation. Let me make
clear, however, as I said to Senator Kohl — and this is obviously
123
something anyone in this position, anybody contemplating the
honor of being confirmed by the Senate, considers, and I have abso-
lutely no doubt whatsoever that when called upon to do so, I will
apply the sentencing guidelines and the mandatory minimums
faithfully and in full accordance with the law and as required by
Congress.
Senator Thurmond. Was your purpose in making this statement
to criticize the Congress, or what was your purpose?
Judge Carr. My purpose may have been to criticize the Con-
gress. I think it was more to express concern about the displace-
ment of rehabilitation as a paramount penalogical goal.
Senator Thurmond. At the time you made this statement, you
were a Federal magistrate?
Judge Carr. Yes, sir.
Senator Thurmond. Do you believe that persons are being held
in U.S. prisons solely because of their political views?
Judge Carr. No, sir, absolutely not, under no circumstance, and
if that is an interpretation of that phrase or statement, that is ob-
viously incorrect in terms of my expression.
Senator Thurmond. That is all, Mr. Chairman.
Senator KoHL. We thank you. Senator Thurmond, and we excuse
you. Judge Carr.
Judge Carr. Thank you. Senator Kohl.
Senator KOHL. We now have Judge Clarence Cooper. Judge Coo-
per has been nominated to be district court judge for the Northern
District of Georgia.
Judge Cooper, would you please raise your right hand? Do you
swear that the testimony you shall give in this proceeding shall be
the truth, the whole truth and nothing but the truth, so help you
God?
Judge Cooper. I do.
Senator KOHL. We thank you, sir. Be seated. If you have any
members of your family with you, we would be delighted in getting
to know them.
TESTIMONY OF CLARENCE COOPER, ATLANTA, GA, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Judge Cooper. Thank you. Mr. Chairman, Senator Thurmond, I
would like to introduce members of my family at this time, and I
do want them to stand since they are seated in the rear of this au-
dience.
My wife, Shirley, will you please stand? My mother. Hazel Coo-
per; my mother-in-law, Ms. Lillie Mae Elder; my daughter, Jennae
Cooper; and my son, Corey Clarence Cooper. I have two family
members seated up front, to my left. Emmanuel and Pamela
Payton, will you both stand?
[The persons stood.]
Senator KOHL. Well, we are delighted to have you all here with
us today.
Judge Cooper, in 1981 and 1982, you presided over the highly
publicized trial of Wayne Williams, the man who was found guilty
of murdering 2 of the 28 young blacks who were killed in Atlanta.
Citing potential harm to the city's children, you at that time re-
fused to allow television cameras in the courtroom during that
124
trial. Having cameras in the courtroom sometimes requires a bal-
ance between the value of a free press and the interest in having
justice rendered fairly and without distortion.
Do you, sir, believe that TV cameras should ever be permitted in
Federal courtrooms?
Judge Cooper. I am a proponent of cameras in the courtroom,
and despite the ruling that I entered in that case, I personally felt
that maybe the case should have been televised, but I received so
many letters from psychiatrists, mental health experts, and child
psychologists who suggested that probably the case shouldn't be
aired simply because so many children had experienced traumatic
psychological and emotional problems.
And I don't know whether or not you are aware of it. Senator,
but I did hold a hearing on that issue as to whether or not it
should be televised. During that evidentiary hearing, I heard from
mental health experts, psychologists, psychiatrists, social workers,
and other people from other disciplines, and all of them, except one
person, felt that the case should not be aired because of the trauma
that these kids experienced, and they felt that if it were televised,
then these traumas would recur. So I acted on what was in the
record, and the decision was one with which both parties agreed.
QUESTIONING BY SENATOR KOHL
Senator KoHL. So I would take it, as a Federal judge, if it were
permissible, you would allow cameras in your courtroom?
Judge Cooper. I think it brings about a greater understanding
on the part of the public as to what we do, particularly when it
comes to the civil process because it is so complicated and cum-
bersome, and I think many people fmd that more of a mystery than
they do the criminal process. So I think it would be something that
the public could benefit from, were they able to see a civil trial in
Federal court from time to time.
Senator KoHL. In the past few years, there has been a growth
in the use of secrecy orders in product liability, malpractice, and
environmental cases. Critics of this trend claim that those orders
prevent the public from learning about very serious threats to pub-
lic health and safety.
During your years in private practice, I know you had broad ex-
perience in civil litigation. Judge Cooper, how should a judge who
hears a request to make documents in such cases confidential bal-
ance the public's right to know against a litigant's right to privacy?
Judge Cooper. Senator, that is a very difficult task to undertake,
as you know. It requires much of a judge and, of course, I did han-
dle several cases involving that issue. The judge has to do a bal-
ancing act; he has to weigh the interests of both sides, the public's
right to know as opposed to the litigant's right to keep certain mat-
ters confidential and private.
Some of these matters are very sensitive matters and some may
involve people not directly or indirectly a part of the lawsuit, but
may affect them adversely. Also, a judge should be guided by some
of the parameters he may consider and how the law has been
evolving in this area in terms of his ultimate decision. But I think
his decision should be a reasoned one and it should be based on
125
not only what is in the best interests of the public, but also the
rights of the litigants.
Just remember, these are private litigants who themselves some-
times agree that maybe certain matters should be kept secret not
only to protect themselves, but to protect other people.
Senator KoHL. Well, let me ask you this. I have introduced legis-
lation that would prohibit judges from allowing confidentiality or-
ders when the information sought to be made secret relates to pub-
lic health and safety. It would prohibit confidential orders when we
are talking about public health and safety.
Yesterday, we held a hearing on this measure, but opponents of
the bill made the following argument, and I think you mentioned
it just a minute ago, that the civil justice system is about settling
private disputes between parties and not necessarily protecting the
public interest. How do you
Judge Cooper. Don't misunderstand me. That is one of the con-
siderations one must make in balancing the various interests.
Senator KOHL. Well, how do you feel about a law that would say
when public health and safety is involved, a judge cannot allow a
secrecy order?
Judge Cooper. Senator, I don't want to prejudge what might be
before me as a Federal district court judge, and that very issue
might arise and I don't want to commit myself at this time. I can
only say that I would balance the competing interests and make a
decision that I think would be fair to the parties involved, but I
don't want to commit myself to a position at this time.
Senator KoHL. All right, very good. You should be running for of-
fice. [Laughter.]
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman. I believe you
were in the Army 2 years in the Judge Advocate General's Corps?
Judge Cooper. Yes, I was.
Senator Thurmond. I guess you found that an interesting experi-
ence.
Judge Cooper, Quite interesting.
Senator Thurmond. What was your rank there?
Judge Cooper. I was an E-6, a specialist E-6, when I came out
of service after my 2-year stint — ^E-6.
Senator Thurmond. You served as a Fulton Superior Court judge
and on the Georgia Court of Appeals, also — 10 years on the Fulton
court, and you are still on the court of appeals, is that right?
Judge Cooper. Yes. I presently serve on the Georgia Court of
Appeals, where I have been for the last 4 years. Prior to that, I was
on the Fulton Superior Court bench 9 years.
Senator Thurmond. Which type work do you like the best?
Judge Cooper. Well, I am willing to return to the trenches. I
think I found that much more exciting than the work that I do as
an appellate court judge, although I really enjoy my appellate court
work, but I do miss tremendously being a part of that whole proc-
ess that we call the jury trial system. So I would love to return to
that.
126
Senator Thurmond. Do you see any difficulty in transferring
from that type of work
Judge Cooper. Having been on the bench for 18 years — I am
sorry, Senator; go ahead.
Senator Thurmond. You didn't let me get through.
Judge Cooper, OK, that is right. I am sorry.
Senator Thurmond. Do you see any difference in the work you
did then and the work you will do now as a judge of the Northern
District of Georgia?
Judge Cooper, The only difference would be the kinds of cases
that I would be exposed and handling, were I confirmed and be-
came a Federal district court judge, but I think the skills are basi-
cally the same. I have been at judging for now 18 years, having
served as a city judge, a county judge, and now on the State appel-
late court. So I have been able to acquire certain skills over the
years that should aid me in this transition.
But there are areas of the Federal law that I have never been
exposed to — title VII cases, antitrust cases, tax cases, patent rights
cases, and other cases of this nature, and those are cases that I am
looking forward to if confirmed by the Senate.
Senator Thurmond. How would you handle an instance in which
counsel for one of the parties in your court was obviously not a
skilled litigator and not prepared to adequately represent the inter-
ests of his or her client?
Judge Cooper. That is a very difficult question, I have been con-
fronted with that on several occasions, and I understand that, you
know, as a judge I must respect the wishes of one of the parties
as to whom he or she wants as his or her attorney. That issue is
even more pronounced in criminal matters than civil matters, but
I respect the issues of the parties as to whom they want to des-
ignate as their lawyers and I try not to interfere, although from
time to time a judge may do some things to help the case along.
But that is something that a judge is very uncomfortable with
when there is a mismatch in court. One of the parties to the litiga-
tion has an incompetent lawyer and the other side has a very com-
petent lawyer, and so you have to live with those results, regret-
tably.
Senator Thurmond. Under the Constitution, we have three
branches of government. The legislative branch, the Congress,
makes the law. The executive branch, headed by the President, ad-
ministers the law. The judicial branch, headed by the Supreme
Court, interprets the law.
Now, we have found that in some cases some of the judges, if
they didn't like the law, f^lt they had a right to modify it and use
their own opinions. How do you feel about that?
Judge Cooper. Well, I think it would be wrong for a judge to ig-
nore precedent, stare decisis, to usurp the power of the legislative
branch of government. Judges are not there to make law. We are
there to interpret and apply law.
Senator Thurmond. Some call it judicial activism, taking to their
power something they don't have. Your job as a judge is to inter-
pret the law and not make the law.
Judge Cooper. I understand that.
Senator Thurmond. Do you agree with that?
; 127
Judge Cooper. Wholeheartedly.
Senator Thurmond. That is all. Thank you.
Judge Cooper. Thank you.
Senator KoHL. We thank you, Judge Cooper, and you are ex-
cused.
Judge Cooper. Thank you.
Senator KOHL. Our next nominee is Judge Frank M. Hull. She
has been nominated to be district court judge for the Northern Dis-
trict of Georgia.
Judge Hull, will you raise your right hand? Do you swear that
the testimony you shall give in this proceeding shall be the truth,
the whole truth and nothing but the truth, so help you God?
Judge Hull. I do.
Senator KoHL. Thank you, Judge Hull. If you would like to intro-
duce any members of your family, we would be delighted to meet
them.
TESTIMONY OF FRANK M. HULL, ATLANTA, GA, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Judge Hull. Thank you. First, Senator Kohl, I would like to
thank you for chairing the hearing on this busy afternoon for you,
and I would like to thank Senator Thurmond for your presence on
this busy afternoon for you.
At this time, joining me are my family members from Georgia:
my husband, Tony Aeck; my two children, Richard Hull Aeck, and
our daughter, Molly Hull Aeck; my mother, another Frank— she is
Frank Mays Pride; my uncle, Inman Mays; my sister, Carol Hull
Palmer; my brother, James Meriwether Hull; a close family friend,
Ms. Wilma Hudson; a cousin, Katherine, Mays; another close fam-
ily friend, Terry Adamson, from Washington, DC, who was my law
school classmate 20 years ago; two other close family friends, Mark
Eaton and Brooksie Koopman; my cousin, Richard Sullivan.
I have my secretary of 12 years, Darlene Buchanan, who is here.
I have my current law clerk, Diana Willis, and I am proud to have
two former law clerks, Theresa Gilstrap and Renata Turner, here
with me today.
Senator KOHL. Well, we are delighted to have such a consider-
able entourage. [Laughter.]
Judge Hull. And I appreciate your allowing me to introduce all
of them.
QUESTIONING BY SENATOR KOHL
Senator KOHL. Well, we thank you. This hearing was originally
scheduled for a smaller room, and I went to that room before and
it was empty and they told me to come down here to this larger
room. Now, I know why.
Judge Hull, much of your experience has been in State court. If
confirmed, you will face a docket that includes a heavier caseload
of constitutional, employment, and civil rights cases. What steps do
you plan to take to familiarize yourself with those areas of the law
with which you may lack experience at the present time?
Judge Hull. There would be a number of steps I would follow.
First, on the district court, if I am confirmed, that I would be join-
ing, several of the judges have an in-house training program for
128 \
the other judges. Our chief judge has already informed Judge Coo-
per and me, if we were confirmed, that would be occurring over the
next 4 months.
I would also take advantage of the materials that have already
been sent to all of us from the Federal Judicial Center, as well as
the various orientation programs that you have the opportunity to
attend as a Federal judge, if confirmed.
Senator KoHL. Very good. Judge Hull, I understand that Atlanta
has something called the Atlanta Project, which is designed to at-
tack poverty at its roots by dividing Atlanta and surrounding coun-
ties into cluster communities and employing coordinators to guide
local residents in seeking ways to enhance their quality of life.
In October 1993, you piloted an effort in the Washington Cluster
in which residents became voluntary probation officers and coun-
selors for first-time nonviolent offenders. Could you tell us how suc-
cessful that program was and did it, in fact, spread to other parts
of the city, as was originally hoped?
Judge Hull. The Atlanta Project wants to undertake any new
program as a pilot for at least 2 years, so it has not spread yet be-
cause they want to work out all of the problems in the program,
so it has not spread and, frankly, it is too early to tell. However,
we have a neighboring jurisdiction that has used such a program,
Cobb County, and it has been extremely successful there.
Senator Kohl. Judge Hull, Congress is contemplating legislation
aimed at reducing overcrowding in Federal courts by allowing Fed-
eral judges to assign some of their smaller cases to court-appointed
arbitrators. Now, many judges and lawyers have expressed con-
cerns about this approach. They say that it infringes upon the
rights of citizens to a jury trial. What do you think about this? Do
you have any thoughts to offer us?
Judge Hull. In Fulton County, we have had an arbitration pro-
gram for 10 years that I have used very frequently as a trial judge,
and this has been our experience. The arbitration program has
three court-appointed arbitrators from lawyers and other citizens
who volunteer to serve or who are paid if they do not volunteer.
We assign a case to arbitration at a very early phase in the case.
It is nonbinding arbitration; that is, the decision is nonbinding, but
it is binding that you must attend the arbitration. Lawyers are
given 1 to 2 hours to present their side. The arbitrators make a de-
cision, and then if someone is dissatisfied, they have 30 days in
which to simply write a letter, no cost, and say I want my jury
trial. That program has been extremely successful.
In Atlanta, we are assigned 1,800 new cases. In fact, my Federal
court caseload will be less considerably in terms of number of cases
than my current State caseload. We have found arbitration — 50
percent of the cases settle before they even go to the arbitration be-
cause they were going to settle anjrway. Another 25 percent settle
within 3 months after the arbitration. I favor it in a nonbinding ar-
bitration matter.
Senator Kohl. I thank you. That is a very good answer.
Senator Thurmond,
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman.
129
I notice you were bom in Augusta, GA.
Judge Hull. Yes, and I have — all my relatives here are mostly
bom in Augusta, too. Senator.
Senator Thurmond. I live at Aiken, just 17 miles from Augusta.
I had two brothers that were obstetricians at Augusta, Dr. William
Thurmond and Dr. Greorge Thurmond.
Judge Hull. And I know of them, sir, and you may have known
of my grandfather, Jim Hull, from Augusta, many years ago.
Senator Thurmond. You don't anticipate any difficulty in chang-
ing to a new type job as a Federal judge from what you are doing
now, do you?
Judge Hull. No, sir, I do not.
Senator Thurmond. Do you believe that a judge should assume
direct control over complex issues and cases in order to avoid
delays in effective management of such cases?
Judge Hull. Yes, sir, I do. In fact, 100 years ago you could just
hear the case and decide it. Today, you have an equally important
role to be a hands-on case manager because of the explosion in liti-
gation. Particularly with my State court caseload, I have done that
through a number of techniques, which I would be glad to expound
upon if you would like, already for the last 10 years as a trial
judge, sir.
Senator Thurmond. What do you believe will be the most re-
warding aspect of serving as a Federal judge?
Judge Hull. The same rewarding aspect I have had for 10 years
as a trial judge, attempting to help litigants resolve disputes in a
peaceful, orderly fashion earlier than later.
Senator Thurmond. I don't think I have any further questions.
I wish you well on the bench.
Judge Hull. Thank you. Senator.
Senator KOHL. We thank you. Judge Hull.
Judge Hull. Thank you, Senator Kohl.
Senator KOHL. Our next nominee is Mary Lisi, who has been
nominated to be district court judge for the District of Rhode Is-
land.
Ms. Lisi, if you would raise your right hand, do you swear that
the testimony you shall give in this proceeding shall be the truth,
the whole truth and nothing but the truth, so help you God?
Ms. LiSL I do.
Senator KOHL. We thank you. You may be seated, and if you
have any members of your family here, we would love to meet
them.
TESTIMONY OF MARY M. LISI, PROVIDENCE, RI, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND
Ms. LiSL I do. I am very happy to say that my husband, Stephen
Reid, is here with our two children, Jonathan, who is 13, and Jef-
frey, who celebrated his 10th birthday 2 days ago, along with my
mother-in-law, Eleanor Reid. I have some friends here, also, from
the State of Rhode Island — Jason Zaborsky, who is a student at
American University, and also Beth Bailey and her husband, Bob
Bailey.
130
QUESTIONING BY SENATOR KOHL
Senator KOHL. Well, we are delighted to have you all here today.
Ms. Lisi, your questionnaire indicates that you have served as an
assistant public defender, as a child advocate, and most recently as
chief disciplinary counsel. If confirmed, how do you plan to make
the transition from advocate to impartial arbiter?
Ms. Lisi. I have already begun to think along those lines. Sen-
ator Kohl, in terms of the kinds of studying that I will need to do
to bring myself up to speed, and also to start thinking of myself
less as a proponent of a particular position, but rather as an arbi-
ter of disputes.
Senator Kohl. All right. Why do you want this job?
Ms. Lisi. Senator, my entire professional career has been dedi-
cated to public service. It is something that I enjoy. It is something
that I have given a great deal of my personal energies to because
I receive so much back in the way of satisfaction. I can think of
no higher honor and no higher aspiration for a practicing attorney
than to serve as a Federal court judge.
Senator Kohl. Recently, there has been a growing concern about
violent juvenile crime at both the State and Federal levels, as you
know. In part, as a response, we have begun to see a trend to open
more juvenile records, as adult records already are. As a one-time
public defender, what do you think about this trend?
Ms. Lisi. I can only tell you my own experiences in the juvenile
area, which are now somewhat aged because I have been out of
that system for several years. I can tell you that when I started
as a public defender in 1977 in the juvenile division, we were deal-
ing with children who were committing the kinds of offenses that
one would almost expect to see in the juvenile courts. But by the
time I ended my tenure with the public defender's office, we were
seeing children coming in at much younger ages committing much
more serious offenses.
I think that what you are suggesting as far as looking at those
records is very important in order for us to understand how we can
work with those individuals who have committed crimes as adults
and what kinds of services or incarceration may be necessary in
order to protect the public from them.
Senator KOHL. You pointed to the fact, and I alluded to it also,
that we have an increasingly serious problem with juvenile crime
in our society. What has happened in our society? What has devel-
oped over the last decade or two so that we confront this today as
we do?
Ms. Lisi. Senator Kohl, one of the things I did as a public de-
fender in representing those indigent offenders was to go back and
find out who they were, and I was astounded when I read their
case files which, in our family court, included not only the offenses
for which they were before the court, but also the cases of abuse
which had been brought before the court when they were much,
much younger.
That is when I changed and began to work as an advocate on be-
half of abused and neglected children because I firmly believe that
the only way, or perhaps the most successful way that we can work
with juvenile offenders is to reach them when they are much
131
younger and to reach that family unit before it becomes so dysfunc-
tional that any amount of services will not have success.
Senator KOHL. Are you saying that perhaps, in your opinion, the
major cause of some of these problems in our society is dysfunc-
tional family units, as opposed and contrasted with a generation or
two ago?
Ms. Lisi. I believe so, sir, yes.
Senator Kohl. All right. Ms. Lisi, what would you do when faced
with a first circuit precedent that controlled a matter before you
but with which you personally disagreed?
Ms. Lisi. I think I am bound to set aside any personal feelings
I have about that precedent and I am bound to apply it.
Senator KOHL, I thank you.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman.
I notice from your resume you are with the Rhode Island Su-
preme Court. Now, as I understand it, you are not on the court,
but you are counsel to the court, is that correct?
Ms. Lisi. I am the chief disciplinary counsel for the supreme
court.
Senator Thurmond. You have not been a judge?
Ms. Lisi. No, sir.
Senator Thurmond. You don't anticipate any trouble in the tran-
sition to being a judge, do you?
Ms. Lisi. No, sir, I do not.
Senator Thurmond. The phrase "judicial activism" is often used
to describe the tendency of judges to make decisions on issues that
are not properly within the scope of their authority. What does the
phrase "judicial activism" mean to you?
Ms. Lisi. I think. Senator Thurmond, that the description that
was provided to us in the questionnaire probably most aptly de-
scribes what judicial activism is, and if you have my questionnaire
in front of you, you know that my feeling is that a Federal court
judge is bound by the parameters of article III and the acts of this
Congress.
Senator Thurmond. Sometimes, judges don't agree with the law
in some respects, and you can understand that, and they attempt
to assert their own opinions. How do you feel about that? Congress
is the one that has to change the law and not the judges. Are you
in accord with that?
Ms. Lisi. I am, sir.
Senator Thurmond. Thank you. I wish you well on the bench.
Ms. Lisi. Thank you very much.
Senator KOHL. Thank you, Senator Thurmond. Thank you very
much, Ms. Lisi.
Our final nominee today is Judge Louis Sands. He has been nom-
inated to be district court judge for the Middle District of Georgia.
Judge Sands, if you would raise your right hand, do you swear
that the testimony you shall give in this proceeding shall be the
truth, the whole truth and nothing but the truth, so help you Gk)d?
Judge Sands. I do.
132
Senator KoHL. Thank you, sir. We would be delighted to meet
members of your family if they are with you.
TESTIMONY OF W. LOUIS SANDS, MACON, GA, TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA
Judge Sands. Thank you very much, Senator. First of all, I have
with me my wife, Carla Heath Sands, and she is holding our
youngest, Billye Louise Sands, who, for the benefit of the decorum
of this body, it is probably best that she is asleep now. I also have
my daughter, Angela Sands, who will be a student at Georgetown
University Law School later this year, and my son. Walker Louis
Sands; my mother-in-law, Ms. Martha Johnson; my law clerk, Vic-
toria Spear; and also a family friend, Tina Valdecanas.
Thank you very much, Senator.
QUESTIONING BY SENATOR KOHL
Senator KOHL. Well, we thank you all for coming here today. It
is a pleasure to have you.
Judge Sands, in recent years much has been said about Federal
courts' increasing caseloads and the resulting problem of docket
backlog. This backlog has had an adverse effect on the litigants be-
fore the court, who have been forced to suffer at least some, if not
significant delay in the resolution of their claims.
If confirmed, what steps would you take to ensure that your
docket progresses as quickly as possible?
Judge Sands. Well, Senator, that, of course, has been a very
great difficulty not only for the Federal courts, but it has been a
challenge for the State courts, such as the one that I serve on, and
it is a problem we constantly look at. I would expect to do the same
on the Federal bench, if confirmed, as I have tried to do as a State
court judge; that is, to look first to any means that may have al-
ready been set up or may have been suggested by others, but I be-
lieve, for the Federal courts, one has to make good use of the mag-
istrates. In the circuit where I live, we happen to have some very
able magistrates.
Also, there is some discussion about other means, such as arbi-
tration or matters through which litigants can be referred. But I
believe it is a matter that has to be constantly reviewed, any of
those types of suggestions. One of the first things that I would do,
of course, would be to consult with the persons already on our local
bench, but I would be open to any suggestions and again would use
those type of reviews and new techniques that we would come up
with, as we have done on the State bench.
Senator KOHL. All right. I would like to ask you a question I
asked one of the previous nominees, and that is about court secrecy
orders. As you know, there is a growing tendency to allow court se-
crecy orders to stand. I have a bill which would make a judge, by
requirement, not allow any court secrecy agreement that endangers
public health and safety. In other words, if there is a defective
automobile, of which there may be 5 or 10,000 defective auto-
mobiles, and one person has an accident and comes to court and
is prepared to accept a settlement, provided it is kept secret, that
person would not be allowed to do it. The judge would have to rule
that there is a public health and safety issue. There may be 10,000,
133
or 20,000, or 30,000 people who need to know about this defective
automobile, so we cannot allow this judgment to be made secret.
How do you feel about that?
Judge Sands. Well, Senator, I am not specifically familiar with
what you are referring to, the bill that you are referring to, but I
think I understand to what you refer by your description.
Senator KoHL. I tried to explain it, yes.
Judge Sands. Yes; by your description, I do understand.
Senator KOHL. Right.
Judge Sands. First of all, I understand that there is a very dif-
ficult balancing to take place by what you suggest. I believe, of
course, that the courts are public. They are provided for us to have
litigation there so that anyone who wishes to observe may do so.
But I am also aware, on the other hand, that there are certain
matters that are so strictly private, some things as we have had
in the past in criminal cases that are maybe an endangerment. So
I believe, on the other hand, or the other side, there are matters
that might need to be considered closed, possibly.
Senator KoHL. Well, now, there is the opportunity today for a
judge — ^no requirement, but the opportunity today for a judge to set
aside any secret arrangement if, in his judgment or her judgment,
it violates public health and safety. What would you do in the case
of a defective automobile that had caused a death and the plaintiff
was offered a considerable settlement, provided that he was willing
to keep it secret, and he was willing to do it and the defendant
wanted to do it, and you had, as you would have, the opportunity,
but not the requirement, to set that secrecy order aside in the in-
terests of the larger public health and safety of our country? What
would you do?
Judge Sands. Senator, first of all, of course, I would not like to
right here prejudge how I would do it in that particular case, but
I certainly would listen to all of the facts, take into consideration
all of the circumstances on both sides of the case, as I have tried
to do in all cases in the past, and make a decision which I believed
was fair and consistent with the public interest, as well as to abide
fully with whatever law did apply.
Senator KOHL. Finally, do you believe that pro bono work is a
good thing in our society, a necessary thing in our society? Do you
think we ought to make it, second, obligatory on the part of law-
yers, particularly young lawyers as they are coming up in their
communities?
Judge Sands. I think it is very important to our society that law-
yers provide service pro bono. I had the honor and privilege of
being the president of our local bar, and at various times in our
court to this day as new lawyers come aboard, we have a short
ceremony where they come before the bench and I have tried to
emphasize on each of those occasions to the new lawyers how im-
portant it is not only to exercise the privilege of earning a living
by practicing law, but also to return something to the community,
to give something back. So I have tried to do it in that manner.
I believe somehow, if we were to make it absolutely mandatory,
though, I think it would take away the very voluntary nature of
it. I believe it would be something that should definitely be encour-
aged, but I doubt that we would get the full benefit of it if we made
134
it strictly mandatory, but definitely something we should encourage
fully.
Senator KOHL. I thank you very much.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator THURMOND. Thank you.
I notice you graduated from the Walter George School of Law in
Macon, GA.
Judge Sands. I did, sir.
Senator Thurmond. I spoke there several years ago. I don't
guess you were a student at that time, were you?
Judge Sands. I was a student there. Senator, from 1971 to 1974.
Senator Thurmond. I have forgotten now what year I spoke
there, but I
Judge Sands. I would have seen you. Senator. I don't believe I
was there at that time because certainly I would have attended.
Senator Thurmond. I was very much impressed with that school,
though. I think it is a good school.
Judge Sands. Thank you very much.
Senator Thurmond. The American Bar Association in consider-
ing judges for the Supreme Court especially consider, first, integ-
rity. Have you ever been arrested for any crime?
Judge Sands. No, I have not. Senator, fortunately.
Senator Thurmond. They consider judicial temperament. You
heard me talk a few moments ago about temperament of a judge,
that he ought to always be courteous and be calm and control him-
self Do you agree with that?
Judge Sands. Yes, I do, Senator. It is very important. I believe,
as you stated, the greater the power a person has, the more hum-
bleness they should show.
Senator Thurmond. That is right. The other thing was profes-
sionalism. I think you have the professionalism here. Having grad-
uated from the Walter F. George School of Law, your education
qualifies you there. You have had considerable experience in var-
ious ways. I notice you were with the Army Reserve in the Signal
Corps.
Judge Sands. Yes, I was.
Senator Thurmond. What was your rank then?
Judge Sands. I was commissioned when I graduated from college
as a second lieutenant and I later attained the rank of first lieuten-
ant when I went into active duty, and at the time I resigned my
commission I was at the rank of captain.
Senator Thurmond. Do you still hold that rank?
Judge Sands. No; I resigned the commission several years ago.
Senator
Senator THURMOND. I see.
Judge Sands [continuing]. After completing my required service
time.
Senator Thurmond. I notice you are a superior court judge in
Georgia.
Judge Sands. That is correct, sir.
135
Senator Thurmond. I was a circuit court judge in South Caro-
lina. I believe that is the same kind of judge, the highest trial court
in the State.
Judge Sands. It is, yes, sir.
Senator Thurmond. We call them circuit courts and you call
them superior courts, I believe. In New York, they call them supe-
rior courts, too.
Now, this will be a trial court you are going on here, the district
court, so it will be similar type work. It will just be in the Federal
court rather than the State court.
Judge Sands. Yes, sir.
Senator Thurmond. So you don't anticipate any trouble there in
making that transition, do you?
Judge Sands. I do not. Senator.
Senator Thurmond. I think you have got a good record. I wish
you well on the bench.
Judge Sands. Thank you very much.
Senator Thurmond. I wanted to mention one more thing to you.
I want to note for the record that you are a member of a club, the
Homosophian Civic Club of Macon.
Judge Sands. Yes, I am, sir.
Senator Thurmond. At least as of 2 months ago, it had never
had a female member in its history, had it?
Judge Sands. That is correct, I believe. Senator.
Senator Thurmond. I just wanted to add that you are hardly
unique in this respect. Many of the Clinton judicial nominees have
had similar club issues, but I must observe that in the days when
the Republicans controlled the Senate and were making nomina-
tions, there would have been an objection to them because they be-
longed to a club that didn't have minorities or didn't have women.
But you are not responsible for that, are you?
Judge Sands. I am not. In fact. Senator, there is a woman mem-
ber of the club and I believe I was one of the persons who encour-
aged that membership.
Senator Thurmond. I think some of the Democrats went too far
in raising a point about these memberships in clubs, so long as
they are fair and just. Anyway, I just wanted to make the point
there that I hope there won't be a double standard when Repub-
licans get back in control and it will be the same standard as the
Democrats use.
Judge Sands. Yes, sir.
Senator Thurmond. Thank you very much.
Senator KOHL. All right. Well, that is not going to be very soon.
[Laughter,]
But I wanted to say this, and I was going to say this before you
made your remarks. I am really honored to be sitting on the same
panel with you, and I think everybody here today feels very special
about having you in our presence.
Senator Thurmond. Thank you. Well, I want to commend you for
presiding over these hearings. You do it quickly, you do it effi-
ciently, and we save a lot of time. Some of these presiding officers
take too long. You do a good job. [Laughter.]
Senator KOHL. Judge Sands?
136
Judge Sands. Senator, not to extend these hearings, but I would
be remiss if I failed to mention a law professor. When Senator
Thurmond mentioned Mercer's Walter F. George School of Law —
I have the great fortune of having a professor here who was for-
merly of that school, Ms. Leah F. Chanin, who is also present, and
I would like for her to stand.
[Ms. Chanin stood.]
Senator Kohl. Thank you very much.
We thank you all for being here today.
Senator Thurmond. I would like to shake hands with you nomi-
nees, if you will come around here in just a minute as I come down
there before we leave.
Senator KOHL. All right. These hearings are closed.
[Whereupon, at 4:03 p.m., the committee was adjourned.]
[Submissions for the record follow:]
137
SUBMISSIONS FOR THE RECORD
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Carl Edmond Stewart
Address: List current place of residence and office
address(es) .
Home: 6805 Snowmass Street
Shreveport, Louisiana 1'. 119
Office: 430 Fannin Street
Shreveport, Louisiana 71101
Date and place of birth.
January 2, 1950
Shreveport, Louisiana
Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address(es).
Spouse: Jo Ann Southall Stewart
Drug Intervention Coordinator
Caddo Parish School Board
1961 Midway Street
Shreveport, Louisiana 71130-2000
Education : List each college and law school you have
attended, including dates of attendance, degrees received
and dates degrees were granted.
Loyola University School of Law, New Orleans, Louisiana
September 1971 - May 1974
Juris Doctor of Law Degree, 1974
Dillard University, New Orleans, Louisiana
September 1967 - May 1971
Bachelor of Arts Degree in Psychology
Magna Cum Laude, 1971
- CES 1 -
138
5. Rmplovment- Record : List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you
were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
Part-time Initial Action Unit, Nighttime Claims Handler,
Allstate Insurance Company, Metairie, Louisiana,
1972-1974
Trial Defense Counsel and Legal Assistance Attorney,
Office of the Staff Judge Advocate, United States
Army, Fort Sam Houston, Texas, 1974-1977
Associate Attorney, Piper & Brown Law Firm, Shreveport,
Louisiana, October 1977-January 1978
Staff Attorney, Louisiana Attorney General's Office,
Shreveport, Louisiana, January 1978-April 1979
Assistant United States Attorney, Western District of
Louisiana, Shreveport, Louisiana, April 1979-
November 1983
Partner, Stewart & Dixon, A Professional Law Corporation,
November 1983-April 1985
Special Assistant District Attorney and Assistant
Shreveport City Prosecutor, 1983-1985
Adjunct Instructor, Louisiana State University-Shreveport,
College of Business, Department of Management and
Marketing, Spring 1982-Spring 1985
District Judge, First Judicial District Court, Division D,
State of Louisiana, April 1985-February 1991
Judge, Second Circuit Court of Appeal, State of Louisiana,
February 1991-Present
7. Military Service : Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
Yes.
October 1974 - October 1977
Captain, U.S. Array Judge Advocate General's Corps
Fort Sam Houston, Texas
437-86-7477
Honorable Discharge
- CES 2 -
139
8. Honors and Awards : List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Charter Member and Team Leader, Harry V. Booth Chapter,
American Inns of Court, Shreveport, Louisiana
9. Bar Associations ; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups. The following
memberships are current:
The American Bar Association and Judicial Administration
Division
The National Bar Association and Judicial Council
The Louisiana State Bar Association
The Harry V. Booth Chapter, American Inns of Court,
Shreveport, Louisiana (Charter Member)
The Black Lawyers Association of Shreveport-Bossier
The Louisiana Conference of Court of Appeal Judges
The Louisiana State Bar Association Bench/Bar Liaison
Committee
10. Other Memberships : List all organizations to which you
belong that are active in lobbying before public bodies.
None.
Please list all other organizations to which you belong.
FORMER BOARD OF DIRECTOR MEMBERSHIPS
Caddo-Bossier Community Council, 1981-1985
Carver Branch YMCA, 1981-1987
HAP House Multi-Disability Work Center, 1981-1987
Boys Club of Shreveport-Bossier, 1982-1985
- CES 3 -
140
Goodwill Industries of Horthwest Louisiana, 1983-1987
Salvation Army Advisory Board, 1983-1986
Northwest Louisiana Sickle Cell Anemia Foundation, 1985-1987
Northwest Louisiana Family Crisis Center, 1986-1987
KDAQ Public Radio Station Community Advisory Board, 1986-1987
Shreveport Opera, 1986-1988
Shreveport-Bossier Metropolitan YMCA, 1985-1989
American Red Cross, 1987-1989
Northwest Louisiana Biomedical Research Foundation
(Charter Officer), 1985-1988
Shreveport Chamber of Commerce, 1985-1988
MEMBERSHIPS IN CIVIC AND COMMUNITY ORGANIZATIONS
Shreveport Chamber of Commerce-Leadership Council, (Chairman,
1985-1986)
National Association for the Advancement of Colored People,
1988-Present
Louisiana State Dniversity-Shreveport Chancellor's Advisory
Board, 1983-1989, (Chairman, 1988-1989)
Ark-La-Tex Ambassadors Club, 1990-Present
Shreveport Chamber of Commerce, Military Affairs Council,
1992-Present
Omega Psi Phi Fraternity, Inc., Rho Omega Chapter, (Basileus,
1983-1985)
Omega Psi Phi Fraternity, Inc., Rho Omega Chapter, Achievement
Week Committee (Chairman, 1992-1994)
Dillard University, Friends of Louisiana Association of
Independent Colleges and Universities, New Orleans,
Louisiana, (Representative, 1988-1989)
Dillard University Alumni Association, New Orleans, Louisiana
(Parliamentarian, 1992)
Loyola University School of Law Visiting Committee,
New Orleans, Louisiana, 1988-1989
YMCA Black Achievers Program Steering Committee, 1990
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141
BOARD MEMBERSHIPS
National Member at Large, Boy Scouts of America, National
Council, 1986-Present
Norwela Council Boy Scouts of America, (Treasurer, 1987-1988,
Vice President for Membership 1990-1993, Council President
1993-Present)
National Member, Urban Field Services Committee, Boy Scouts of
America, Dallas, Texas, 1992-Present
Lighthouse Educational Enrichment Program, 1987-Present
Advisory Board, Links Inc., Project LEAD High Expectations,
1992-Present
Volunteers of America of Northwest Louisiana, 1991-Present
Dovmtown Shreveport Development Corporation, 1990-Present
Grambling State University, Dr. Martin Luther King, Jr.
Criminal Justice Center, Grambling, Louisiana, 1992-Present
Trustee, Centenary College of Louisiana, Shreveport, Louisiana,
1992-Present
Court Admission . List all courts in which you have been
admitted to practice, with dates of admission and lapses if any
such memberships lapsed. Please explain the reason for any
lapse of membership. Give the same information for
administration bodies which require special admission to
practice.
The Supreme Court of the State of Louisiana
October 2, 1974
The United States Court of Military Appeals
December 13, 1974
The United States District Court for the Western District of
Louisiana
January 3, 1978
The United States Fifth Circuit Court of Appeals
February 2, 1979
The United States Supreme Court
June 30, 1980
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142
12. Published Writings : List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
None.
13. Health : What is the present state of your health? List
the date of your last physical examination.
Good. September 30, 1993.
14. Judicial Office : State (chronologically) any judicial
offices you have held, whether such position was elected
or appointed, and a description of the jurisdiction of
each such court.
Elected District Judge, First Judicial District
Court, Division D, State of Louisiana, April 22,
1985-February 15, 1991. The district court
encompasses Caddo Parish (county) and is a general
jurisdiction court for all civil and criminal cases
except municipal traffic offenses and juvenile cases.
Elected Judge, Second Circuit Court of Appeal, State
of Louisiana, February 15, 1991-Present. The Second
Circuit is one of five intermediate appellate courts
in Louisiana and consists of nine judges. Pursuant to
the Louisiana Constitution, a court of appeal has
appellate jurisdiction of (1) all civil matters,
including direct review of administrative agency
determinations of workers* compensation matters, (2)
all matters appealed from family and juvenile courts,
and (3) all criminal cases triaJ le by a jury except in
capital cases where a penalty of death has actually
been imposed. It has supervisory jurisdiction over
cases which arise within its circuit.
15. Citations : If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant
criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state
constitutional issues, together with the citation to
appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please
provide copies of the opinions.
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143
(1) citations for the ten most significant opinions you
have written:
Ten Most Significant Opinions
1. McCrary v. Park South Properties. Inc. . trial court
opinion attached; affirmed on appeal, 560 So. 2d 38 (La.
App. 2d Cir, 1990), writ denied, 563 So. 2d 1156 (La. 1990).
2. State V. Lobato . 588 So. 2d 1378 (La. App. 2d Cir. 1991),
affirmed, 603 So. 2d 739 (La. 1992).
3. Aldredoe v. Whitney . 591 So. 2d 1201 (La. App. 2d Cir.
1991).
4. Howard v. Howard . 580 So. 2d 696 (La. App. 2d Cir. 1991).
5. Coffin V. The Board of Supervisors of Louisiana State
University Agricultural & Mechanical College . 620 So. 2d
1354 (La. App. 2d Cir. 1993).
6. State V. Gay . 616 So. 2d 1290 (La. App. 2d Cir. 1993).
7. Atkins v. Atkins . 623 So. 2d 239 (La. App. 2d Cir. 1993).
8. In Ret JWR & RKR . 607 So. 2d 634 (La. App. 2d Cir. 1992),
writ denied, 607 So. 2d 571 (La. 1992).
9- First Downtown Development Corp. v. Cimochowski . 613 So. 2d
671 (La. App. 2d Cir. 1993), writ denied, 615 So. 2d 340
(La. 1993).
10. Soderouist v. Kramer . 595 So. 2d 825 (La. App. 2d Cir.
1992).
(2) a short summary of and citations for all appellate
opinions where your decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings:
1.
Massev V. G.B. Coolev Hospital For Retarded Citizens . 593
So. 2d 460 (La. App. 2d Cir. 1992), set aside/remanded 616
So. 2d 1242 (La. 1993). Plaintiff petitioned for damages
against his employer alleging that he was wrongfully
terminated and that the employer made defamatory
statements about him during the grievance procedure after
termination. Defendants filed an exception of no cause of
action. The trial court maintained the exception as to
allegations of wrongful termination of employment and
CES 7
144
intentional infliction of emotional distress, but
overruled the exception and found a cause of action for
defamation. The court of appeal affirmed. The Louisiana
Supreme Court set aside the judgments of the lower courts
and remanded the case to the trial court to reconsider the
exception in light of its recent detailed analysis of
whether a court may render a judgment which partially
maintains an exception of no cause of action when the
judgment adjudicates less than all of the claims asserted
against the excepting party.
White V. West Carroll Hospital . 598 So. 2d 1134, (La.
App. 2d Cir. 1992), vacated 613 So. 2d 150 (La. 1992).
Presented with whether the court of appeal may consider a
prior suit which was not introduced into evidence at a
prescription hearing, the appellate court found that the
prior suit was not part of the appellate record and
refused to supplement the record on appeal or to grant
plaintiffs' request to remand the case to the trial court
to supplement the record. The Louisiana Supreme Court
found that the court of appeal was correct in refusing to
supplement the record on appeal, but found it appropriate
to remand the case to the trial court to include evidence
of the prior suit and to reexamine the issue of
prescription in light of the prior suit. Accordingly, the
Louisiana Supreme Court vacated and set aside the judgment
of the court of appeal which affirmed the trial court's
grant of the exception of prescription, and remanded the
case to the trial court for further proceedings.
Taylor v. Giddens . 607 So. 2d 878 (La. App. 2d Cir.
1992), affirmed in part, reversed in part, and remanded,
618 So. 2d 834 (La. 1993). The court of appeal determined
that the language of LSA-R.S. 9:5628, Louisiana's medical
malpractice prescription statute, is unambiguous and
provides no exception for wrongful death and/or survival
actions which arise from medical malpractice. The
Louisiana Supreme Court determined that a wrongful death
action is separate and distinct from a malpractice action
and, thus, is not governed by LSA-R.S. 9:5628. However,
the survival action is controlled by the prescriptive
periods set forth in LSA-R.S. 9:5628. Therefore, the
judgment which sustained the peremptory exceptions of
prescription was affirmed as to the survival action and
reversed as to the wrongful death accion, and the case was
remanded for further proceedings.
CES 8 -
145
4.
State V. Atkins . 607 So. 2d 875 (La. App. 2d Cir.
1992), remanded, 613 So. 2d 164 (La. 1993), on remand 621
So. 2d 656 (La. App. 2d Cir. 1993). The district attorney
obtained bond forfeiture judgments against a bondsman and
seized funds from the bondsman's savings account. The
bondsman petitioned to nullify the bond forfeiture
judgments, asserting that the state failed to give him
proper notices of appearance dates and of the forfeiture
judgments. The trial court found that all notices were
properly sent, and the court of appeal affirmed. The
Louisiana Supreme Court criticized the court of appeal's
reference in dicta to a statute which became effective
after the bond forfeitures occurred, and remanded the case
to the appellate court for reconsideration. On remand,
the court of appeal again affirmed the trial court
judgment.
5.
State V. Otis . 586 So. 2d 595, (La. App. 2d Cir. 1991),
writ granted in part and remanded, 589 So. 2d 487 (La.
1991), on remand, 592 So. 2d 1 (La. App. 2d Cir. 1991).
Defendant appealed his convictions for one count of
manslaughter and two counts of atteirpted manslaughter. He
also appealed his sentences, as an habitual offender, to
25 years hard labor on the manslaughter conviction and 12
1/2 years hard labor on each of the attempted manslaughter
convictions, all of which were to run concurrently. The
court of appeal affirmed defendant's convictions and
sentences. The Louisiana Supreme Court granted writs, in
part, and remanded the case for the
appellate court to reconsider defendant's claim of
ezcessiveness of sentence because defendant was sentenced
as a multiple offender on all three counts, despite the
fact that his convictions were entered on the same day and
involved offenses committed in a single criminal act or
episode. On remand, the court of cppeal determined that
the three convictions must be considered as one
conviction, for the purposes of enhancement under the
habitual offender bill, because they arose from a single
criminal episode. Accordingly, the sentences were vacated
and the case remanded to the trial court for resentencing
on all three convictions, with adjudication and sentencing
as a habitual offender on only one of the convictions.
(3) citations for significant opinions on federal or state
constitutional issues, together with the citation to
appellate court rulings on such opinions.
Hot applicable.
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146
16. Public Office ; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
None.
17. Legal Career ;
a. Describe chronologically your la/ practice and experience
after graduation from law school including:
1. whether you served as clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
Ho.
2. whether you practiced alone, and if so, the addresses
and dates;
No.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of your
connection with each;
October 1974-Octob2r 1977
1 served as a Captain in the U.S. Army Judge Advocate
General's Corps immediately after my admission to the
Louisiana Bar. My duty assignment was as a Trial
Defense Attorney and Legal Assistance Officer, Office
of the Staff Judge Advocate, Headquarters, Fort Sam
Houston, Texas.
October 1977-January 1978
Upon discharge from the U.S. Army, I returned home to
Shreveport, Louisiana where I worked as an associate
attorney in the two-person law firm of Piper and
Brown, Attorneys at Law.
January 1978-April 1979
I served as a staff attorney in the Shreveport,
Louisiana office of Louisiana Attorney General William
J. Guste, Jr.
CES 10 -
147
April 1979-Noveniber 1983
U.S. Attorney J. Ransdell Keene hired me as an
Assistant U.S. Attorney for the Western District of
Louisiana initially to work in the civil section. I
remained an Assistant United States Attorney when
Joseph S. Cage, Jr. succeeded Mr. Keene as United
States Attorney for the Western District of Louisiana.
November 1983-April 1985
Upon leaving the U.S. Attorney's Office, I went into
private practice in a two-person law firm named
Stewart and Dixon, A Professional Law Corporation
located in Shreveport, Louisiana. I simultaneously
held a part-time position as an Assistant City
Attorney for the City of Shreveport and a Special
Assistant District Attorney.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
October 1974-October 1977
I was part of a nine-person military law office.
As Trial Defense Attorney, I achieved success on
behalf of my soldier clients in several
courts-martial proceedings. In numerous other
cases, quick and thorough pretrial preparation
enabled me to secure nonjudicial punishments for my
clients in lieu of court-martial. In my capacity
as a Legal Assistance Officer, I organized and
administered the Hospital Legal Assistance Program
at Brooke Army Medical Center, Fort Sam Houston.
As a result of my work as a judge advocate, I
received the Department of the Army, Array
Commendation Medal on October 11, 1977.
October 1977-January 1978
I assisted both Piper and Brown in the preparation
of general civil litigation files. I left the firm
along with several support staff during the law
firm's reduction of overhead costs.
January 1978-April 1979
The Attorney General's Office is located in
Shreveport, Louisiana and was staffed by one
Assistant Attorney General, A. Mills McCawley, a
secretary, and myself. My general duties were to
draft Attorney General opinions, do legal research,
and assist Mr. McCawley in the preparation and
trial of cases within the Shreveport area. I left
the Louisiana Attorney General's Office to accept a
higher paying position.
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148
April 1979-Noveniber 1983
I handled cases under the Federal Tort Claims Act,
as well as other federal statutes and under the
Code of Federal Regulations. In 1980, I moved to
the criminal section and prosecuted cases ranging
from the Migratory Bird Treaty Act to
administrative agency cases for food stamp
violations, social security benefits violations,
etc. Cases I handled from grand jury indictments
to jury trial encompassed vote buying in federal
elections, fraudulent flood claims against the
Federal Emergency Management Agency, embezzlements,
bank robberies, loan sharking, and tax fraud and
criminal civil rights violations. I also
participated in voting rights and school
desegregation cases brought by the Justice
Department.
November 1983-April 1985
My law partner was Edward Dixon. We employed one
secretary and one receptionist. As a small firm,
we handled primarily general civil matters with
little litigation. Both designations enabled me to
prosecute Driving While Intoxicated cases for the
city under state law. Additionally, I prosecuted
misdemeanors and miscellaneous traffic offenses.
Our law firm dissolved and my part-time prosecution
work ended upon my election as a judge on March 30,
1985. I took ray oath of office on April 22, 1985.
Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
See answers to 17b(l) above.
Did you appear in court frequently, occasionally, or
not at all? If the frequency of your appearances in
court varied, describe each such variance, giving dates.
Except during ray private practice years, I appeared in
state and federal courts on i, regular basis.
(See answers to 17b(l) above).
What percentage of these appearances was in:
a. federal courts; 1974-1977; 1979-1983 (100%)
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149
b. state courts of record; 1978; 1984-1985 (99%)
c. other courts.
3. What percentage of your litigation was:
a. civil;
1974-1977 (0%); 1978-1983 (10%); 1984-1985 (1%)
b. criminal.
1974-1977 (100%); 1979-1983 (90%); 1984-1985 (99%)
4. State the number of cases in courts of record you
tried to verdict or judgmen; (rather than settled),
indicating whether you were sole counsel, chief
counsel, or associate counsel.
Military practice - 25 - sole counsel
Private practice - 3 - sole counsel
City and State government - 120 - sole counsel
Federal government practice - 100 - (85%) sole counsel
(15%) associate counsel
5. What percentage of these trials was:
(a) jury; 15%
(b) non-jury. 85%
Litigation ; Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addres-.es, and telephone numbers
of co-counsel and of principal counsel for each of the
other parties.
CES 13 -
150
The ten most significant cases I personally litigated all
occurred during my tenure as an Assistant United States
Attorney for the Western District of Louisiana.
1.
United States v. Robert Dwiaht Hance . No. 83-50024-08, Western
District of Louisiana. Jury trial was held in November 1983
before the Honorable Tom Stagg. Counsel for the Defendant:
Mr. Neil Martin Trichel, 610 Marshall Street, Suite 630,
Shreveport, Louisiana 71101, (318) 424-1441
Summary: Filing of fraudulent tax return .
Representing the United States, I handled Mr. Nance's jury
trial as the last of ten cases in which inmates at Wade
Correctional Center located in Homer, Louisiana, had filed
fraudulent federal income tax returns. The inmates filed
returns claiming they had earned wages during the preceding
year and were entitled to receive refunds from the United
States government. Refunds were, in fact, received by the
inmates via the fraudulent use of social security numbers and
addresses. Nine of the ten defendants pled guilty prior to
trial, but Mr. Nance, the purported ringleader, was tried and
convicted by a jury on the indictment charging him with filing
a fraudulent tax return.
My role included the following: Coordinating the field
investigation with the FBI; preparing and examining witnesses
for the grand jury; preparing the grand jury indictment and
presenting it to the grand jury; responding to pre-trial
motions; handling pre-trial proceedings and hearings; preparing
lay and expert witnesses for trial; conducting the trial from
opening argument, through the return of the jury verdict, to
sentencing.
Significance :
The case was significant because it represented the
curtailment of a substantial scheme of defrauding money from
the government, not only by persons who had not earned any
income but by inmates who were incarcerated on other charges.
These fraudulent returns and the prosecution impacted greatly
on the finances of the United States. Mr. Nance was convicted
and sentenced to a period of hard labor to run consecutively
with the time he was serving in the state penitentiary.
United States v. Wavmon Fortenberry . No. 82-30017, Western
District of Louisiana, Monroe Division. Jury trial was held
during 1982-1983 before the Honora ale Nauman S. Scott, then
Chief Judge of the Western District of Louisiana. Counsel for
the Defendant: Mr. Robert McLeod, 1900 North 18th Street,
Suite 610, Monroe, Louisiana 71207, (318) 325-7000.
Co-Counsel for the United States, Department of Justice
Attorneys Ross Connealy and Criselda Ortiz.
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Summary: Criminal Civil Rights Violation .
I represented the United States as co-counsel in this case
against Mr. Fortenberry, who was Warden of the East Carroll
Parish Prison. The factual basis for the criminal civil rights
violation was that two young black men, inmates at the prison,
were left in a metal box over an extended period of time and,
due to extreme heat and dehydration, died in the metal box.
Both the victims in the case were under 20 years of age. After
a multi-day trial, the jury acquitted the defendant.
As co-counsel, I served as local contact for the
Washington, D.C. Justice Department lead counsel. I examined
the grand jury witnesses and assisted in preparing the grand
jury indictment. During the trial, I prepared and examined Dr.
George W. McCormick, III, a forensic pathologist, who testified
as an expert witness.
Significance ;
The case is significant because of the extreme neglect
which led to deaths of two young men while in the custody of a
state official. The impact of the trial on the community, as
well as the deterrent effect on others responsible for the care
of prisoners, was significant. For my participation in this
trial, I received a letter of commendation from the United
States Department of Justice.
3.
United States v. Melvin Banks a/k/a Niohttrain . No.
82-50031-01, Western District of Louisiana, Shreveport
Division. Jury trial was held during 1982-1983 before the
Honorable Henry A. Politz, now Chief Judge of the Fifth
Circuit, United States Court of Appeals, who was then sitting
as a District Court Judge. Counsel for Defendant: Mr. Richard
Schmidt, appointed counsel, then of the law firm, Lunn, Irion,
Smitherroan, et al. Attorney Schmidt is now a United States
Bankruptcy Judge, 501 Government Plaza Building, 400 Mann
Street, Corpus Cristi, Texas 78401, (501) 888-3482.
Summary: Federal Loan Sharking .
I represented the United States in its prosecution of Mr.
Banks under a federal loan sharking statute for his heinous and
prolonged activities of exacting exorbitant interest rates
under the threat and perpetration of violence upon persons who
had borrowed small amounts of money. The victims were all
members of Ledbetter Heights, a low income neighborhood in the
City of Shreveport. The trial of Mr. Banks occurred after
taking a number of guilty pleas of r.everal persons involved in
the same and similar conduct end, after extensive FBI
surveillance and investigation. The jury convicted Mr. Banks
and he was sentenced to a jail term.
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152
My role included the following: Coordinating surveillance
operations with the FBI; preparing and examining witnesses for
the grand jury; preparing the grand jury indictment and
presenting it to the grand jury; responding to pre-trial
motions; handling pre-trial proceedings and hearings; preparing
lay and expert witnesses for trial; conducting the trial from
opening argument, through the return of the jury verdict, to
sentencing.
Significance :
The incarceration of Mr. Banks removed a substantial threat
to the community, particularly in the lives of the elderly and
poor people who he intimidated.
United States v. E.B. Malmav , No. 80-50031, Western District of
Louisiana, United States v. Malmav . (on appeal) 671 F.2d 869
(5th Cir. 1982).
and
5.
United States v. Alfice Brumlev . No. 80-50029, Western District
of Louisiana. Litigated during 1980-1981 before the Honorable
Tom Stagg. Counsel for both Defendants: Mr. John R. Nartzell,
338 Lafayette Street, New Orleans, Louisiana 70130, (504)
581-9065. Co-Counsel for the United States: Mr. A. M. Stroud,
then First Assistant United States Attorney, who is now with
the law firm Blanchard, Walker, O'Quin & Roberts, Post Office
Drawer 1126, Shreveport, Louisiana 71163, (318) 221-6858.
Summary: Payment of voters in an election .
Mr. Malmay was an elected school board member, and Mr.
Brumley was an incumbent sheriff, in Sabine Parish of
Louisiana. Each was indicted for paying voters in an election
in which federal candidates were on the ballot. In connection
with the public integrity section o:'! the Justice Department, I
participated as co-counsel in the prosecutions of Mr. Malmay
and Mr. Brumley. Mr. Brumley plead guilty to a misdemeanor and
is still the sheriff for Sabine Parish. Due to pretrial
publicity in the Sabine Parish area, Mr. Malmay's trial was
held in Shreveport. Mr. Malmay was convicted by a jury but,
due to his age and station in the community, he was not given a
jail term.
My participation as co-counsel included extensive
coordination of pre-indictment investigation with the FBI and
review of FBI 302 reports. I accompanied FBI agents during
witness interrogation. I examined grand jury witnesses and
assisted lead counsel, Mr. Stroud, in all other pre-trial
proceedings. I examined witnesses aid did the closing argument
during the trial of Mr. Malmay.
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153
Significance ;
These convictions were the culmination of an extensive
investigation by the FBI which had resulted in a number of
guilty pleas of lower level haulers and payers. The conviction
of Mr. Malmay served as a great deterrent to vote buying and
other voter irregularities in the Sabine Parish area and other
parts of the state. The conviction of a higher-up official
served to bestow a confidence in the electoral system in the
area impacted.
6.
United States v. Charles Bentlev . Nos. 83-30008 and 85-50040,
Western District of Louisiana, Alexandria Division. Litigated
before the Honorable Nauman S. Scott, then Chief Judge of the
Western District of Louisiana. Counsel for the Defendant: Mr.
Ralph Capitelli, 600 Julia Street, New Orleans, Louisiana
70130, (504) 582-2425.
Summary: Embezzlement .
Representing the United States, I handled Mr. Bentley's
prosecution and guilty plea after an extensive grand jury
investigation which showed that he had embezzled more than $6
million from the Bastrop Federal Savings and Loan Association
where he was an officer and employee. Mr. Bentley had an
excessive gambling habit which was the cause of his extensive
thefts from the Savings and Loan Association. Because he was a
relative of one of the senior employees, he was able to conceal
this embezzlement for an extended period of time. Mr. Bentley
pled guilty.
My role included coordinating the field investigation with
the FBI and examining numerous financial records and gambling
paraphernalia. I presented evidence to the grand jury which
culminated in Mr. Bentley's indictment. I represented the
government in plea negotiations which resulted in Mr. Bentley's
guilty plea to five counts of embezzlement, each count in the
amount of approximately $1 million.
Significance ;
One of the larger embezzlement cases prosecuted in
Louisiana at that time, this $6 million embezzlement served to
cause the ultimate demise of the Bastrop Federal Savings and
Loan Association.
United States v. Hugh Lemoine . No. 81-50011, Western District
of Louisiana, Shreveport Division. Jury trial was held during
1981-1982 before the Honorable Tom Stagg. Counsel for
Defendant: Mr. H. F. Sockrider, Jr., 327 Crockett Street,
Shreveport, Louisiana 71101, (318) Z21-5503.
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154
Summary: Receipt and sale of stolen merchandise .
Mr. Lemoine was a Shreveport policeman who was charged by
indictment with knowingly receiving and reselling major
appliances which he knew, or should have knotm, had been
highjacked from an eighteen-wheeler truck during the interstate
transport of the merchandise. After multiple days of trial,
the jury acquitted Mr. Lemoine.
My role included the following: Coordinating the field
investigation with the FBI; preparing and examining witnesses
for the grand jury; preparing the grand jury indictment and
presenting it to the grand jury; responding to pre-trial
motions; handling pre-trial proceedings and hearings; preparing
lay and expert witnesses for trial; conducting the trial from
opening argument, through the return of the jury verdict.
Significance :
Notwithstanding the acquittal, the case culminated an
extensive investigation involving receipt and sale of stolen
merchandise that had been located in interstate commerce. The
guilty pleas which preceded the Lemoine trial, as well as the
trial itself, served to deter other highjacking and receipt and
purchase of stolen items from Shreveport area truck stops and
other locations.
8.
United States v. Warren J. Lacomb . Ho. 83-10011-01, Western
District of Louisiana. Jury trial was held during 1983-1984
before the Honorable Rauman S. Scott. Counsel for the
Defendant: Mr. Michael Johnson, now a judge on the 12th
Judicial District Court, Avoyelles Parish Courthouse,
Marksville, Louisiana 71351, (318) 253-9418
and
9.
United States v. Mitchell Laprairie . Ho. 82-10024-01, Western
District of Louisiana. Counsel for Defendant: J. Michael
Small, One Center Court, Suite 201, Alexandria, Louisiana
71309, (318) 487-8963.
Summary: Fraudulent flood claims .
Lacomb and Laprairie were companion cases to Verna
Disselle . No. 83-10012-01, Louis Foster . Ho. 84-10016-01, and
Thomas Simpson . I represented the United States in these cases
in which, after an extensive grand jury investigation, each
defendant was indicted for filing fraudulent flood claims with
the Federal Emergency Management Agency. A scheme was
protracted with Thomas Simpson, the agent for General
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155
Adjustment Bureau which handled £lood claims as a lower level
adjuster for FEMA. Lacomb was the owner of several properties
regarding which he submitted claims. Lacomb also consorted
with other defendants to file claims on his behalf in an effort
to recover money from the United States Government on
properties which either (1) were not owned by him, or (2) were
owned by him but which had not been affected by any flood.
In developing and prosecuting these cases, I accompanied
the lead FBI investigator to view the situs of many of the
fraudulent claims. I presented to the grand jury the evidence
which had been developed by the FBI, prepared indictments, and
negotiated plea agreements. I coordinated with the FBI a
method by which guilty pleas were obtained from lower-level
participants in exchange for information and testimony about
higher-level participants. The procedure used extended the
investigation but resulted in the indictment of Lacomb, who had
submitted a large number of fraudulent claims.
Significance :
The impact of these cases is that, cumulatively, they
involved a loss to the United States Government of over
$169,000.
10.
Beryl N. Jpngg v. Caddo Parish School Board . Civil No.
11055-S. Western District of Louisiana. Litigated in 1981
before United States District Judge Tom Stagg in the Shreveport
Division. Counsel for Caddo Parish School Board: Mr. Fred
Sutherland, 400 Travis Street, 1103 Beck Building, Shreveport,
Louisiana 71101, (318) 226-9001. Co-Counsel for Jones: then
United States Attorney J. Ransdell Keene, whose current address
is Post Office Box 3097 1040 Kings Highway, Shreveport,
Louisiana 71133-3097 (318) 221-5770; then First Assistant
United States Attorney Frances O. An.en, who now resides at 754
Dudley Drive, Shreveport, Louisiana 71104, (318) 868-9953; and
Justice Department Attorneys Nathaniel Douglas and Brian
Hefernan.
Summar y: Desegregation .
Jones is the primary school desegregation case in Caddo
Parish. When first filed in the 1960 's, it challenged the
separate but unequal school system in the parish. Vestiges of
the case remained in 1981 when the Caddo Parish School System
sought unitary status. As an Assistant United States Attorney,
I worked with the above referenced co-counsel in fashioning a
Consent Decree.
My participation in this case included numerous discussions
with government expert witnesses, school board members, and
others, as well as negotiations wi-rh counsel for the school
board. I collaborated with co-counr,el and opposing counsel to
assess the impact, upon various segments of the community, of
both the proposed and final language of the Consent Decree
- CES 19 -
156
The negotiations are described as follows in Jones v . Caddo
Parish School Board . 735 F.2d 923, 931 (5th Cir. 1984):
[T]he United States and the Board entered into
widely publicized settlement negotiations lasting
nearly a year, which led up to the execution of the
Consent Decree in Nay 1981. Numerous public meetings
(twenty-eight are listed in the papers filed by the
Board below) were held throughout the community,
principally in February, March and April 1981, to
inform the citizens about various desegregation
approaches and to obtain community input.
Representatives of the Justice Department met with
black civic leaders, and also received input form
black citizen and parent groups.
Significance :
The Consent Decree is signed by me as one of the
attorneys and still governs the Caddo Parish School system
today.
19. Legal Activities ; Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
In addition to the cases previously described in
Number 18 above in which I was involved in the litigation,
cases which I presided over as a trial judge stand out in
my career. The range of judicial decisions I have made
include issues of child custody, paternity, probate and
successions, trusts, personal injury, worker's
compensation, personal and commercial property interests,
business organization disputes, misdemeanors to murders,
rapes, robberies, and drug offense. The close contact I
have had with litigants, lawyers, jurors and fellow judges
has made ray respect for the value of the rule of law
greater than ever. Having served as a trial judge, I feel
well equipped to handle appellate review on a high volume
basis.
- CES 20
157
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future benefits
which you expect to derive from previous business
relationships, professional services, firm memberships,
former employers, clients, or customers. Please describe
the arrangements you have made to be compensated in the
future for any financial or business interest.
None.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conf licts-of-interest
during your initial service in the position to which you
have been nominated.
I am unaware of any conflicts of interest that might
occur based on any past or present financial arrangements
I have. I also do not know of any types of litigation
which might cause me to have a conflict of interest.
Nonetheless, I have read the Code of Conduct for United
States Judges and fully intend to follow it whenever I
should encounter a potential or actual conflict of
interest. I would recuse myself from considering any case
in which a conflict of interest exists. '
Do you have any plans, commitments, or agreements to
pursue outside employment, with or without compensation,
during your service with the court? If so, explain.
Ho.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the
current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents,
honoraria, and other items exceeding $500 or more (If you
prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978,
may be substituted here.)
See Attached Form AO-IO Financial Disclosure Report.
- CES 21 -
158
FINANCIAL DISCLOSURE REPORT
toport Raqolfvd by tbm ItUea
R«fO£V jure of 1989. Pub. L. Ho.
101-194. Novaabu 10. 1989
(S U.S.C.il. Jlpp. 6, SSlOl-112)
1. PvrsoD Raportlog (L4at oana. first, alddlc InttlaT )
Stewart, Carl E.
2. Court or OrganlzAtloo
U.S. Court of Appeals
Fifth Circuit
1. D«ta of Rftport
January 20 ,
99
4. Tltla (imicla XIX judges indlCAt* sctlva or
■•nlor Bt«tua; Kaglstrat* judgaa Indicata
full- or pATX-tloa)
Circuit Judge (full-time)
i. Raport Xypa (chack approprlata cypa)
,, Hoalnatlon, Data
X Initial
Annual
Final
6. Xaportlag Parlod
January 1, 1993 to
December 31, 199:
7. Chmmbmrm or otflc* Aoarmmm
U.S. Courthouse
600 Camp Street
New Orleans, Louisiana 70130
8. oa tbo baala oC tbo laforvatloo conralnod la tbla Msport. It
la. lA By opinion, in coapllanca wltb appllcabla l«w« and
cafolntiona
llaviawlag Offlc«r aignator*
IMPORTANT NOTES: The inimictions accompanying this form must be followed. Complete all parts,
cfaeddng the NONE box for each section where you have no reportable information. Sign on last poge.
1. POSITIONS. (Reporting individual only, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
D
NONE (Ho raporcnbla positional
Director
Trustee
Volunteers of America of Northwest Louisiana
Norwela Council , Boy Scouts of America
Centenary College, Shreveport, Louisiana
II. AGREEMENTS. (Reporting individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
NONE (Ho Tsportabls agn
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (Mo r«portabla noo-lnvnTMiit In
T.niii<;iana fSrafP TuHi ri ary CTiidi ri a1 Salary')
(S )Caddo Parish School Board (Salary)
r<;^c;rhiimpprr Mpdiral Cpnl-pr CSalaryl
GROSS INCOME
(yours, act spouse's)
S «q nnn
$
$
$
s
159
FINANCIAL DISCLOSURE REPORT (cont'd)
Has* at PersoQ Reporting
Carl E. Stewart
DaXm of Raport
January 20 . L9
"■ "^^a^i'",?^"^"'^^ ^"^ °'"'S - iraispottation, lodging, food, entertainment
SOURCE DESCRIPTION
I I NONE (Ho ■neh MpoTMBlo roJjnbiir««iD«it. or glfti)
E^iEtlE^: KXFMPT
V. OTHER GIFTS. (Indudes those to spouse and dependent children; use the i>arenthetlcals V<n' .nd -mrr f„
rndtat^other g^s received by spouse and STpenden. cS^i^^^^^^!^'^J% Tlns^So^
n
r InslmctloQa.)
SOURCE DESCRIPTION V/iLVE
NONE (No ■ucJl raportAblo gl£t«)
1
EXEMPT EXEMPT
s.
s.
s
^'- ^'^g'liili^,. ^"^f.%^^L'^Tsrtr''J^^^^'-„^^^^^^
£s» ^^-^ «C;^Slf S35SiE
or reporting
Instructions.)
"^™"^°'* DESCRIPTION VALUE CODE*
A I NONE (Do zapoRabl* llaDlllUu)
s
"^°»"= r.|Ho?2S.°L^n;o,oco y.llliZ.'Vll'.lllo.o J : S^;°?i^%l?SSo?SSo « -'-.""«. -.00.
160
FINANCIAL DISCLOSURE REPORT (cont'd)
HonM of Par«on Raporrlng
Carl E. Stewart
Data oC Repozt
January 20, 1 19^
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children; see pp. 18-27 of Instructions.)
Daaorlptioa oC Aaa«t«
(locludLsg xnmt uammXMi
Zndlo«t«, wbarw appllcahla, ownar of
tba #»aat by uaijig cEa parancbatJ.cal
durlna
c.
9roas valaa
at and of
raportlng
period
D.
Tranaaotlona during repoRlsg p«rlod
inn indlviaual and spcrasa, "(S) for
MDsrata ownarstiXp by spouaa. *<DC}"
Cor pwnarmAXp by gapawlant ealld.
?1mo» "<Z)* atzmr aaeh mmmmt.
mxmmpz cxoB prior dlacioaura.
(1)
(2)
^:
raac or
Inc.r
(1)
(2)
Valua
MatJtod«
coda'
^
It not axaapt. Croa dlscloaura |
bvy^aaU.,
nargar,
radasp-
tlon)
Hontfa'
Day
(3)
Valua,
Coda'
(«)
Gain,
coda'
C»-a)
IdaoUiy o£
bnyar/aallar
(It prlvata
traasaouon)
NONE (Ro rapoTUbla
y Inrn— , aasaca, or
A tranaactlona )
1
2
3
<
5
6
■)
•
9
10
11
12
13
14
15
1(
17
la
19
20
I iBooiM/Caln Codaai »-«l,000 or lasa B-Jl,00l to S2,500 C-S2,501 to 5,000 0-S5,001 to $15,000
fsaa col. Bl I D») E-S15,001 to SSO.OOO F-J50,001 to SIOO.OOO C-S100,0Ol to SI, 000, 000 B-Mora tn.o $1,000,000
(Saa Col CI t D31 R-$250,D01 to $500,000 O-S500,00J to 51,000,000 P-Mora than SI. 000, 000
1 Valoa Hatnod Codaat Q-Appraiaal R-Coat (real astato only) S-Ataaaaaant T-Caab/Harkat
(Saa col. C2) U-BooK Valua V-otBar w-Batljutad
161
FINANCIAL DISCLOSURE REPORT (conl'd)
NuM Of Parson R«porxlog
Carl E. Stewart
Data of Rapozt
January 20 , ! 99
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pait of Report.)
IX. CERTIFICATION.
Id compliance with the provisions of 28 U.S.C § 4SS and of Advisoiy Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiiy, I did not perform any adjudicatoiy
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my Imowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
1 funher certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.CA. app. 7, § SOI et seq., S U.S.C S 7353 and Judicial Conference
regulations.
Signature
Dale.Tamiarv 20. 1994
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FTLE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 1(M, AND 18 U.S.C § lOOL)
FILING INSTRUCTIONS:
Mafl
signed
original
and 3 additional
copies to:
Judicial Ethics Committee
Administrative Office of the
United Slates Courts
Washington, DC 20544
162
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for).
See Attached.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
None other than my own election campaign for Louisiana
State District Judge on March 30, 1985 in Shreveport,
Louisiana.
- CES 22
163
NET WORTH
February 23. 1994
Judge Carl E. Stewart
Provide t complete, current nnancial net wonh jutement which itcmiMJ In detiil
til aisf ti (Including bink iccounti. real esuie, jecuriticj, trusts, investments, and other financiil
holdmgs) all liabilities (bdudbig debts, mortgages, loans, and other financial obligations) of
youn^Ii". your spouse, and other Immediate member? of your householi
ASSETS
UABn-rnES
Cub on kuid uii in btnki
'5,200.
00
Sole* peyible to b«nl3-«»ai'e<l
1
U.S. Covuniscnt Mcurida-tdd
tchedul*
Nolu ptytbli <0 btnb-uniccu.n^
Lirttd >ccuntiu-*dd schrduli
NoUi ptytbU 10 relilivei
UnlJilsd Kcwit!ci"wU ichxljl*
Nolei ptyibk Id olbert
Account! ind noui rtotlviblc
AecounU tod billt dua
Dm« frDin rclilires uid friuidi
Unpaid Income tix
Put from otheri
Other onpeid in ind inttrtd
1
Doubtful
Rfil tiuu na(t{ite( ptytblc-idd
•che^Iult
145
000.
Ot
ReU e4Ulc awned.-tdd schedule
165,00
).0(
Chuiel owiimet and other lieni piy.
abU
2
766.
Ot
Xul ciLile morHiiej rectivtble
Oiher debu-ileiniu.'
Autot »«d other penoo*: property
55,00
).0(
installment accounts/
32
.0 0^
0(
Cuh V4]ue-U|( insu.'uic«
6,08
L.0(
credit cards
Ovher uitu-iuraiie:
1
Toro Hills time share
7.50
0.0
1
/
1
JoAnn Stewart - IRA
10,000
.00
1
Certificate of Deposit
5 ,000
.00
Total liabOitiM
179,
^66. DO
La. State Emo'ee Retiremt.
7 1 ,'iy7
.00
NetWoitt
145, [512. [)0
ToUl Aiuls $ -
25,27?
.00
Total liabnUu and rtel erarlh
325,
278. bo
CO.NILVGEM llABiLllliLa
CENXRAL INFORMATION
As eodorter, eomaier or |utrulor
Art any aueu ple<i(c4? (Add ichai.
vie.)
NO
On leuei oi oontjicti
Are you defcadant ir. ar,y (uiu or le(al
tciioniT
NO
Legd Otlnu
Have you er»er takao bankrwpte) J
NO
Pioviuon for FcdertJ Incomt Tax
Other ipefUJ debt
164
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls
for "every lawyer, regardless of professional prominence
or professional workload, to find some time to participate
in serving the disadvantage." Describe what you have done
to fulfill these responsibilities, listing specific
instances and the amount of time devcted to each.
Since 1985, I have served on panels for the Hugh
O'Brien Youth Leadership Program, Mock Trial judge.
People's Law School participant, and Shreveport Bar
Association Pro Bono Project speaker. As a trial judge, I
regularly invited school kids to visit my courtroom in
order to give them a real impression of the impact of the
law in our society. During breaks, I have introduced
court staff to kids and answered questions for them. As
an appellate judge, I have hosted at risk black kids from
an after school program to my chambers and the courtroom.
In addition to my youth services oriented board
memberships, I make 10-15 school appearances per year for
speeches, panels, etc. I devote an average of two hours
per work day to youth and disadvantaged youth programs and
activities.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to any organization which discriminates--through either
formal membership requirements or the practical
implementation of membership policies? If so, list, with
dates of membership. What you have done to try to change
these policies?
None.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal
courts? NO. If so, did it recommend your nomination?
Please describe your experience ir the entire judicial
selection process, from beginning zo end (including the
circumstances which led to your nomination and interviews
in which you participated) .
I was recommended for nomination to the federal court
by Louisiana's two U.S. Senators J. Bennett Johnston
and John Breaux. Thereafter, I was called by White
House Counsel Bernard Nussbaum about their
recommendation and I affirmatively acknowledged my
- CES 23 -
165
desire to serve on the federal bench. I submitted
answers to a set of questionnaires provided by the
White House Counsel's Office and was later interviewed
in Shreveport by the FBI and a representative of the
American Bar Association Standing Committee on the
Federal Judiciary. I was interviewed in Washington,
D.C. by the White House Counsel and members of his
staff. On January 27, 1994, the White House Counsel
notified me by telephone that President Clinton had
nominated me to serve as a judge on the U.S. Fifth
Circuit Court of Appeals.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case,
legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of
government.
Some of the characteristics of this "judicial activism"
have been said to include"
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals,
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
- CES 24 -
166
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities.
I believe in and respect the equality of the three
branches of government created by the U.S.
Constitution. As a separate branch of government, the
federal judiciary's powers should be exercised
sparingly and in a manner which resolves the
litigation along the narrowest basis possible. Where
issues before a court can more appropriately be
resolved pursuant to the powers of the legislative or
executive branches, the court should defer to the
other branches.
I believe that the doctrine of judicial precedent
plays a valuable role in maintaining stability in the
law. I am familiar with the use of judicial precedent
as part of the judicial decision making process. I
have found it to play an important part in helping a
court render sound legal rulings on the issues
presented by the litigants.
CES 25 -
167
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
James Gray Carr
2. Address: List current place of residence and office
address (es) .
Residence: 4525 Wedgewood Court
Toledo, Ohio 43615
Office: 318 United States Courthouse
1716 Spielbusch Avenue
Toledo, Ohio 43624
3. a. Date and place of birth
November 14, 1940 Boston, Massachusetts
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and business
address (es) .
Eileen M. Carr (Glynn)
Associate Professor
College of Education
University of Toledo
2801 West Bancroft Street
Toledo, Ohio 43606
5. Education ; List each college and law school you have attended,
including dates of attendance, degrees received, and dates
degrees were granted.
Kenyon College 1958-62 A.B. 1962
Univ. of Freiburg 1962-63 no degree
Harvard Law School 1963-66 LL.B. 1966
6. Employment Record : List (by year) all business or professional
corporations, companies, firms, or other enterprises,
partnerships, institutions and organizations, nonprofit and
otherwise, including firms, with which you were connected as
an officer, director, partner, proprietor, or employee since
graduation from college.
168
Gardner, Carton, Douglas,
Chilgren & Waud
[now: Gardner, Carton & Douglas]
321 N. Clark St.
Chicago, Illinois 60610
Gardner, Carton, Douglas,
Chilgren & Waud
[Gardner, Carton & Douglas]
321 N. Clark St.
Chicago, Illinois 60610
Cook County Legal Assistance Fndtn 1968-70
1146 Westgate St. Staff Attorney
Oak Park, Illinois 60301
Summer, 1965
Summer Associate
1966-68
Associate
Chicago-Kent IIT College of Law
3300 South Federal St.
Chicago, Illinois 60609
Loyola University College of Law
820 North Michigan Ave.
Chicago, Illinois 60611
Fall, 1969
Adjunct Professor
Spring, 1970
Adjunct Professor
College of Law
University of Toledo
2801 W. Bancroft St.
Toledo, Ohio 43606
1970-79
Professor
Lucas County Prosecutor
Lucas County Courthouse
Toledo, Ohio 43624
Child Abuse Prevention Center
[now: Family & Child Abuse
Prevention Center]
One Stranahan Square
Toledo, Ohio 43606
1972-73
Part-time Asst . Prosecutor
1974-79
Board Member
United States Courts
318 U.S. Courthouse
1716 Spielbusch Ave.
Toledo, Ohio 43624
1979 to date
United States Magistrate
Pretrial Services Resource Center
1325 G Street, N.W.
Washington D.C. 20005
1991 to date
Board Member
169
Military Service ; Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial nxunber and type of discharge received.
None
Honors and Awards ; List any scholarships, fellowships,
honorary degrees, and honorary society meiaberships that you
believe would be of interest to the Conunittee.
Baker Scholarship Kenyon College
Phi Beta Kappa Kenyon College
German Academic Exchange Fellow- Univ. of Freiburg
ship and Fulbright Travel Grant Freiburg, Germany
1962-63 ■
Fulbright Research Fellowship Law Faculty
University of Bonn
Bonn, Germany
1977-78
Bar Associations ; List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
a. Bar Associations
Chicago Bar Association 1966-70
Chicago Council of Lawyers 1967-70
Ohio State Bar Association mid 1970s
American Bar Association mid 1970s, 1993 to date
Federal Bar Association mid 1970s
Toledo Bar Association 1971 to date
b. Judicial-Related Committees
Committee on Rules of Criminal Procedure and Evidence
American Bar Association 1994
Committee on Criminal Law
Judicial Conference of the United States 1986-92
170
U.S. District Court, N.D. Ohio
Differentiated Case Management Oversight Coram. 1991 to date
Administrative Office of the United States Courts
Probation and Pretrial Services Case Management and
Statistics Umbrella Group 1993
Ohio Supreme Court, Civil Rules Subcommittee
on Juvenile Rules (Co-reporter) 1971-72
10. Other Memberships ; List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
a. Lobbying Organizations: none.
b. Other organizations:
Pretrial Services Resource Center 1991 to date
Board Member
Toledo, Lake Erie & Western Railway 1993 to date
& Museum
Maritime Heritage Society 1988 to date
Great Lakes Historical Society 1979 to date
Maumee Valley Historical Society 1983 to date
Toledo Museum of Art 1978 to date
WGTE-TV/FM 1979 to date
History Group 1986 to date
Notre Dame Academy Booster Club 1993 to date
11. Court Admission ; List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for any
lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Illinois Supreme Court November 29, 1966
U.S. District Court
Northern District of Illinois December 16, 1966
171
U.S. District Court
Northern District of Ohio July 13, 1970
Ohio Supreme Court March 6, 1972
United States Supreme Court June 23, 1980
12. Published Writings ; List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
a . Books
Criminal Procedure Handbook Clark Boardman Callahan
(Annual book-length survey of
all reported federal criminal
cases) 1984 - 1993
The Law of Electronic Surveillance Clark Boardman Callahan
(treatise) 1976 (1st ed.)
1985 (2ded., supplemented
semi-annually)
2 Anderson's Ohio Family Law: Juvenile
Law & Procedure Anderson Pub. Co.
(treatise; co-author) 1975 (1st ed.)
1989 (2ded., supplemented
annually)
Juvenile Law and Its Processes Michie Bobbs Merrill
(casebook; co-author) 1980 (1st ed.)
1989 (2d ed. )
Criminal Law Review Clark Boardman Callahan
(annual anthology of law 1979 - 1993
review articles; editor)
b. Reports
Report of the National Commission Gov't Printing Office
for the Review of Federal and 197 6
State Laws Relating to Wiretapping
and Electronic Surveillance
172
American Bar Association Standards Little Brown
for Criminal Justice, Standards 1980
Relating to Electronic Surveillance
c. Articles
1 . Law Reviews
Book Review, Cases and Materials on Law and Poverty
84 Harv. L. Rev. 262 (1970)
Juries for Juveniles; Solving the Dilemma
2 Loyola L. Rev. 1 (1971)
Grading Clinic Students
26 J. Leg. Ed. 223 (1974)
The Impact of the Double Jeopardy Clause on Juvenile
Court Proceedings
6 U. Tol. L. Rev. 1 (1976)
Wiretapping in West Germany
29 Am. J. Comp. Law 607 (1981)
Polizeiliches Abhoren in den Vereinigten Staaten
und in der Bundesrepublik Deutschland: Rechtslage
und Praxis [original and translated versions submitted]
1979 Montasschrift fur Kriminologie 65
Das Abhoren von Rechtsanwalten in der USA [original and
translated versions submitted]
1979 Zeitschrift fur Rechtspolitik 244
Die Kontrolle der Nachrichtendienste in den USA [original and
translated versions submitted]
1979 Zeitschrift fur Rechtspolitik 20
2. Other Law-Related Journals
A Habeas Corpus Primer for State Court
Defense Attorneys
3 Criminal Law Journal of Ohio 189 (1991)
Sentencing Reform and Pretrial Release
5 Federal Sentencing Reporter 220 (1993)
Bailbondsmen and the Federal Courts
57 Federal Probation 9 (1993)
173
3. Newsletters
The following articles appeared in the Search and Seizure Law
Report, published by Clark Boardman:
Use of Oral Testimony to Supplement an Incomplete Affidavit
(April, 1974)
Electronic Beepers (April, 1977)
Suppression of Electronic Surveillance Evidence (Dec, 1977)
Interspousal Wiretapping (Nov., 1978)
Dalia v. U.S. and Smith v. Maryland: Surveillance Outside
Scope of Title III (Aug., 1979)
Payton v. New York: Arrest Warrant Required for Arrest in
Suspect's Home (June, 1980)
Searches for Business Records, Books and Similar Documents
(Feb., 1981)
Michigan v. Summers: Detentions Permitted While Search Warrant
is Executed (Aug., 1981)
An Overview of Recent Developments in Fourth Amendment Law
(March, 1982)
Nighttime Searches (Dec, 1982)
Overview of Recent Developments in Fourth Amendment Law
(March-April, 1984)
Electronic Surveillance by Consent Under State Law
(Nov., 1984)
Overview of Recent Developments in Fourth Amendment Law
(March, 1985)
Overview of Recent Supreme Court Decisions on the Fourth
Amendment (Sept., 1986)
Privacy of Electronic Communications Under Title III
(March-April, 1987)
The Supreme Court's 1987-88 Fourth, Fifth, and Sixth
Amendment Cases (July, 1988)
Warrantless Searches of Inbound Mail From Foreign Countries
(March-April, 1989)
174
An Overview of the Supreme Court's Fourth and Fifth
Amendment Decisions in the 1988-89 Term (Nov., 1989)
d. Speeches
During the past twenty years, I have given numerous speeches,
most of which have been presented to lawyers or judges. Most
of these speeches, talks, or seminars have involved either
civil practice and procedure, criminal law, or criminal
procedure, and many have discussed constitutional or legal
policy issues.
It is usually not my practice to write out my speeches; I
talk, rather, from notes and other materials which I normally
discard afterwards. Thus, except for the first two items, I do
not have copies of any speeches to submit. A brief summary of
the topic and content of the other speeches of which I still
have some record is, however, submitted.
Criminal Defense Attorneys of Michigan: "Unconventional Search
Warrants and Orders," Nov. 6, 1993
Federal Judicial Ctr., Training Seminar for Probation and
Pretrial Services Officers, "Remarks to New Probation and
Pretrial Chiefs Conference," May 4, 1990
Toledo Women's Bar Ass'n, "Amendments to the Federal Rules and
Local Practice," Jan. 19, 1994
This was talk about recent eimendments to the Rules of
Civil Procedure and a description of our District's
Differentiated Case Management Program.
Columbus Bar Ass'n, "Ethical Issues for Litigators," Dec. 16,
1993
I was a member of a continuing legal education (CLE)
panel, along with an Ohio Supreme Court Justice and two
practicing attorneys. A series of scenarios presenting
ethical issues in civil cases was discussed informally.
Toledo Bar Ass'n, "District Court Local Rules," Dec. 14, 1993
This was an overview for a CLE program of our Local Civil
Rules and their implementation.
Toledo Bar Ass'n, "What Every State Court Attorney Must Know
About Federal Habeas Corpus," Oct. 8, 199 3
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under S12.C.2) for a CLE program.
8
175
Ohio State Bar Ass'n, "Trial Practice From the Bench," Oct. 6,
1993
1 was a CLE panelist along with two or three state court
judges; we informally discussed practices and procedures
in our courts .
Toledo Bar Ass'n, Alternative Dispute Resolution, Sept. 22,
1993
This was a CLE discussion, along with some role playing
by me and two attorneys and a commentator, of various
types of alternative dispute resolution techniques.
Toledo Bar Ass'n, "What Every State Court Attorney Must Know
About Federal Habeas Corpus," Feb. 26, 1993
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under S12.C.2] for a CLE program.
Columbus Bar Ass'n, "Handling the SOB Litigator," Dec. 17,
1992
I was a panelist for a CLE program along with a state
court trial judge and two practicing attorneys; we
responded to scenarios raising issues re. handling
conflicts eunong counsel.
Ohio Ass'n of Criminal Defense Attorneys: "Protecting the
Right to Federal Review While You are Still in State
Court, " Feb. 28, 1992
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under $12. c. 2] for a CLE progrcun.
Toledo Bar Ass'n, "What Every State Court Attorney Must Know
About Federal Habeas Corpus," Oct. 4, 1991
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under S12.C.2] for a CLE program.
Toledo Bar Ass'n, "Rule 11 Review," March 5, 1991
I discussed Rule 11 of the Federal Rules of Civil
Procedure and its application locally for a CLE progreun.
176
Toledo, Bar Ass'n, "Federal Sentencing," Nov. 26, 1990
This was a CLE prograin, which I moderated, discussing
practices under the Federal Sentencing Guidelines.
Ohio Auto Theft Investigators' Ass'n, "Principles of Search
and Seizure," Sept. 13, 1990
This was a speech for insurance company employees and law
enforcement officers about basic Fourth Amendment
doctrines .
American CLE Seminars, "Search and Seizure," May 22, 1990
This was an overview of recent developments in the law of
search and seizure for a CLE seminar.
Ohio Judicial College, "Ohio's Electronic Surveillance Law,"
May 21, 1987
This was a description of Ohio's newly enacted electronic
surveillance statute and its federal counterpart for an
Ohio appellate judge's seminar.
Ohio Academy of Trial Lawyers, "Federal Habeas Corpus Relief,"
Feb. 13, 1987
I discussed general principles of federal habeas corpus
for a criminal defense attorneys' CLE program.
13. Health ; What is the present state of your health? List the
date of your last physical examination.
a. Health ; excellent
b. Date of Last Physical Examination ; February 11, 1993
14. Judicial Office ; State (chronologically) any judicial offices
you have held, whether such position was elected or ap(>ointed,
and a description of the jurisdiction of each such court.
United States Magistrate
Northern District of Ohio 1979 to date
Appointed by the District Judges
Federal Court with general trial jurisdiction
15. Citations ; If you are or have been a judge, provide; (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where
10
177
your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for your
significant opinions on federal and state constitutional
issues, together with the citation of appellate court rulings
on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
a. Ten Most Significant Decisions
Central Residents Council, Inc. v. Lucas Metropolitan
Housing Authority . No. C85-7610 (Dec. 14, 1989).
In this opinion, I concluded that the plaintiffs were
prevailing parties and that they were entitled to
attorneys' fees. The important aspect of this decision
was my discussion of standards for review of petitions
for attorneys' fees filed by prevailing counsel in civil
rights cases, and, as well, evaluation of the role of the
court in such circumstances . My approach was adopted by
Judge Potter.
Cheetwood v. Roberts . No. 3:90CV7432 (Jan. 15, 1993)
This is a Securities and RICO case in which I concluded
that the plaintiffs had failed to file their complaint
within the period of limitations. The case, which has
settled, raised interesting allegations of fraud and
other wrongdoing involving the sale of shares in real
estate developments.
In re Grand Jury Investigation Art Materials Industry .
No. Misc. 81-61 (Nov. 16, 1981).
I rejected claims by state attorneys general that they
were entitled to access to federal anti-trust grand jury
materials. An appeal was dismissed voluntarily. At the
time that this opinion was written, there was
considerable interest, particularly on the part of
counsel for public institutions that desired to pursue
anti-trust civil claims after investigation by a federal
grand jury, in the issues that it discusses. The position
that I took was later adopted in another case by the
Supreme Court .
Kreimes v. Dep't of the Treasury , No. C 79-264 (Nov. 9.
1983).
This was a suit by taxpayers to recover taxes that had
been paid following disallowance of a catastrophic loss
deduction. After return of a verdict in favor of the
plaintiffs, they sought an award of fees under the Equal
Access to Justice Act. I granted their request. My
11
178
decision was affirmed by the Sixth Circuit. This was one
of the first decisions construing and applying the Equal
Access to Justice Act.
Seilon v. Lamb . No C83-314 (July 27, 1983).
This was a securities case in which I concluded after
lengthy proceedings that a violation of applicable
securities laws had occurred and recommended appropriate
relief. The case involved complex securities law issues.
Judge Potter affirmed my decision. An appeal was
dismissed voluntarily.
Sharp V. Owens Corning Fiberqlas , No. 80-450 (Oct. 20,
1983, Aug. 2, 1984).
This was a class action employment discrimination case.
These decisions involve unusual issues that arose after
the defendants had filed a motion to remove the class
representatives. The motion to remove class
representatives was filed after the lawyer for the
plaintiff class had sued three of the class
representatives in state court for non-payment of
litigation costs.
Following a hearing, I ruled that the representatives
should be removed, the lawyer should be disqualified as
class counsel, and the remaining class representatives
should undertake to secure new counsel independent of
counsel who had been disqualified. Judge Walinski upheld
that ruling.
Thereafter, the defendants challenged the compliance of
the remaining class representatives with the directive
that they secure counsel for the class independent of the
attorney who had been disqualified as class counsel. I
concluded that the remaining class representatives had
not obtained counsel who were independent of the former
class counsel, and I recommended that class certification
be denied. This ruling was also upheld by Judge Walinski.
A subsequent appeal was dismissed voluntarily.
Both of my decisions resulted from unusual circumstances
that had no duplicate in any decision that I was able to
locate.
The attorney whose removal I ordered later sued me and
filed judicial misconduct complaints against me and Judge
Walinski. Those matters are discussed in my answers to
Questions 9 and 10 in Section IV.
12
179
Shellhanuner v. Lewallan . No. C82-689 (Nov. 22, 1983).
This was a case brought under the Fair Housing Act in
which the plaintiffs, a husband and wife, claimed that
their tenancy had been terminated by the landlord after
the wif3 had refused to engage in sexual activities with
him. I was the first judicial officer to hold that sexual
harassment of the sort alleged in the complaint
constituted unlawful discrimination on the basis of
gender under that statute. The Sixth Circuit upheld the
outcome of this case on appeal.
United States v. Yee , 129 F.R.D. 629 (N.D. Ohio 1990).
United States v. Yee . 134 F.R.D. 161 (N.D. Ohio 1990),
aff'd sub nom. United States v. Bonds . F.3d (6th
Cir. 1993) (Slip Op. Nos . 91-3608/3609/3610, Dec. 15,
1993)
The government in this case undertook to obtain approval
to use DNA evidence. This case involved the first
extensive challenge in a federal court to such evidence,
and the record that I developed during five weeks of
hearings has been used in state and federal courts
throughout the country in ruling on the admissibility of
DNA evidence .
In the first decision, I granted the defendants' request
for extensive prehearing discovery. That decision, which
was not appealed by the government to the District Judge,
was the first instance in which a DNA laboratory was
required to divulge substantial information about its
procedures .
In the second decision, I held that DNA evidence obtained
by the F.B.I. 's protocol and procedures met standards of
admissibility. That decision, which is the most extensive
reported examination of the admissibility of DNA
evidence, was affirmed by the Sixth Circuit in United
States V. Bonds . F.2d (6th Cir. 1993)(Slip.
Op., No. 91-3608/3609/3610, Dec. 15, 1993).
Women's Pavilion. Inc. v. Moriaritv . No. 91CV7250 (April
6, 1992, April 8, 1992) .
This case involved a suit by a local abortion clinic
against anti-abortionists who had, according to the
complaint, interfered unlawfully with the clinic's
legitimate operations.
In the first decision I held that the clinic and its
physician did not have to disclose the identities of the
clinic's patients. This decision involved important
13
180
questions of privilege and discovery in the context of
this and similar cases.
In the second decision I held that an individual
plaintiff: a) could sue the defendants under RICO (though
her pleading in this case was deficient), b) could not
maintain claims of trespass and interference with her
employment contract, and c) could assert an assault
claim.
In addition, the second decision also held that a
corporate plaintiff: a) could not bring an assault and
battery claim, b) could proceed to trial on its
interference with contract claim, c) sue on behalf of its
patients, staff, and employees, and d) maintain its RICO
claim against the defendants without alleging economic
harm.
Judge Potter rejected my ruling as to the RICO claim and
dismissed the case (remanding the state claims back to
state court) . The approach taken in my decision on the
use of RICO by abortion clinics conforms to the Supreme
Court's subsequent decision in National Organization for
Women v. Scheidler . U.S. , 114 S.Ct.
(1994) .
In re John W. Young v. Endsley . No. C86-7903 (May 2,
1988), rev ' d , 872 F.2d 176 (6th Cir. 1989)
In this case I held that a statutory limitation on the
liability of shipowners was not applicable to the owners
of pleasure boats. My decision was reversed by the Sixth
Circuit. The case is significant because it addresses the
issue of whether persons injured in boating accidents
involving pleasure craft can recover damages in excess of
the value (which is often quite low) of the boat and its
goods .
b. Reversals by the Court of Appeals
D. Ct. No. Caption and Summary
Ct . App . No .
77-372 Hand v. Central Transport, Inc.
84-3850
This was an antitrust case in which I
recommended that summary judgment be granted
in the defendant's favor; that recommendation
was upheld by the District Judge.
The court of appeals reversed. Hand v. Central
Transport . 779 F.2d 8 (6th Cir. 1985). The
14
181
court held that the proper standard had been
applied, but that evidence submitted by the
plaintiff in his objections to the District
Judge should have been taken into account.
78-174 Heid v. Secretary of H.H .S.
83-3747
This was a social security disability case in
which I entered an order denying benefits to
the plaintiff.
The court of appeals remanded to the Secretary
for further consideration in light of a
statute that required such result for cases
pending in the federal courts as of Sept. 19,
1984 (my decision had been entered on Sept.
14, 1983).
1^'^^ Lowe V. Chem-Trol Chemical Co.. Inc.
This was an action under the Vietnam Era
Veterans Readjustment Act in which I
recommended that summary judgment be entered
for the plaintiffs; that recommendation was
upheld by the District Judge.
The court of appeals reversed. Raypole v.
Chem-Tro l Chemical Co.. Inc. . ^ 754 F.2d 169
(6th Cir. 1985). Noting that the case was one
of first impression, the appellate court held
that contributions that I concluded had been
required under the Act had not been mandated
by the Act.
l^'ll"^ Ravpole v. Chemi-trol Chemical Co.. inc.
84-3041 '
This is a companion case to the preceding
case.
79-328 Philips v. Secretary of H.H.S.
8 1—3130
This is a social security case in which I
recommended that benefits not be awarded; the
District Judge upheld that recommendation.
The court of appeals held that substantial
evidence did not support the Secretary's
decision to deny benefits.
15
182
79-493
80-3764
81-63
82-3329
Linton v. Perini
This was a habeas corpus case in which I
reconunended that relief be denied; that
reconunendation was upheld by the District
Judge .
The court of appeals, Linton v. Perini . 656
F.2d 207 (6th Cir. 1981), held that,
regardless of the absence of prejudice to the
defendant, the petitioner's Sixth Amendment
right to counsel had been denied when a
continuance by newly retained counsel had been
denied, and trial had conunenced ten days after
that lawyer had first appeared.
Smith V. Perini
This was a habeas corpus case in which I
recommended dismissal on the basis that the
petitioner had failed to exhaust his state
court remedies and that, in any event, his
claims were without merit. My recommendation
was adopted by the District Judge.
The court of appeals, agreeing that exhaustion
had not occurred, ordered that the case be
dismissed for want of exhaustion without
prejudice to the petitioner to relitigate the
merits of his claims once exhaustion had been
accomplished. Between the filing of my Report
and Recommendation and the court of appeal's
reversal, the Supreme Court had held in Rose
V. Lundy . 455 U.S. 509 (1982), that where a
petition contains unexhausted claims, it must
be dismissed without consideration of the
merits .
81-436
84-3777
86-3421
Nichols V. Perini
This was a habeas corpus case in which I twice
recommended that relief be granted on the
basis that the petitioner had not been
informed adequately about the sentencing
consequences of a plea of guilty.
My first Report and Recommendation, which had
been adopted by the District Judge, was
reversed on the basis that I had
misinterpreted the applicable sentencing
statute. The case was remanded, and I again
16
183
found that the petitioner had not understood
the sentencing consequences. That decision was
upheld by the District Judge
The court of appeals reversed. Nichols v.
Perini, 818 F.2d 554 {6th Cir. 1987). The
court held that I had failed to take into
account factual findings by the Ohio courts In
their review of the petitioner's claims.
81-499 Hurst v. Schweiker
83-3066
This was a social security case in which I
recommended denial of benefits and the
recommendation was adopted by the District
Judge .
The court of appeals. Hurst v. Schweiker , 725
F.2d 53 (6th Cir. 1984), held that substantial
evidence did not support the denial of
benefits .
81-594 Billings v. Bharmota
84-3453
This was a prisoner civil rights case in which
I recommended that the defendant's motion for
summary judgment be denied. That
recommendation was upheld by the District
Judge .
The court of appeals reversed on the basis
that the defendant's conduct had not shown
deliberate indifference to the plaintiff's
medical needs .
81-604 Bell & Beckwith v. USA
83-3582
This was an interpleader action brought by a
stock broker to resolve the ownership of funds
in its custody. The parties consented to my
jurisdiction, and, following a pretrial
conference, I entered an order directing
disbursement of the funds .
The court of appeals reversed. Bell & Beckwith
V. United States . 766 F.2d 910 (6th Cir.
1985), on the basis that there had been no
federal question jurisdictional basis for
entertaining the interpleader action.
17
184
81-774 Riverview Investments v. Ottawa County
84-3445 Community Improvement Corp.
This was a civil rights and antitrust case in
which the plainti££, a landowner who had an
agreement with a shopping center for
development of his property, claimed that the
defendants' refusal to issue industrial
revenue bonds (such issuance being a condition
of the plaintiff's agreement with the shopping
center) violated the civil rights act and
antitrust laws. I recommended summary judgment
in defendants' favor, and that reconmiendation
was approved by the District Judge.
The court of appeals held that the decision
regarding the civil rights -claim had been
correct; it remanded on the antitrust claim
for further development of the record in light
of intervening Supreme Court decisions.
Riverview Investments. Inc. v. Ottawa County
Improvement Corp. . 769 F.2d 324 (6th Cir.
1985) .
82-10 Hazelwood v. Bharmota
83-3347
83-3202 This was a medical malpractice case in which I
recommended that summary judgment be granted
to the defendants because the plaintiff failed
to file the complaint within the applicable
limitations period. The recommendation was
adopted by the District Judge .
The court of appeals vacated and remanded for
further consideration in light of an
intervening decision by the Ohio Supreme
Court .
82-208 Oqlebay Norton Co. v. CSX Corp.
85-3093
85-3069 This was an action brought by a shipowner
against the operator of a dock, in which the
plaintiff sought indemnification from the
dockowner after a seaman's claim against the
shipping company had been settled. The parties
consented to my jurisdiction, and I entered
judgment after a nonjury trial denying the
indemnity claim but awarding contribution.
The court of appeals held that I had
misapplied the legal standard applicable to
the plaintiff's indemnity claim.
18
185
82-528 Franchinni v. Secretary of H.H.S.
84-3176
This was a social security disability case in
which I recommended denying benefits to the
plaintiff. The District Court upheld my
recommendation .
On appeal, the court of appeals remanded to
the Secretary for further consideration in
light of a statute that required such result
for cases pending in the federal courts as of
Sept. 19, 1984 (my decision had been entered
on Nov. 22, 1983) .
82-876 Faust v. Heckler
83-3919
This was a social security case in which I
ordered that benefits be denied.
On appeal, the court of appeals remanded to
the Secretary for further consideration in
light of a statute that required such result
for cases pending in the federal courts as of
Sept. 19, 1984 (my decision had been entered
on Oct. 25, 1983).
CR83-129 USA v. Bell
84-3534
This was a criminal case in which I
recommended that the defendant's motion to
suppress be granted. The basis for that
recommendation was a finding that an F.B.I,
agent had not had an adequate basis for
frisking the defendant. My recommendation was
upheld by the District Judge.
The court of appeals reversed, United States
V. Bell . 762 F.2d 495 (6th Cir. 1985), on the
basis that the agent had had a sufficient
cause for the frisk.
83-238 Leal v. Perini
84-3873
87-3014 This was a habeas corpus case in which I twice
recommended that relief be granted to the
petitioner on the basis that the prosecution
had improperly withheld material evidence to
which the petitioner had been entitled (a
taped conversation, a prior inconsistent
statement by the state's principal witness,
and lie detector results indicating
untruthfulness on the part of that witness).
19
186
Each of my recommendations was upheld by the
District Judge.
In its first decision, the court of appeals
remanded for further consideration in light of
an intervening Supreme Court decision. On
remand, I again recommended granting relief,
and the recommendation was approved by the
District Judge.
In its second decision, the court of appeals
held that the evidence that had been
%nrongfully withheld had not been material to
the petitioner's conviction. The petitioner
has subsequently received a governor's
commutation.
83-266 Steinoraber v. Heckler
84-3348
This was a social security case in which I
ordered denial of benefits.
The court of appeals remanded to the Secretary
for further consideration in light of evidence
that the plaintiff had undergone back surgery
following entry of my decision and while the
case was pending before the appellate court.
83-536 Tiernev v. City of Toledo
85-3016
85-3290 This was a civil rights case brought by a
88-4047 officer against the City of Toledo and its
Police Patrolmens' Union, in which the
plaintiff alleged that the "fair share"
agreement between the City and Union violated
his First Amendment rights due to inadequate
procedures for ensuring that the plaintiff's
contribution was spent solely for collective
bargaining purposes .
The parties consented to my jurisdiction.
Following an injunction hearing, I held that
the union's procedures met constitutional
standards .
The court of appeals upheld that decision.
Tiernev v. City of Toledo . 785 F.2d 310 (6th
Cir.), vacated . 475 U.S. 1115 (1986).
Thereafter, following an intervening Supreme
Court decision, the appellate court's decision
was vacated, and it remanded the case to me
for further proceedings.
20
187
Following further proceedings, I ruled that
the union's revised procedures met
constitutional requirements .
That decision was reversed by the Sixth
Circuit, Tierney v. City of Toledo . 824 P. 2d
1497 {6th Cir. 1987), on the basis that the
procedures that I had approved were not
sufficient to protect the plaintiff's First
Amendment rights.
Thereafter, I again found the union's plan, as
further revised, to be acceptable. In
addition, I rejected the plaintiff's demand
for extensive access to the union's books and
records .
That decision was affirmed in part and
reversed in part by the Sixth Circuit in
Tiernev v. City of Toledo . 917 F.2d 927 (6th
Cir. 1990), with the court directing further
proceedings relative as to whether the audit
procedures were adequate to verify
expenditures and requiring me to order the
union to make specific disclosures concerning
its income and expenditures.
83-536 Central States Southeast and Southwest Area
84-3869 Pension Fund v. Transservice Systems. Inc.
This was an action brought by a pension fund
to collect contributions from the defendant,
who was the former employer of a beneficiary
of the fund. Following a nonjury trial (the
parties having consented to my jurisdiction),
I held in favor of the plaintiff.
The court of appeals remanded for further
consideration with regard to an issue that it
concluded I had not adequately considered and
for further clarification of my original
decision.
85-730 Wallace v. Hubbard
84-3274
This was a pro se prisoner civil rights case
alleging inadequate medical treatment; the
only named defendant was the warden. I
recommended that the defendant's dismissal
motion be granted; that recommendation was
adopted by the District Judge.
21
188
The court of appeals reversed on the basis
that the plaintiff should be given time in
which to undertake to amend his complaint to
state more clearly the parties against whom he
was seeking relief.
83-854 Akbar v. Seiter
84-3052
This was a pro se prisoner civil rights case
in which the plaintiff claimed that
regulations regarding clothing violated his
First Amendment rights . I recommended that the
complaint be dismissed on the basis of res
judicata, and that recommendation was upheld
by the District Judge.
The court of appeals affirmed in part and
reversed in part, with the- reversal being
based on the determination that some of
plaintiff's claims had not been resolved in
his earlier litigation.
83-1084 Ward v. Secretary of H.H.S.
85-3703
This was a social security case in which I
recommended that benefits be denied, and that
recommendation was upheld by the District
Judge .
The court of appeals affirmed in part and
vacated and remanded for the purpose of
consideration of decisions by that court that
had been rendered after the date of my Report
and Recommendation.
84-7016 Brown v. Seiter
84-3420
This was a pro se prisoner civil rights case,
in which I recommended dismissal, and that
recommendation was upheld by the District
Judge .
The court of appeals affirmed in part and
reversed in part on the basis that the
complaint adequately stated a cause of action
as to one of the defendants.
84-7124 McLaughlin v. Excel Wire & Cable Co.
85-3258
This was an age discrimination case in which I
recommended that summary judgment be granted
for the defendant. I concluded that plaintiff
had not filed his administrative complaint
22
189
within the requisite period and an election of
remedies precluding other claims had occurred.
That recommendation was upheld by the District
Judge .
The court of appeals reversed, holding that
equitable tolling had extended the period for
filing and no election of remedies had
occurred .
84-7388 Crawford v. Secretary of H.H.S.
86-3562
This was a social security case in which the
parties consented to my jurisdiction and in
which I denied benefits.
The court of appeals held that substantial
evidence had not supported the Secretary's
denial of benefits.
84-7623 Hoffman v. Glidden
86-3738
This was an employment discrimination case
that was referred to me for Special Master
hearing. I recommended that defendant's motion
for summary judgment be granted, and that
recommendation was adopted by the District
Judge .
The court of appeals reversed on the basis
that there was a genuine dispute of material
fact concerning the alleged pretextuality ot
the defendant's reasons for its actions.
84-7758 Berry v. Secretary of H.H.S.
86-3491
This was a social security case in which the
parties consented to my jurisdiction and I
ruled that benefits be denied.
The court of appeals reversed on the basis
that the Secretary's decision to deny benefits
was not supported by substantial evidence.
84-7777 Brown v. Secretary of H.H.S.
86-3886
This was a social security case in which I
recommended that benefits be denied, and that
recommendation was upheld by the District
Judge .
23
190
The court of appeals reversed on the basis
that the Secretary's decision to deny benefits
was not supported by substantial evidence.
84-8054 Canderm. Inc. v. Elder Pharmaceuticals. Inc.
87-3352
This was a breach of contract and tortious
interference with contractual relations case
in which the parties consented to my
jurisdiction. Prior to trial (which resulted
in a verdict for the plaintiff), I dismissed
plaintiff's claims as to one defendant and its
punitive damages claim; those rulings were
upheld by the court of appeals . I also had
ruled prior to trial that the defendant had
not been entitled to advance a particular
defense.
That ruling was reversed on appeal on the
basis that there were material disputes of
fact requiring determination of by the jury.
Canderm. Inc. v. Elder Pharmaceutical. Inc. .
862 F.2d 597 (6th Cir. 1988).
84-8088 Hardin v. Secretary of H.H.S.
85-3967
This was a social security case in which the
parties had consented to my jurisdiction and I
ordered that benefits be awarded.
The court of appeals remanded on the basis of
an intervening decision by that court.
85-7464 In re Bell & Beckwith
87-3006
This was an action brought by the trustee of a
bankrupt stock brokerage to recoup funds paid
to an attorney who had been retained by the
firm's principal after the principal's fraud
had been uncovered. The parties consented to
my jurisdiction. Following trial, I found that
the attorney had neither known nor had reason
to know that the funds that he had been paid
at the outset of his representation of the
principal were proceeds of the fraud.
The court of appeals reversed, holding that
the attorney had been under a duty of incpiiry
and thus was chargeable with knowledge that
the funds he had received had derived from the
fraud. In re Bell & Beckwith . 838 F.2d 844
(6th Cir. 1988) .
24
191
86-7903
88-3483
87-7684
89-3750
89-3777
89-7031
90-3371
90CV7617
92-3821
Ends lev v. Young
This was an admiralty case in which the
parties consented to my jurisdiction. I
granted summary judgment in favor of a party
injured by an explosion on a pleasure boat.
That judgment was limited to the issue of
liability: I held that a statutory limitation
of a vessel owner's liability was not
applicable to the owners of pleasure boats.
The court of appeals, reversed, holding that
the statutory limitation of liability was
applicable to commercial ships and pleasure
craft alike. In re John Young . 872 F.2d 176
(6th Cir. 1989) .
Rodriguez v. Frankenmuth Mutual Ins. Co.
This was a diversity case in which, following
trial and return of a jury verdict in favor of
the plaintiff, I entered judgment
notwithstanding the verdict in favor of the
defendant. I held that there had been a
failure of proof as to proximate cause and
damages .
The court of appeals reversed, holding that
adequate evidence supported the jury's
verdict.
Simpson v. Diversitech General. Inc.
This was an employment discrimination case in
which the parties consented to my
jurisdiction. Following trial, I entered
judgment for the defendant on the basis that
defendant had met its burden of proof in a
"mixed motives" case that its decisions would
have been the same without regard to the
racial animus of one of its employees.
The court of appeals held that the defendant
had not met that burden.
Fifth Third Bank v. Dziersk. et al .
This was a diversity case in which I granted
summary judgment in favor of the plaintiff,
which claimed that the defendant bank had
wrongfully accepted deposit of a check from
the plaintiff payable to two individuals
25
192
without the signature of one of the
individuals having been subscribed to the
check.
The court of appeals reversed, holding that I
had erred when I declined to permit the
defendant bank to assert a contributory
negligence defense.
I am aware of no decision by the court of appeals in
which, though my decisions were affirmed, the court was
significantly critical of my substantive or procedural
rulings.
Significant Federal or State Constitutional Decisions
In re Affidavit for Issuance of Multiple Search Warrants .
No. 85-7070M (Dec. 5, 1985).
In this case an individual whose property had been seized
claimed that its continued retention by the government
constituted a violation of due process. I rejected his
claim, but directed the government to proceed with a
forfeiture proceeding by a date certain. There was no
appeal. The case was significant because it raised
interesting issues of the ability of the state to hold
seized property without proceeding promptly with further
investigation and return of criminal charges .
Barnett v. Bell . No. C 80-563 (July 2, 1986).
Plaintiffs in this case contended that the conditions at
the Hancock County Jail violated the Eighth Amendment. I
concluded that the conditions were not constitutionally
defective and that the plaintiffs were not entitled to
relief. Judge Potter upheld my ruling. An appeal was
voluntarily dismissed. The significance of the case
related to its institutional reform aspects.
Culp V. City of Toledo . No. C 88-7760 (July 30, 1990).
This was a suit by a dismissed employee of the City of
Toledo, who claimed that the Federal Constitution and
state law had been violated by the means by which he had
been terminated. I rejected many of his claims, but also
concluded that his right to due process had been
violated. Following my ruling, the case was settled. The
case was significant because it involved an
interpretation in light of the due process clause of a
provision of the City charter requiring that terminations
be based on cause.
26
193
Doe V. City of Toledo . C 81-772 (March 20, 1986).
This case involved an application by a television station
to disclose the name of a plaintiff who had been
permitted to proceed anonymously with a civil claim to
recover funds that had been seized by a police officer.
I held that such disclosure should occur. There was no
appeal. The significance of the case resulted from the
conflict between the media's right of access and the
individual's right of privacy where no criminal charges
were pending.
Downton v. Perini . 511 F. Supp. 258 (N.D. Ohio 1981).
This was a case of first impression in any federal court.
I held that an attorney's threat to withdraw from further
representing his client in a capital murder case unless
the client accepted his recommendation to plead guilty
led to an involuntary plea and denial of the right to
counsel. My recommendation that habeas relief be granted
was upheld. An appeal was dismissed voluntarily.
Glover v. McMackin . No. 3:90CV7232 (Sept. 18, 1990,
July 23, 1992) .
This was a habeas corpus case in which I concluded that
the defendant's conviction violated the double jeopardy
clause of the Fifth Amendment. The Sixth Circuit remanded
for further evidence. Glover v. McMackin . 950 F.2d 1236
(6th Cir. 1990). After taking further evidence, I again
concluded that the double jeopardy clause had been
violated, and recommended that relief be granted. Judge
Potter upheld my ruling. There was no appeal. The case
involved a significant issue under the double jeopardy
clause.
Hernandez v. County of Seneca . No. C 82-475 (July 20,
1983) .
This was a civil rights case challenging the conditions
of confinement at the Seneca County Jail. Following an
injunction hearing, I concluded that the conditions with
regard to danger of and from fire justified granting
injunctive relief. There was no appeal. The case was
important because it involved important issues under the
Eighth Amendment and resulted, somewhat unusually, in a
order directing that a county jail be closed, rather then
rehabilitated or reconstructed to conform to
constitutional requirements.
Tierney v. City of Toledo . No. C83-430 (Aug. 2, 1984;
Dec. 11, 1984; March 26, 1985; April 27, 1988; Nov. 8,
27
194
1988). Court of Appeals, Tiernev v. City of Toledo . (No.
85-3016 & 85-3290), Jan. 14, 1986; 824 F.2d 1497 (6th
Cir. 1987); 917 F.2d 927 (6th Cir. 1990).
This is a series of opinions involving a challenge to the
union's agency fee rebate procedure. I initially held
that the procedures afforded appropriate constitutional
protection to the First Amendment interests of the
plaintiffs. That decision was affirmed in an unpublished
opinion on appeal by the Sixth Circuit.
Thereafter, the Supreme Court decided Chicago Teachers
Union v. Hudson . 475 U.S. 252 (1986). That Court also
vacated the Sixth Circuit's affirmance and remanded for
further consideration in light of Hudson . When the case
returned to me, I found the changes that had been
instituted in the union's plan were - adequate . That
decision was reversed by the Sixth Circuit. Tierney v.
City of Toledo . 824 F.2d 1497 (6th Cir. 1987).
After that decision, I again found the plan, as amended,
acceptable. In addition, I rejected the plaintiff's
demand for extensive access to the union's books and
records. This decision was reversed in part and affirmed
in part by the Sixth Circuit. Tierney v. City of Toledo .
917 F.2d 927 (6th Cir. 1990). Thereafter the parties
negotiated a settlement.
This series of opinions was significant because they
involved important and, at the time they were decided,
unsettled issues under the First Amendment about the
constitutionality of "fair share" programs and related
procedural questions.
In addition to the foregoing decisions, the following
were cases raising constitutional issues in which my
decisions were reversed by the Court of Appeals.
Summaries of these decisions appear in §15. b. and copies
of the opinions are included with the other materials
submitted with regard to that section.
Brown V. Seiter . No. C84-7016
Billings v. Bharmota . No. C81-594
Leal V. Perini . No. C83-238
Linton v. Perini . No. C79-493
Nichols V. Perini . No. 81-436
28
195
Riverview Investments v. Ottawa County CommunitY
Improvement Corp. . No. C84-3445
USA V. Bell . No. CR83-129
16. Public Office ; State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
Lucas County Mental Health Board 1981-87
Board Member (appointed)
Lucas County Children Services Board 1987-92
Board Member (appointed)
Childrens' Trust Fund 1986-92
Board Member (appointed)
Juvenile Justice Advisory Board
Board Member (appointed) 1990-92
I have never been a candidate for elective public
office.
17 . Legal Career ;
a. Describe chronologically your legal career after
graduation from law school including;
1. whether you served as a clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
I did not serve as a clerk to a judge.
2. whether you practiced alone, and if so, the
addresses and dates;
While a law professor at the University of Toledo
(1970-79), I participated in three cases in the
Lucas County, Ohio, Juvenile Court. In two of these
cases I was appointed by the court to represent
parents of children alleged to have been abused or
neglected. In the third case I represented
grandparents seeking to visit with and obtain
custody of their grandchildren.
In 1978 and 1979 I consulted in two cases with
lawyers defending clients in criminal cases
29
196
involving electronic surveillance by the
government. This work was done at home.
Other than these matters, I do not recall any other
instances in which I engaged in the practice of law
on my own.
the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
Gardner, Carton, Douglas, Chilgren & Waud
[now: Gardner, Carton & Douglas]
321 N. Clark St. Associate
Chicago, Illinois 60610 1966-68
Cook County Legal Assistance Fndtn.
1146 Westgate St. Staff Attorney
Oak Park, Illinois 60301 1968-70
Church Foundation of Greater Chicago
112 East Chestnut St. Volunteer Atty.
Chicago, Illinois 60611 1966-70
Lucas County Prosecutor's Office
Lucas County Courthouse Asst. Prosecutor
Toledo, Ohio 43624 1972-73
1. What has been the general character of your law
practice, dividing it into periods with dates of
its character has changed over the years?
While employed as an associate with Gardner, Carton,
Douglas, Chilgren & Waud in Chicago (1966-68), I worked
with most, if not all of the partners and associates on
a broad range of matters. The work encompassed personal
injury defense, contract and commercial law, corporate
matters, securities underwriting, real estate, probate,
and taxation.
From 1968-70, I was a staff attorney with the Cook County
Legal Assistance Foundation, assigned to the agency's
Evanston, Illinois, office. During that time, I
represented poor clients in housing, consumer, welfare,
and juvenile law matters.
Beginning shortly after my employment with Gardner,
Carton, Douglas, Chilgren & Waud, and continuing until we
moved from Chicago in 1970, I was a volunteer legal aid
attorney with the Church Foundation of Greater Chicago.
30
197
I worked one night a month interviewing clients in a
neighborhood office located in a church basement. Where
appropriate, I thereafter either represented those
clients or referred them to other counsel. This work
encompassed housing, consumer, and welfare matters.
For a period of about ten months while I was teaching at
the University of Toledo, I served on a part-time basis
as an Assistant Lucas County Prosecutor in charge of the
Juvenile Court docket.
2. Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
The clients at Gardner, Carton, Douglas, Chilgren & Waud
were primarily companies located or doing business in the
Chicago area. The firm's clients were those typical of a
moderate sized large city law firm. I had no specialty
while working there.
The clients whom I represented as a Staff Attorney with
the Cook County Legal Assistance Foundation (and, as
well, as a volunteer with the Church Federation) were
poor people who otherwise would not have had counsel.
During my second year with the Foundation, I handled all
of the juvenile court cases in the office, and developed
a degree of specialization in that area.
During my time with the Lucas County Prosecutor's Office,
I, along with student interns authorized to practice
under Ohio's student practice rule, represented the state
in delinquency and nondelinquency matters. This called
for expertise in criminal law and procedure. Juvenile
law, and juvenile court procedure.
c. 1. Did you appear in court frequency, occasionally, or
not at all?
While working with Gardner, Carton, Douglas, Chilgren &
Waud, I appeared in court occasionally. Those appearances
were limited to pretrial motions and pretrial
conferences, and occurred principally in the Circuit
Court (i.e., general trial court).
When working with the Cook County Legal Assistance
Foundation, I appeared in a large number of courts,
including federal district court, the Cook County Circuit
Court and municipal courts in Chicago and its suburbs. I
would be in court several times weekly.
Though I attended court while teaching at the Law School
of the University of Toledo, I rarely participated in
31
198
proceedings. Instead, I would supervise students enrolled
in the Law School's criminal law clinical progreun.
During the approximately ten month period that I worked
part-time as an Assistant County Prosecutor, I would be
in juvenile court two or three times a week, usually for
an hour or two on each occasion.
2. Nhat percentage of these appearances was in:
(a) federal courts: 5%
(b) state courts of record: 95%
(c) other courts 0%
3. What percentage of your litigation was:
(a) civil: '90%
(b) criminal: 10%
4. State the approximate number of cases in courts of
record you tried to verdict or judgment (rather
than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
With Gardner, Carton, Douglas, Chilgren & Waud, I
tried no cases to verdict or judgment.
With the Cook County Legal Assistance Foundation, I
tried approximately twenty cases to verdict or
judgment. I was sole counsel in these cases.
While a part-time Assistant County Prosecutor, I
tried approximately ten cases to verdict or
judgment.
5. What percentage of these trials was:
(a) jury; 0%
(b) non-jury 100%
18. Litigation ; Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe briefly the nature of your participation in the
litigation and the final disposition of the case.
While a legal aid attorney, I asserted successfully a defense
of unconscionability against collection agencies in a couple
of cases. At the time, this was a relatively novel legal issue
32
199
which was being asserted principally by legal aid lawyers. The
cases were thereafter dismissed. I was sole counsel.
In several juvenile cases as a legal aid attorney I raised
issues relating to pretrial discovery and the right to jury
trial. Either the discovery motions would be overruled or
discovery would be forthcoming informally without a ruling.
The demands for trial by jury were overruled. I was sole
counsel .
With the Chief Attorney and other lawyers in our legal aid
office, I represented a group of Black Northwestern University
students who were subjected to disciplinary proceedings that
might have led to their expulsion. As a result of our efforts,
due process procedures were developed and implemented. I do
not recall the outcome of those proceedings, though I believe
the students were not severely disciplined. '
While a law professor at the University of Toledo I was
appointed in two cases by the Lucas County, Ohio, Juvenile
Court to represent parents of children alleged to have been
abused or neglected. In those cases I encouraged the court to
use an innovative procedural mechanism to work toward
restoration of custody to the parents under controlled
circumstances. In another case I successfully asserted the
right of grandparents to visit with grandchildren who had been
left with a child welfare agency by their parents; in due
course and over the objection of the agency, which sought to
place the children in separate foster homes, the grandparents
were permitted to adopt the children.
None of these matters resulted in reported decisions. I have
no recollection of the ncunes of the cases or individual
parties. The following, however, are attorneys with whom I
worked while practicing as an attorney in the Chicago area.
Except for the lawyers with whom I worked at Gardner, Carton
& Douglas, I have indicated their relationship to me as of
that time.
Robert K. Downs (Volunteer, Church Federation)
Downs & Downs, P.C. 708 848-0700
1010 Lake Street #620
Oak Park, Illinois 60301
Robert G. Freeman (Associate, Cook Co. Legal Asst. Fndtn. )
125 Longs Peak Drive 303 823-6622
P.O. Box 1126
Lyons, Colorado 80540
33
200
Hon. Marvin Gavin (Exec. Dir.,
Circuit Court of Cook County
16501 South Kedzie
Markham, Illinois 60426
Hon. Curtis Heaston (Exec. Dir.
Circuit Court of Cook County
Richard J. Daley Center
Chicago, Illinois 60602
Cook Co. Legal Asst. Fndtn.)
708 210-4606
Cook Co. Legal Asst. Fndtn.)
312 443-4337
Hon. Leo E. Holt (Supervisor, Cook Co. Legal Asst,
Circuit Court of Cook County 708 210-4220
16501 South Kedzie
Markhajn, Illinois 60426
Fndtn . )
312 644-3000
William L. Morrison
Gardner, Carton & Douglas
Quaker Tower, Suite 3400
321 North Clark St.
Chicago, Illinois 60610-4795
Prof. Sheldon H. Nahmod (Associate, Cook Co. Legal Asst.)
Chicago Kent College of Law 312 906-5261
Illinois Institute of Technology
565 West Adams St.
Chicago, Illinois 60661-3691
312 644-3000
John F. Notz
Gardner, Carton & Douglas
Quaker Tower, Suite 3400
321 North Clark St.
Chicago, Illinois 60610-4795
Maria Ann Skirnick (Associate, Cook Co. Legal Asst.)
19 Rockwood Road West 516 365-7186
Plandome, New York 11030
312 644-3000
Joe A. Sutherland
Gardner, Carton & Douglas
Quaker Tower, Suite 3400
321 North Clark St.
Chicago, Illinois 60610-4795
19 • Legal Activities ; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation.
In this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived) .
34
201
I believe that my most significant contributions have been
made while a law teacher, judicial officer, and legal writer,
rather than during my four years as a practicing attorney.
Certainly my most extensive experience with litigation has
come during the fourteen years that I have been serving as
United States Magistrate. Throughout my time of service, I
have been responsible for all social security and habeas
corpus cases. For the first several years over 100 social
security cases and more than 60 habeas corpus cases were filed
annually. Recently, there has been some decline in the number
of filings in these categories, especially in the social
security cases. For the past five years there have been
between 40 and 70 social security cases filed annually. For
the past three years, there have been about 45 habeas cases
filed annually.
In addition, for several years, I was responsible for initial
hearing and determination of all pretrial motions in all civil
rights cases; approximately 130 cases in this category were
filed annually during that period. For several years, these
cases generated a substantial volume of motions that were
referred to me. The extent of my work in this area has
diminished in the past few years, due to the appointment of a
pro se law clerk who prepares opinions in prisoner civil
rights cases, a decline in some years in the number of filings
in the other civil rights categories, and an increase of my
own trial docket and a decrease in the District Judge's
dockets .
Throughout my tenure, I have also had a large number and
variety of matters referred to me in other types of civil
litigation. Among these have been anti-trust, securities,
personal injury and product liability, contract, commercial
cases, and patent. I estimate that I have handled the pretrial
motion work in a dozen or more cases annually from these
categories; several of those cases involved extensive pretrial
motion practice.
Since shortly after being appointed, I have been responsible
for initial hearing and determination of all pretrial matters
in all criminal cases, of which about 90 are filed annually.
I empanel and supervise the grand juries, issue warrants,
conduct detention hearings, hold hearings on motions to
suppress, adjudicate motions to dismiss and for discovery, and
handle any other pretrial matters in criminal cases. The
volume and complexity of pretrial motion work in this area of
the docket has increased in the past few years as the
government has filed several multi-defendant, multi-count drug
cases .
35
202
Finally, my o%m civil docket has expanded steadily throughout
my time of service as Magistrate, as lawyers have consented to
have me be substituted for the District Judge. I have had
extensive civil jury and nonjury trial experience, and my
consent docket is presently about 130 cases. This is eibout a
half to a third the size of the docket of some of the active
District Judges in our District.
36
203
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements stock options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
I have been contributing to the Judicial Retirement System
since 1989. The benefits of this annuity program will be
forfeited upon retirement under 28 U.S.C. S371(a), relating to
Article III judges.
I am a participant in the Thrift Savings Plan contributing
five percent of my salary. I plan to continue doing so, and to
withdraw the funds on retirement.
While at the University of Toledo I participated in the State
Teachers Retirement System. I will receive an annuity of
$1,700 per month from that program on reaching age 65.
I have an annuity that I purchased while a law professor at
the University of Toledo with the Aetna Life Insurance
Company. The present account value is $6,900. I anticipate
receiving the benefits at age 65.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories of
litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
The only potential area of conflict of which I am aware would
arise. in cases in which the University of Toledo (my wife's
employer) is a party. I have recused and will continue to
recuse myself from cases involving the University.
I anticipate no potential conflicts of interest with regard to
my finances, and I will adhere to the requirements of the Code
of Judicial Conduct concerning any conflicts of interest.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so explain.
37
204
I expect to do the writing for the law publishers (Clarlc
Boardman Callahan and Anderson Publishing Company) that I have
done in the past. I expect, accordingly, to update my
treatises. The Law of Electronic Surveillance (Clark Boardman
Callahan) and 2 Andersons Ohio Family Law; Juvenile Court
Practice and Procedure , vnrite the annual Criminal Procedure
Handbook, and edit the Criminal Law Review anthology of law
review articles.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
Net Worth Statement Attached.
Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
No.
38
205
NEmTORTH
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James G. Carr
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Bonds /Description (Jt. Ownership)
Ohio St Bldg Auth St, 6.50%, issued 9/90 53,863
matures 9/1/S6
Massillon Oh City Sch Dist, 6.50%, 55,193
issued 2/90, matures 12/97
Ohio St Liquor Profits, 6.80%, issued 6/89 27,751
matures 3/1/98
Ohio St Higher Edl 6.70%, issued 6/90 561168
matures 5/1/99
Cincinnati Oh New Pub Hsg Auth, 6.00%, 51,000
issued 6/68, matures 7/1/99
Westerville Oh MNV Pk, 6.20% 54,916
issued 6/91, matures 9/15/99
Ohio St Wtr Dev Auth Rev, 6.00%, 16,417
issued 10/78, matures 9/1/2000
Cleveland Ohio Ser A Rfdg AMBAC 112,564
6.30% issued 5/91, matures 10/1/2001
TOTAL 427,820
Mutual Funds fJT^
Fidelity Advisor Ecfuity 33,537
Fidelity Advisor Income 32,678
Merrill Lynch Int'l Equity Fund Class B 25,714
Merrill Lynch Global Allocation Fund Class B 24,613
Merrill Lynch Developing Capital Markets Fund 10,593
Merrill Lynch Latin America Fund Class B 11,080
ML Capital Fund Class B 33,818
TOTAL 172,033
Mutual Funds (James SEP)
Merrill Lynch Fund for Tomorrow Class B 7,366
Thompson Opportunity Fund Class B 5,313
Merrill Lynch Basic Value Fund Class B 5,292
TOTAL 17,971
207
Mutual Funds (Eileen IRA)
Merrill Lynch Fund for Tomorrow Class B
Thompson Opportunity Fund Class B
TOTAL
CMA Ohio Municipal Money Fund
Real E state Mortgages Payable
cno^®^"^""-'-^^'^ condominium located ai:
608 Broad Avenue South
Naples, Florida
current balance $ 38,500
3,849
3,095
6,944
11,871
208
NET-WORTH
Maureen Carr
PioviJc : ccniy'.c'.;, cuncr.i TLii.'^ciil r.ct worJi sL<i;mcnl which i'^rrjics Lt ccLiiJ
ai) iiicM (Lncl'JcUns \)is± zccounii. real csuic, securities, trusLs, invcsQmcnLs, £-'■,0 ct>,tr fLninciaJ
holdlnss) tU lizbiiidcs (L'-.cljdinB dcbis, rnonEsscs, loinj, zjd oOi:r fLTijicii] cbligicons) of
youJxL', youi spouse, 2.id oLhcr immidiii: members of you: hcuschold
Cijh en ts-nd l:i^ in buri:
U.S. Covt.-^;=«nl »cr>in: = -
Llr^ x.-,;:Hdii-»di j;tirf-jle
■Uniitid tcciri:ici-tdi yciidjlc
A:=^i:.-.'j t-ii noui rejc'ivibic:
D-Jc torr. idi'Jvti L-d t-it-.ii
r>.'f tom o-*^t.'»
Do-^Vc^Jl
F.cJ cjLlI: o»-ti-tid !C>-.£-;
;tJ f.u;; n-C.-^Jri: I-:-.vi;-:
At.;! L-.d clhc; p-.ns::; J.-vr-^^y
Ci;SviJ:>:-U.'« 1-. ;■-•-- -
CO i:
rc-.i Mitia
co.vrrscE!-'! ix'^a-rms
(_
> T,
Ulit! C- cn^i^'-:
CIlL-
LLKsasriLi
67
800
00
KoUj fwyiblc lA tinjc - tirw''cd
KoUj piyi^U td ti.'Oa -c/u cc-.L~t^
>to'-:i piyi^U 13 rtjiiivo
I ^ Ko1:j Fiytbls 13 olijc-;
At^ccunli U^i tOii <5-j3
I Unpijd L'-ior-.t uj;
O^^- lL'-.:^(i Ul i.'vi inUmt
121500 00
CKf— il c-.crjuij and oLS^r Uerj p:v.
CX>,i: d:i<i-;!;rdi::
I Tclj Uii;::!;:!
Kc. Yi'c.-i
80 300
'00
8fl.
laod 00 lj!iiH±rii-t:l2!L:
I 80 boo ;00
CEKXSAL rvFCRM.'.TION
v:}() no
A.'t you dcrciii.-l ir, i,-,y lulu c: l::ti
Hive ycM r<c- li''.j: li.-ir\;r<c-.? '^•°
1
209
Maureen M. Carr
Mutual Funds Mkt. Value
Government Income Securities Inc. 30,837
Thompson Opportunity Fund Class B 24,223
TOTAL 55,060
CMA Money Fund 12,710
210
NET~WORTH
Megan Carr
Provide z cc:-o!c'.c, cuircr.i TL-.i-Tcial ml wonh sLiicmcnl which iLcrr^iics Lt ccHi)
?JJ aisr.15 (Inci'-'ding bi-^i zccoun'^, rti] ts'Ji'c, stcuricics, CrosLs, LivcstiTicnLs, zi\6 oihitr fLi^uiciil
holdings) Ell liabUJDcs ('ir.cl-jdinE dcbu. monsascs, loins, lad oih-r fLTi^nci^l cblisacons) of
yo-dn-clf, youx spouse, End oihcr Ltuntdijii memb:n of your household.
/.SSITS
Zi^>i en tA.1- -i4 i^ bwOti
U.S. Covt.-::ZJer.l lecw.:
Lir.=i tcicHo'u-wld jitirfuOc
U.-jJilid ncirilici--tdi Ki:i;!c
n'j L-.d nout rMeivjo;c:
I>J« £r:r-. ich'jvci i-'d titj-.d;
I\-t tr- c--'i^->
r<u^.^..i
F.cii cJl^ c--td-.i-;
7.1.0 i -.-.^'.-. rr-C.-.-z.^ i:;:;-.v:--.:
CSt, vi!>t-l;.'c i-.:-.:
Tc— 1 /■J.W.J
I m;n TTTT.;
10
!OO0
00
81
200
00
NoUu p^yiilc Lo ti.-LC - iicrec
It'olu pijiblt Is ti.-\fa -CA3 ccM.*id
h'oV;! piyi^U U) rtjiiva
KoUJ paytble l3 ol^t.1
/.:xo'i.-iU Uni bDlj du5
Unpiid lr»i3r-.c Ux
O-Si.- i:.-.,:^ii uj; i.-,5 L-'.;.-:-.',
r.cJ till'.: Kcr^iju pty>i;c-ii£
C>.>^: d;^^-:u:7i.^:
12| 50
(j OC
'T
103
700i
00
7c^ liiliiijti
Kf. v.'c.--:
fl_aa
T:t! liiilliiii ir>i f>:l i-cri
GENTSja rvr C^^M-^TION
I 103 |.700 |00
^;) no
C- bii:: c-c:r.tK:L:
' L:;0 Cliir
A.-: ye.; <?.; fcii.-.! l-. ^-y r.;!'.; c: i::i^
K-.ve ycu OC- U.v_.: li.-irj;<r,? "°
C S : •;-:-
211
Megan A. Carr
Mutual Funds Mkt. Value
Government Income Securities Inc. 19,866
Thompson Opportunity Fund Class B 27,651
Thompson Target Fund 29,974
TOTAL 7744915,255
CBA Money Fund 3,754
212
NETTTORTH
Darrah Carr
Prcvidc 2 co:p.ph:z, currcr.i fuiincijJ ntl wcrOi sLiicmcni which i'^rrji^s Ln cc'^
Eil lisr.Ls (Lncl'jdlng bi/ii icccur.-^, rtil csLiii, stcuridcs, trusu, invcstmcni^, cs,t c'J-.cr fLnyiciiJ
r,c;di-igs) ell lizbllidcs ('Locljclins dcbj, mongascs, loinj, lad oihtr fLnir.ciii cblijiuons) of
youn^lT, your ypo-osc, a.nd other immtdjiii m:mbtrs of your household.
ass:
U.^5ILJTiL;
C:.:h en hir.d S-'i^ in bu-JLJ
U.S. Gov£.':i=>"il ieiV.-;; = -
. Ll.''.c::i ^cJKL':Dci-^4id ichrdjlc
10 Uo-q 00
06
Kolu p*yii>?c lo bAAJs - ii^nrcti
KoLu piyL^ilc l3 b-i.-iki-v.'ucc-jL.*;^
500 00 KoU! piyi^b L> nlidvc
• U.-JJlU/S KC-.ri;ic>--tA! xitdj!;
ArccwT'j t.-.d ncL£i rcciiivjoic:
I>jc frsr-, jcli'Jvcs xr.d LSc*.—
D'j: £r;-~ o,.=.'i
I>oi.':-J-l
r.eJ c:li.; <:--.-^-^ii sc>.-.i:'.=
^tJ eiUL: irc.-'.rilii lEsivi:.;
/.•;.;: I.-C c'.-.e: pif^c::. fr.
C1.--1 M.'.>:-lL'e i.-.:u.-i.-i:
OOm: i^:--
7cU) A.'J^U
1 , Ko:;: psyib'.c t) olicT
>.:^'inU t.-:! bOil d-j
Ur.pijd L'.ia:nt Ixx
ChSc- L-.iiid Ui i.->i i/^U.'r;t
cov7T.'ce;kt u-'^arms
2 000
98
00
y.tij ciU'j rrcrj;ijt5 piyjilc-:^
x-'.tJuJo
C^.trc^ (ncr;i£ej xid olVr lii.-j piv.
0^£; (Ui-:j-;unil
50d 00
^J Li^^L!!
?.-c: Vc:i
I 98 I 500
_op
'00
7c'.i! L':ilIi-_- «.-vJ ncl ---r
I 98 I 500 too
CENTRAL r^TCRM.'i.TlON
: t=ic:si--, co.T.rj;:: cr rji.-i^".2.-
,!.-t :.r/ i;^'j p!c!j-u:? (Adi k
>j£) no
L- biit: c- cc-Sic'ji
l.c:i.'CliL-J
L:i=rj7 no
£ :-r z-<-iz\i-:::Ui^^l.^-zy ^^
V.--1C y.i c-fC li'-: ti.-:cvv:~' '"■°
1_J— L
213
Eileen M. Carr, Custodian
Darrah E. Carr
Mutual Funds Mkt. Value
Government Income Securities Inc. 16,973
Thompson Opportunity Fund Class B 33,776
Thompson Target Fund 29,974
TOTAL 80,723
CBA Money Fund 5,754
214
NET-V«ORTH
Caitlin Carr .
Provide 2 complc'.c, cuircr.l ru-.-iciil nal worOi sLiiimcnl which i'xrrJics b dtlii!
rJ\ eisr.is (unci 'J ding birJ: iccounu, rta) tsuie, stcuridcs, trusls, uivcsoncnii, Jjid ol^,c^ fu-.jjicijJ
holdings) eH liabiiiocs (L-.d-jdi/ig ckbu, mongascs, loins, md oihtr finincizj cbbgjcons) of
YOun<L'', your rDoust, ^-^6 oihcr Lnvnciiiii mcmbtrs of you,' hcuschold.
SSITS
lijh en tJ-"i^ ~fi in b^"j-:
U.S. Gcvtriirjcnl icc\;r.-ti--*^i-
Llr^ tMJ^HozLj-tii jchrtlclr
Urj4'.-J K:ciri:ici--iid ycicdj'^
; tnd noui nccivioi::
D-Jt t=n-. jdi'Jrt: Lri tii.-.t:
D-JC fcvm o'J-.i:i
I>;v;;:f-1
F.ti! c:Ll;c c--T.eJ--t-:-
?.tJ c-.U'i irc-^iri: i = ::vj.-.:
AtL:; L-i cL-.er pir-io:;. prrr-:
Ci;Svi;;^-U/c {^sc/;.^-
o:-.:
7oUl A-<i!Lj
covn?-;cENT Liksiimzs
/_s c=d=::^', cc.T.Xk't.' cr r.-i
Cl; Uiic! c- Knti:^
'_;rj C!iL-rs
LLKSaJTIL:
10 !000!
00
83
900100
Nolr.j p*ytb!e Ui b^-Jc - u-r,:/cd
KoLij piyiile to ti.'xi^ -v/u eo^-t^
>iO'j:i piyi^U L3 rt-iavc
1
Nolc: piytb!: 13 olitr:
/.tco'X-iU t.id tUla d'ja
1 Unpiid iftZJC-i Ui
I OJ-,'-- C'.pjjd Ui l.-,i L-^l
F.ti3 ciU'^ n=-^ijM piyii:c-idc
Ch!j::-J c-.r
s.-^(i olV: Ijirj pi
O^r.; cU^^j-lUru2^:
5O0 00
94
ToLJ liiiUJ:;;!
I J.'c'.Vcri
4001 00 1 ■J''^'^ liiiJi:-- l-J ncl --xr,i
CEKXRAJLI>7CR-M.'lT10N
v:!;) no
I ! Kive yc>- r'c; liV_.; t i.-ir-,' ;< c-^ ' " °
215
Eileen M. Carr, Custodian
Caitlin E. Carr
Mutual Funds Mkt. Value
Government Income Securities, Inc. 15,987
Thompson Opportunity Fund Class B 19,593
Thompson Target Fund 43,041
TOTAL 78,621
CBA Money Fund 5,222
216
III, GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
For more than three years I was a volunteer attorney working
with a legal aid program developed and implemented by the
Church Federation of Greater Chicago. This work, which I began
while employed with the law firm, encouraged me to become
employed as a legal aid attorney with the Cc3ok County Legal
Assistance Foundation. After working for about a year in an
office in Englewood on Chicago's South Side, I sat up and
helped to staff an office sponsored by our parish in Rogers
Park, in Northeast Chicago.
While a law professor at the University of Toledo, my
principal areas of responsibility were the Law School's
criminal law clinical programs. In addition to a defender and
prosecutor component, I developed a consumer protection
clinical program. This program enhanced considerably the
ability of the City of Toledo's Consumer Protection Agency to
enforce ordinances and statutes intended to protect consumers.
In addition, I implemented a program through the University's
financial aid office whereby financially needy students were
placed in law-related positions with governmental agencies and
offices in our area. This program enabled many students who
either would not have received financial aid or who would not
have received law-related experience to gain those benefits.
I was one of the founders in 1974 of the Toledo Area Center
for the Prevention of Child Abuse and Neglect, which
ultimately became the Fcimily and Child Abuse Prevention
Center. I served on that board until 1981. In addition, I
served on the Lucas County Mental Health Board, Lucas County
Children Services Board, and Lucas County Childrens Trust
Fund. The time expended on these activities was, I estimate,
about six hours monthly as a general rule, and more on
occasion.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
tu hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
39
217
which discriminates — through either formal membership
requirements or the practical implementation of membership
policies? If so, list, with dates of membership. What have
you done to try to change these policies?
I belong to no organizations that discriminate.
While a college student, I was a member of a fraternity that
denied admission to a Jewish student on the basis of the
refusal of a single member to vote for his admission. I, along
with all the other members, wanted him to become a member,
argued unsuccessfully against that refusal, and voted in favor
of his admission.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to
your nomination and interviews in which you participated) .
The Toledo Bar Association interviewed candidates for the
federal bench in May, 1993, and I was recommended for
appointment .
I was contacted by the Bar Association, and submitted a resume
and was scheduled for an interview. That was the extent of the
Bar Association's process.
My efforts to secure a nomination began in late Summer, 1993,
when I expressed my desire to be nominated and asked the
support of local Democratic political leaders. Thereafter I
informed some attorneys of my interest. In addition, I spoke
with several other persons in Toledo and elsewhere about my
desire to be nominated. When asked by anyone with whom I spoke
as to what they could do, I told them that they could write
letters (without sending copies to me) to our Senators and
otherwise speak favorably about me and my qualifications. As
a result of these efforts and, I believe, my performance as a
Magistrate Judge, I was interviewed by senatorial staff
members and our Senators. After they recommended that I be
nominated, I was interviewed by representatives of the Office
of Policy Development of the Justice Department, investigated
by the F.B.I. , and interviewed by a representative of the
American Bar Association.
40
218
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or question? If so, please explain fully.
No
Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of 'government .
Some of the characteristics of this "judicial activism" have
been said to include;
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the plaintiff
as a vehicle for the imposition of far-reaching
orders extending to broad classes of individuals;
c. A tendency by the judiciary to impose broad
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
I believe that judicial power should be exercised with
restraint, but that it should also be exercised effectively
when required by the Constitution and laws of the United
States .
A judge must give the parties a full and fair hearing, seek to
ascertain the facts from the evidence, and apply the law as
best it can be discerned. A Judge is to implement the law,
and, in doing so, to refrain from imposing personal
preferences or political or policy choices.
41
219
A judge's primary responsibility is not merely to decide
disputes, but to end them. He or she is most likely to
accomplish that objective by maintaining not only the
appearance but preserving the actuality of impartiality,
trying to make clear to the litigants and their counsel that
their case is as important to him or her as it is to them, and
sending the parties from the courtroom with a sense that they
could receive no more fair or attentive hearing anywhere else.
If the judge is able to do so, the unsuccessful litigant is
more likely to accept the outcome, leave off the distraction
and disruption of litigation, and begin to restore his or her
life to more useful and productive pursuits .
Judicial authority is most appropriately viewed as
restrictive, rather than aggressive. Correction of
constitutional deficiency is generally limited to directing
that such deficiency be remedied by those .responsible for
causing the constitutional problem. The executive and
legislative branches are primarily responsible for
accomplishing compliance with constitutional and legal
obligations. The role of the judiciary is in general
supplementary — to assist by prohibiting, when such is
necessary — but not to usurp or supplant the authority and
responsibility of the other branches of government.
My view that judicial power is to be exercised with restraint
reflects my understanding of the duty of the judiciary under
the Constitution. It reflects as well a perception that
excessive judicial entanglement in the activities of other
institutions impairs not only those institutions, but can
adversely affect the judiciary as well. Such adverse effects
include diversion of scarce judicial resources from other
matters for which the judiciary is responsible and a
diminution of public respect for the judiciary as a neutral
arbiter of disputes.
42
220
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
CLARENCE COOPER
Address: List current place of residence and office
address (es) .
Office Address: Georgia Court of Appeals
4 08 State Judicial Building
Atlanta, Georgia 30334
Home Address: 3203 Kingsdale Drive, S.W.
Atlanta, Georgia 30311
Date and place of birth.
May 5, 1942; Decatur (DeKalb County) Georgia
Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and
business address (es).
Date of Marriage: November 24, 1973
Wife's Maiden Name: Shirley Mae Elder
Occupation: Food Services Coordinator (Nutritionist)
School Nutrition Program
Fulton County School System
5270 Northfield Blvd.
College Park, Georgia 30349
Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Harvard University
John F. Kennedy School of Government
Cambridge, Massachusetts
Degree: Master's In Public Administration
Year: June 1978
Massachusetts Institute of Technology
Community Fellow Program
Department of Urban Studies & Planning
Degree: Diploma
Year: June 1978
221
National College of the State Judiciary
School for Judges
Reno, Nevada
Degree: Diploma
Year: 1977 & 1981
Leadership Georgia
Leadership Training Program
Atlanta, Georgia
Degree: Certificate
Year: 1976
Leadership Atlanta
Leadership Training Program
Atlanta, Georgia
Degree: Certificate
Year: 1975
Howard University School of Law
Washington, D.C. 20059
Dates attended: 1964 - 1965
Reason for leaving: Transferred to Emory University to
integrate its law school in 1965
Emory University School of Law
1380 Oxford Rd. , N.E.
Atlanta, Georgia 30322
Degree: Juris Doctor (1967)
Year: 1965 - 1967
Clark College (N/K/A Clark Atlanta University)
James P. Brawley & Fair
Atlanta, Georgia 30314
Degree : B . A . H i story
Year: 1960-1964
Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
From 12/9/85 to 12/2/88, I served on the board of
directors of the International Friendship Force, which is
a non-profit organization that promotes peace and good will
among people of the world through cultural exchanges which
allow foreigners and Americans to visit with one another as
hosts and guests in their respective countries.
222
In 1990, I becaine a member of the board of directors of the
Atlanta Convention & Visitors Bureau, a non-profit organiza-
tion whose primary responsibility is to market the City of
Atlanta in such a way that tourists and conventions are
attracted to the City. Because I am a sitting judge, my
participation is limited and I do not participate in any
fundraising activities, nor do I allow my name to be used
in connection with any marketing strategy.
I serve on the board of directors of the Metropolitan
Atlanta Community Foundation, having been appointed to the
board in 1990. This is a philanthropic organization whose
primary objective is to fund community-based programs that
will address various community needs and have a positive
impact on the social and economic conditions of a particular
community. Through small grants, we are able to promote the
general welfare of many neighborhoods and communities.
In 1993, I agreed to serve on the board of directors of the
Georgia Health Decisions, which is a non-profit organization
whose board represents a cross-section of the state on
various health issues. This organization is now in the
process of gathering data on how Georgians view their health
care system and how Georgians prioritize their health needs.
Fulltime Employment ;
Georgia Court of Appeals 1990-Present
Fulton Superior Court 1980-1990
The City of Atlanta Municipal Court 1975-1980
Fulton County District Attorney's Office 1968-1975
Atlanta Legal Aid Society 1967-1968
7. Military Service: Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
Yes
U.S. Army
1968 to 1970
E-6; Serial # US 53 457 468
Honorable Discharge
8. Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Omega Man of the Year Award, 1991 (Highest award given by
Omega Psi Phi Fraternity)
223
Al Thompson Award for Community Service, 100% Wrong Club,
1989
Thurgood Marshall Award, Outstanding Jurist, NAACP, 1988
Community Fellows Program, M.I.T., 1978
One of the Most Outstanding Men of America, 1974
Bronze Star, U.S. Army, 1970 (for tour of duty in Vietnam)
Certificate (or letter) of Commendation, U.S. Army, 1968
National Defense Service Medal, U.S. Army
Good Conduct Medal, U.S. Army
Vietnam Service Medal, U.S. Army
Vietnam Company Medal, U.S. Army
Man of the Year, Clark College, 1982
Most Studious, Clark College, 1964
Bicentennial Panel, 1987
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Lawyers Club of Atlanta State Bar of Georgia
Federal Bar Association Atlanta Bar Association
National Bar Association Gate City Bar Association
American Bar Association Old Warhorse Lawyer's Club
Supreme Court Commission on
Racial & Ethnic Bias in the
Court System
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
Butler Street Y.M.C.A.
Atlanta Urban League
The Friendship Force International
The Atlanta Branch NAACP (Active in Lobbying)
The Atlanta Convention & Visitors Bureau
Metropolitan Atlanta Community Foundation
Georgia Alliance for Children (Active in Lobbying)
Omega Psi Phi Fraternity
224
Kappa Boule (Sigma Pi Phi Fraternity)
100 Black Men of Atlanta
Georgia Health Decisions
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Superior Courts of Georgia, 1967
State Courts of Georgia, 1967
Georgia Court of Appeals, 1967
Georgia Supreme Court, 1967
U. S. District Court of the Northern District of
Georgia, 1967
12. Published Writings ; List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
"The Judiciary and Its Budget," Massachusetts Institute
of Technology, Community Fellows Program, 1978
(See Attachment lA)
The Atlanta Fulton County Juvenile Justice Commission
Report, 1986 (I chaired the commission and was responsible
for the content of the report) (See Attachment IB)
"A Judge ' s Remarks to New Bar Admittees , " YLS News ,
February 1989, pp. 2 and 3. (See Attachment IC)
Note: Z have not given any speeches or written any articles
involving constitutional law or legal policy.
13. Health : What is the present state of your health? List the
date of your last physical examination.
My health is good.
June, 1993 (date of last physical)
14. Judicial Office : State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
225
city of Atlanta Municipal Court/ 1975-80 (appointed)
The City Municipal Court of the City of Atlanta has
jurisdiction over all cases involving the violation
of municipal ordinances and also has jurisdiction to hold
preliminary hearings.
Fulton Superior Court/ 1980-1990 (elected)
The Superior Courts of Georgia exercise original, exclusive
and/or concurrent jurisdiction in all civil and criminal
cases granted to them by the constitution and laws of
Georgia. They also exercise the power of a court of equity
and have appellate jurisdiction in some instances.
Georgia Court of Appeals/ 1990-Present
The Court of Appeals is a court of review and exercises
appellate and certiorari jurisdiction in all cases not
reserved to the Supreme Court or conferred on other
courts by law. The decisions of the Court of Appeals
insofar as not in conflict with those of the Supreme
Court shall bind all courts except the Supreme Court
as precedents.
*The following percentages reflect my trial court experience as
well as my appellate court experience:
What percentage of your litigation was:
Civil 70%
Criminal 30%
PERCENTAGE OF CASES PRESIDED OVER
Number Role
Jury Trials 200 (est.) (62.5%) Trial Judge
Bench Trials 120 (est.) (37.5%) Trial Judge
Appeals Court * 1,080 (est.) Appellate Judge
♦Opinions
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written: (If published, give name of case and citations)
(2) a short summary of and citations for all appellate
opinions where your decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
226
significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions.
Note; See Attachment 2A for citations for ten most
significant opinions written and Attachment 2B. a short summary
and citations for opinions reversed or where judgment was
affirmed with significant criticism. As to (3) . I have not,
during my tenure on the Georgia Court of Appeals, handled any
federal or constitutional issues inasmuch as these issues are
reserved exclusively for the Georgia Supreme Court.
16. Public Office ; State (chronologically) any public office
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
I have held no other public office, other than judicial.
In 1973, I was an unsuccessful candidate for seat on the
Fulton County Commission.
17. Legal Career ; Note: See explanation below
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
2. whether you practiced alone, and if so,
the addresses and dates;
3. the dates, names and addresses of law firms
or offices, companies or governmental
agencies with which you have been connected,
and the nature of your connection with each;
EXPLANATION: Chronological description of law practice
experience
After finishing law school, I was actively engaged in
the practice of law between 1967 and 1975, and occupied the
following positions:
Assistant District Attorney
Fulton County (1968 -1975)
227
Fulton County District Attorney's Office
13 6 Pryor Street, S.W.
Atlanta, Georgia 30303
While employed as an assistant district attorney, I was
drafted into the U.S. Army and was subsequently granted a
military leave by the District Attorney to fulfill my
military obligation.
Law Clerk, JAGC Office
U.S. Army (1968-1970)
Department of Army
Washington, D.C.
While serving my country as a GI in Vietnam it was my job to
process claims for and against the U.S. Army.
Attorney
Atlanta Legal Aid Society (1967)
151 Spring Street
Atlanta, Georgia 30335
During my employment with the Atlanta Legal Aid Society,
I represented poor people who could not afford to hire
private counsel to represent them in litigated civil
disputes.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
As an Assistant District Attorney, I was in charge
of two departments: Automobile Condemnations and
Uniform Reciprocal Enforcement of Child Support.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
I represented poor people as a legal aid attorney.
As an Assistant District Attorney, I represented
the State of Georgia. (Prior to becoming a judge,
I had always worked in the public sector.)
c. 1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varied, describe each such
variance, giving dates.
I appeared in court from time-to-time in my
capacity as both a prosecutor (1968-75) and an
attorney for legal aid (1967) representing
indigents.
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228
2. What percentage of these appearances was in:
(a) FEDERAL COURT 1%
(b) STATE COURTS 96%
(c) OTHER COURTS (Juvenile Court) 3%
3. What percentage of your litigation was:
(a) civil; 95%
(b) criminal. 5%
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
CRIMINAL - Approx. 15 cases (sole counsel)
CIVIL - Approx. 15 cases (sole counsel)
5. What percentage of these trials was:
(a) jury; 1%
(b) non-jury. 99%
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone numbers
of co-counsel and of principal counsel for each of the
other parties.
(See Attachment 3)
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
229
In the case of Charlotte Buckner. individually and as
natural mother of Tameka Buckner. deceased and Kina
Buckner. deceased v. Brown Transport (companion cases:
Fulton Superior Court civil action nos. D-29931,
D-29932, and D-29933) a wrongful death action, I was
instrumental in getting the parties to settle a complicated
case (involving the application of Alabama law) that would
have taken quite a while to try. My involvement in the case
came at the request of counsel, who felt too much was at
stake for both parties. The case settled for four million
dollars.
I currently co-chair the Georgia Supreme Court Commission on
Racial & Ethnic Bias in the Court System. The commission is
now conducting public hearings throughout the state in an
effort to ascertain whether or not the problem (be it actual
or perceptual) is systemic in nature. After the commission
concludes its fact-finding mission, it will submit a written
report to the Supreme Court of Georgia with recommendations.
10
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230
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements
you have made to be compensated in the future for any
financial or business interest.
While serving as a Superior Court Judge in Fulton County,
I participated in the county's deferred compensation
plan for several years. My participation in the plan
automatically terminated when I was appointed to fill a
vacancy on the Georgia Court of Appeals. I allowed the
sum of money that had been deferred to remain with the
investor until the year 2002, at which time the amount
deferred will be returned to me in periodic monthly
payments over a period of time.
As an Appellate Court Judge, I now particpate in the
State of Georgia's deferred compensation plan. My
participation will terminate when I leave the Georgia Court
of Appeals for the federal bench. At that time I plan
to make the same arrangements with the State investor
as I did with the County investor. That is to say,
I will allow whatever sum has accumulated to remain
with the investor until the year 2002.
I also own shares of stock in the Coca Cola Company,
Toys R Us, Home Depot and CEMAX. Should cases
be assigned to me involving any or all of the above
companies, I shall make it known to the parties an
recuse myself from presiding over such cases. In the
alternative I may decide to sell my stock.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements
that are likely to present potential conf licts-of-
interest during your initial service in the position
to which you have been nominated.
Should cases be assigned to my division of court involving
any or all of the aforementioned companies, I shall make
it known to the parties and ask to be recused from the
case. I intend to follow the guidelines of the Code
of Judicial Conduct as it relates to conflicts.
11
231
I can foresee the possibility of one of the companies in
' which I have a financial interest becoming a party to a
ivil lawsuit assigned to my division of court; and if
such were to occur, I would resolve the conflict or
potential conflict in the manner described above.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be subtituted here.)
See attached Financial Disclosure Report.
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for)
(See Attachment 4)
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the ampaign, your title and responsibilities.
No, I have never held a position nor played a role in
a political campaign. However, while in law school, I
did distribute campaign literature for Representative
William Alexander, who was seeking re-election to his
House seat in the Georgia General Assembly in 1966.
Mr. Alexander is now a Fulton Superior Court judge.
My role was so minor that I doubt if he will remember.
12
232
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to particiapte in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
As a judge, I cannot engage in pro bono legal work.
However, I do represent the Georgia Court of Appeals
on the State Bar ' s Pro Bono Committee and have given
speeches encouraging lawyers to become more invovled
in pro bono cases.
I also serve on the Advisory Committee for the
International Friendship Force. The Friendship Force
promotes international exchanges between and among people
from different parts of the world. (One might say that the
Friendship Force serves as an unofficial ambassador for
this country.)
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to any organization which discriminates — through either
formal membership requirements or the practical imple-
mentation of membership policies? If so, list, with
dates of membership. What have you done to try to
change these policies?
No
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which
led to your nomination and interviews in which you
participated) .
Yes
Shortly after President Clinton took office, I was told that
two federal district court judges in Atlanta, Marvin Shoob
and Richard Freeman, had taken Senior Judges status, thereby
creating two judicial vacancies that were to be filled by
presidential appointment.
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233
Because I had been a judge for over 17 years and had always
wanted to become a federal judge, I immediately wrote
Senator Sam Nunn and expressed a desire to fill one of the
two vacancies in the Atlanta area. Senator Nunn, in a
letter to me, stated that a judicial screening committee
would be created to interview applicants who were
interested in federal judgeships and that the screening
committee would contact me. After the committee was
created, the committee, in response to my letter to Senator
Nunn, sent me a questionnaire to be executed and returned to
Senator Nunn and the members of the screening committee.
I executed the questionnaire and mailed copies of my
responses to Senator Nunn and the nine member Judicial
Screening Committee.
Several weeks later, I was contacted by a member of the
judicial screening committee and told when and where to
report for my interview with the committee. I was
interviewed by the nine-member committee for approximately
one hour. My interview was thorough but friendly, and each
member questioned me relative to my qualifications to serve
as a federal district court judge.
A few weeks after my initial interview, I received a
telephone call from an aide in Senator Nunn's office to
schedule a personal confidential interview. My interveiw
with Senator Nunn lasted at least 4 5 minutes to and an hour.
We discussed my qualifications, my views on judicial
activism and a host of other law related issues. At the end
of the interview Senator Nunn told me that I would be
hearing from his office soon.
Several weeks following my interview with Senator Nunn,
he telephoned me at my residence and told me that he had
decided to recommend me for appointment to fill one of
the two vacancies on the federal district court bench in
Atlanta and that he wanted my permission to recommend
my name to the President of the United States. I, of
course, was elated and gladly told him he had my
permission to refer my name to the President.
Since my interview with Senator Nunn, I have undergone
background investigations conducted by the Department of
Justice, the Federal Bureau of Investigation and the
American Bar Association. Besides being personally
interviewed, I have executed questionnaires and submitted
documents pertinent to the information sought by each of
these agencies.
4 . Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
14
234
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No
5. Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the perogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism: have
been said to include:
a. A tendency by the judiciary toward problem solving
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extended to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions int he manner of an administrator
with continuing oversight responsibilities.
If one were to define the role of a judge in
our system of government, one would first
refer to the concept of separation of powers
in the United States Constitution. This
concept not only clearly defines the role of
the judiciary, but it also vividly defines
what roles the other two branches of the
government are to play. The judicial branch
in conjunction with the legislative and
executive branches of our government play a
vital role in the administration of justice.
15
235
Quite simply, a judge must interpret and
apply the laws enacted by the legislative
branch. A judge should not use his/her
judicial position to enact laws since the
enactment of laws is exclusively reserved to
another branch of government. Nor should a
judge execute laws since that function is
exclusively reposed in the executive branch
of government. Where the law is not clear, a
judge should seek to determine the
legislative intent as to the particular area
of the law involved and guard against
imposing his or her own personal view.
Therefore, the concept of separation of
powers as well as our system of checks and
balances clearly delineates the respective
roles of each branch of government. These
roles should not overlap but complement one
another.
In short, it is the judge's responsibility to
ensure not only a fair and impartial hearing,
but also a hearing in a dignified, orderly
manner.
Once a judge clearly understands his/her role
in the administration of justice, he/she must
then focus on the legal issue (s) in cases
before him/her. Before he/she can act in a
judicial manner, he/she must ascertain
whether or not the parties have standing and
that the legal issue is ripe for resolution.
He/she must then ascertain whether or not
there exists precedent to guide him/her in
his/her decision. Once he/she has done this,
he/she must render a decision based upon the
law.
16
236
ATTACHMENT 2A
(In response to question 15)
CITATIONS TO TEN MOST SIGNIFICANT CASES
1. Macon Telegraph Publishing Co. v. Tatuin . 208 Ga. App. Ill, 430
S.E.2d 18 (1993)
2. J & A Pipeline Co. v. DeKalb County . 208 Ga. App. 123, 430 S.E.2d
13 (1993)
3. Dorsev V. State . 206 Ga. App. 709, 426 S.E.2d 224 (1992)
4. Weeks V. State . 206 Ga. App. 431, 425 S.E.2d 421 (1992)
5. Circle H Development. Inc. v. Woodstock . 206 Ga. App. 473, 425 S.E.
2d 891 (1992)
6. Restina v. Crawford . 205 Ga. App. 887, 424 S.E. 2d 79 (1992)
7. Shepard v. Federal Land Bank of Columbia . 205 Ga. App. 254, 421
S.E. 2d 763 (1992)
8. Agan v. State . 203 Ga. App. 363, 417 S.E. 2d 156 (1992)
9. In re Jones . 198 Ga. App. 228, 401 S.E. 2d 278 (1990)
10. Mapp V. State . 197 Ga. App. 7, 397 S.E. 2d 476 (1990)
237
ATTAC«MENT 2 B
(In response to question 15)
CASES REVERSED OR AFFIRMED WITH SIGNIFICANT CRITICISM
1. Fountain v. Atlanta Casualty Co. . 200 Ga. App. 643, 409 S.E.2d 239
(1991) , reversed in Atlanta Casualty Co. v. Fountain . 262 Ga. 16, 413
S.E.2d 450 (1992) . ^
The Supreme Court reversed our opinion holding that the insurance
company's declaratory judgment action was inappropriate because the
petition for declaratory judgment did not disclose why the insurance
company needed direction from the court. The Supreme Court reasoned
that the insurance company had adequately demonstrated a need for a
legal judgment that would control its future action.
2. CSX Transportation. Inc. v. Levant . 200 Ga. App. 856, 410 S.E.2d
299 (1991) , reversed in CSX Transportation. Inc. v. Levant . 262 Ga. 313,
417 S.E.2d 320 (1992) .
In this appeal of a personal injury action brought under the
Federal Employer's Liability Act (FELA) , we upheld the jury's award of
one million dollars to the plaintiff. The Supreme Court reversed,
finding that the jury's award was excessive and that the jury must have
been awarding punitive damages which are not allowed in FELA actions.
3. Nelson V. Felton Pearson Co. . 195 Ga. App. 92, 392 S.E.2d 274
(1990) , reversed in Felton Pearson Co. v. Nelson . 260 Ga. 513, 397
S.E.2d 431) (1990) .
The Supreme Court reversed our construction of OCGA 34-9-105 (b) ,
which sets forth the procedure for appealing a decision of the State
238
Board of Worker's Compensation. The Supreme Court construed the statute
differently, noting that its construction was consistent with the policy
of the statute in promoting a speedy resolution of worker's compensation
cases .
4. Baxlev Veneer & Clete Co. v. Maddox . 198 Ga. App. 235, 401 S.E.2d
282 (1990) , reversed in Baxlev Veneer & Clete Co. v. Maddox . 261 Ga.
309, 404 8.E.2d 554 (1991).
On appeal, we held that there was evidence from which a jury
could determine that there had been part performance of an oral contract
such as to remove the contract from the operation of the statute of
frauds. Consequently, we affirmed the trial court's denial of
defendant's motion for directed verdict. The Supreme Court disagreed
and reversed, finding that the evidence was not sufficient to reach the
jury.
5. Bliqe V. State . 205 Ga. App. 133, 421 S.E. 2d 547 (1992), reversed
in Bliqe v. State . 263 Ga. 244, 430 S.E. 2d 761 (1993).
The Supreme Court affirmed our decision which upheld the
defendant's conviction. However, the Supreme Court disapproved our
decision to the extent that it suggested that the State could comment
on the defendant's failure to call an expert witness without laying the
proper foundation.
6. Findley v. Davis et al. . 202 Ga. App. 332, 414 S.E. 2d 317 (1991),
reversed in Davis et al. v. Findley . 262 Ga. 612, 422 S.E. 2d 859 (1992).
239
On appeal, we held that plaintiff's allegation that defendant
charged excessive fees for legal services in violation of the Code of
Professional Responsibility was sufficient to sustain a claim for legal
malpractice. The Supreme Court reversed, finding that a violation of
the Code of Professional Responsibility alone could not establish a
basis for a legal malpractice action.
7. Corim. Inc. v. Belvin et al. . 202 Ga. App. 396, 414 S.E.2d 491
(1991) , reversed in Crossroads Bank of Ga. et al. v. Corim. Inc. . 262
Ga. 364, 418 S.E.Zd 601 (1992).
The Supreme Court reversed our determination that a properly
recorded judgment lien had priority over a perfected purchase money
security interest. The Supreme Court construed two ambiguous statutes
differently, holding that the general scheme of the UCC reflected a
preference for purchase money security interests and that a judgment
lienholder should not be equated with a lien creditor.
8. Hummel v. Gainesville Radiology Group. P. C. . 205 Ga. App. 157, 421
S.E.2d 333 (1992), reversed in Gainesville Radiolocrv Group. P. C. v.
Hummel . 263 Ga. 91, 428 8.E.2d 786 (1993).
The Supreme Court reversed our determination that a grossly
inattentive juror's failure to answer a material question during voir
dire was tantamount to giving an untruthful answer and could not be
considered harmless error. The Supreme Court held that no new trials
will be granted under such circumstances unless the movant can
demonstrate that a juror failed to honestly answer a material question
240
on voir dire and that a correct response would have provided a valid
basis for a challenge for cause.
9. York Rite Bodies of Freemasonry of Savannah v. Bd. of Equalization
of Chatham Countv . 202 Ga. App. 487, 414 S.E.2d 749 (1991), reversed in
York Rite Bodies of FreemaBonry v. Bd. of Equalization of nhatihw
Countv . 261 6a. 558, 408 S.E.2d 699 (1991).
In part of our opinion, we held that the properties of two
masonic organizations were not entitled to the ad valorem tax exemption
allowed for public charities because the properties were used as meeting
places. The Supreme Court reversed holding that the fact that the
properties were used as meeting places did not preclude their use froa
being exclusively devoted to charitable purposes.
10. McDaniel v. Hendricks . 195 Ga. App. 252, 393 S.E.2d 4 (1990),
reversed in McDaniel v. Hendricks . 260 Ga. 857, 401 8.E.2d 260 (1991).
In this medical malpractice action, we held that the plaintiff's
expert affidavit was based on a local standard of care and was
insufficient to withstand the defendant -physician ' s motion for summary
judgment. The Supreme Court reversed, relying on favorable inferences
which could be drawn from the expert affidavit.
241
ATTACHMENT 3
Attachment #3 (Response to Question #18)
TRIAL EXPERIENCE DURING THE TIME I WAS EMPLOYED AS AN ATTORNEY
WITH ATLANTA LEGAL AID AND THE FULTON COUNTY DISTRICT ATTORNEY'S
OFFICE:
NOTE: Since there are no computerized or verifible records
readily available, tbe following cases represent my best
recollection of tbe facts and data surrounding each.
In tbe Interest of James Butler, et al. (Juvenile Delinauentsl ;
In 1967, while employed as a legal services attorney, I
represented three juveniles who had been charged with burglary.
There defense prior to and during the trial was that they were
somewhere else, not necessarily together, on the day of the
burglary. Even though their alibi defense was somewhat weak, the
juvenile court judge had not alternative but to dismiss the case
because the eye witness, a neighbor, who claimed to have seen
them enter the home of the elderly victim could not give a
positive identification at trial. Realizing the weakness in my
clients' alibi defense, I noted that the eye witness, because of
age and infirmity was not absolutely sure of whom she saw and the
time at which she witnessed the incident. My cross examination
of the eye witness regarding the identity of the youngsters she
saw was very effective.
Date of Trial: 1967 (Summer)
Court & Judge: Judge Elmo Holt, Fulton County Juvenile Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
Emma Thomas v. Department of Family i Children Services :
In this case, there was a regulation of the Department of Family
and Children Services known as "the substitute father rule." In
essence, this rule required social workers to make random calls
at the home of mothers who were receiving Aid to Dependent
Children benefits and if they found a man in the house then the
man would be declared to be a "substitute father" and the
children's welfare benefits would be automatically terminated.
This rule was first challenged in the Superior Court of Fulton
County and later in the U. S. District Court in the Middle
District of Georgia. We were able to obtain temporary injunctive
relief, thereby temporarily enjoining the enforcement of the
"substitute father rule." Thereafter, the Department of Family
and Children Services was permanently enjoined by a three-judge
panel.
Date of Trial: Unknown
242
Court & Judge ;
Co-Counsel :
Defense Counsel:
Judge Durwood Pye, Fulton Superior Court;
Three Judge Panel Judge Boodle, Judge Griffin
Bell and Judge Elliott
William Skinner (Lead Counsel)
Suite 485 One West Court Sq.
Decatur, Georgia 30030
(404) 377-0466
Unknovm
Clara Jones' Welfare Case ; (An Administrative Hearing)
In early 1968, I represented a young woman before the Fulton
County Welfare Board. The young woman's public assistance had
been terminated prior to a hearing on the issues of whether or
not a substitute father had been rooming and boarding with her.
(The woman had four children and they were literally starving.)
I argued that termination of public assistance in the absence of
a hearing was in violation of the "due process clause" of the
U.S. Constitution. Several days after the hearing, the Welfare
Department reinstated public assistance to her.
Date of Trial:
Court & Judge :
Co-Counsel:
1968
Administrative Law Judge
Sole Counsel
Defense Counsel:
Unknown
State v« Robert Tucker; Rape Case
Defendant raped victim in the presence of her two grandchildren,
ages 8 and 9. Although both children testified to facts that
would indicate rape, the jury (which deliberated eight hours)
returned a verdict of not guilty. I was very upset over the fact
that the jury did not believe the two children who were credible
witnesses. The jurors (some of whom were questioned after the
trial) found it difficult to believe that the defendant, who was
young, attractive, well-dressed, would want to rape a woman who
was much older and unattractive. Because of the above two
factors, the jury felt that the sexual encounter was consensual.
This was my first and only capital felony case.
Date of Trial:
Court & Judge:
Co-Counsel:
Defense Counsel:
Two-day trial; occurred in 1971 or 72
Judge Elmo Holt, Fulton Superior Court
Sole Counsel
Attorney Billy L. Spruell
4840 Roswell Road., N.E.
Atlanta, Georgia 30342-2635
(404)257-0777
243
Rachael Kendricks v. Soc i al Security Administration ;
While working as an Assistant District Attorney, I obtained
permission to assist my cousin, Rachael Kendricks, now deceased
in preparing her case for argument before the Social Security '
tl :^ Although I do not recall the exact details of her problem
with the Social Security Administration, I do know that she had
been denied certain benefits to which she was entitled by virtue
of her medical condition (poor health) . She won her case and the
benefits denied or terminated were reinstated.
Date of Trial: 1971 (approx.)
Court & Judge: Hearing Officer
Co-Counsel: Co-Counsel Unknown
Defense Counsel: Unknown
State V. Fred T homas: Habitual Traffic Violator act
Defendant had been found guilty of numerous traffic violations
including several DUI's. Under the above Act, which is designed
to remove habitual traffic offenders from the streets, the
defendant was found to be a habitual violator and his drivina
arauiinnhrrfH-''^rv'*^'^ ^°'' ^^^^ ^^^ i'^^'^^' ^ overcame thl
argument that this Act was expost facto . This conviction was
among the first in Georgia under this Act.
Date of Trial: Unknown
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
State V. T. Krunkleton : Uniform Reciprocal Enforcement of
BUppOlTt
Petition of support was filed against defendant in a New York
ltTt^/^"' ^°^!^ ^"^ petition here and a hearing on parentage
rtvK K f ^"''^ defendant denied that he was the father of twins
Although twins were born out of wedlock, there was evidence iSich
tituTt"" th^t the defendant provided the mother of tie ?wtns
with a home and paid the entire hospital bill. Later, the
defendant signed the twins' birth certificate. Defendant was
found to be the father. This was a "hotly" contested case
Date of Trial: Unknown
244
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
State V. Charles McLeod; Automobile Condemnation
Defendant sought to recover his auto, which had been impounded
for a drug violation while his son had possession of it. In
order to substantiate impoundment, I had to connect defendant
with offense by showing that he had knowledge of the illegal use.
Date of Trial: Unknown
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
Mary Doe's Petition of Support : (URESA Case)
A Michigan woman, who claimed that her ex-husband was a member of
the "Dixie Mafia," filed a petition for child support under the
Uniform Reciprocal Enforcement of Support Act against her former
spouse who had fled to Atlanta, Georgia, to escape his child
support obligation. When the sheriff attempted to serve him with
the petition of support at the address which she had given, the
sheriff discovered that the ex-husband was not a resident at that
address. When told by the Michigan court that the sheriff was
unable to serve her former husband at the address provided, the
woman started making long distance telephone calls to my office,
claiming that we were either afraid to serve him or that we were
being paid to protect him because of his alleged ties to the
"Dixie Mafia". Despite misgivings about our sincere efforts to
serve her ex-husband, she continued to send us information —
including his photo — concerning his whereabouts and various
aliases he might be using. After service was made on him
sometime later, he absconded after being placed under order to
make his child support payments.
Date of Trial: Unknown
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
In the Interest of: Several Juveniles ; (Cannot recall names)
In 1973, while assigned to Fulton Juvenile Court as a prosecutor,
I prosecuted several juveniles who had been charged with
245
shoplifting at a downtown department store. I can't remember
what items they were accused of taking, but the items were
inexpensive and collectively did not exceed $100 in value. The
juveniles, together with their attorney, argued that they had not
left the store at the time they were stopped by the store's
security guard. They claimed that they were going to pay for the
items prior to leaving the store. However, the evidence showed
that the items taken were concealed and stashed under their
clothes and were not openly visible in their hands as they went
about the store. Each boy was found delinquent and each was
placed on supervised probation.
Date of Trial: 1973 (approx.)
Court & Judge: Judge John S. Langford or Judge Tom Dillon
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
246
ATTORNEYS WHO APPEARED BEFORE ME DURING MY TENURE ON THE FULTON
SUPERIOR COURT BENCH: fui^iuN
Hunter S. Allen, Jr.
Allen & Peters
1360 Peachtree St., N.E.
Suite 1700
Atlanta, Georgia 30309-3200
(404) 874-1700
Attorney Marvin S. Arrington
Arrington & Hollowell
191 Peachtree St., N.E.
Suite 3550
Atlanta, Georgia 30303
(404) 658-9900
Attorney James E. Butler, Jr.
Butler, Wooten, Overby & Cheeley
P. O. Box 2766
Columbus, Georgia 30902
(706) 322-1990
Attorney Robert Goldstucker
Nail, Miller, Owens Hocutt & Howard
Suite 200
66 Luckie St. , N. W.
Atlanta, Georgia 30303
(404) 522-0707
Attorney G. Conley Ingram
Alston & Bird
One Atlantic Ctr.
1201 W. Peachtree St., N.E.
Atlanta, Georgia 30309
(404) 881-7000
Attorney Paul Kilpatrick, Jr.
Pope, McGlamry, Kilpatrick & Morrison
720 Broadway
Columbus, Georgia 31901
(706) 324-0050
Attorney Charles T. Lester, Jr.
Sutherland, Asbill & Brennon
999 Peachtree St., N.E.
Suite 2300
Atlanta, Georgia 30309
(404) 853-8000
Attorney Jack Mallard
30 Waddell St.
Marietta, Georgia 30061
(404) 528-3087
247
Attorney Charles Neal Pope
Pope, McGlamry, Kilpatrick & Morrison
72 Broadway
Columbus, Georgia 31901
(706) 324-0050
Attorney Daniel S. Reinhardt
Troutman Sanders
600 Peachtree St., N. E.
Suite 5200
Atlanta, Georgia 30308
(404) 885-3206
Attorney Richard Sinkfield
Rogers & Hardin
229 Peachtree St., N.E.
2700 Cain Tower
Atlanta, Georgia 30303-1637
(404) 522-4700
Attorney Bernard Taylor
Alston & Bird
One Atlantic Ctr.
1201 W. Peachtree St.
Atlanta, Georgia 30309
(404) 881-7288
(404) 572-4600
248
ATTACHMENT 4
nNANC3AJL STATEMEhrr
KET WORTH
Provide i complete, current flnindal net worth lutemeni which iterrvKi In dct
alJ t5$f IS (Including b»nk Jccounu. rtil tjuie, jecuritiej, tnjslj, invcstmenu. and other fmiftc.
holdings) all UabUitics (bdudlng debts. tT\ortg»gcj. loans, and other rmincul obUgationi)
yo\in<\!, yout spouse, and other Invnediat* mcmberj of your household.
ASSETS
UMUSULS
~r
Cuh on lu\i ifi^ ifl bw\lu
>s.n?d
33
tioUA p«y»b;c to Unla-i*c»i;»d
16,439
5C
U.S. Covtrmscnt taainin-tii
»che<3ul« US SAVINGS E BOIDS
150
00
Nolu ptjrtblt to b4nla-UAi(cu.*»d
00
Linrd K«uncic4--»(U KhnJult
73^853
30
NffUi pt/tVU to rtlio've*
00
VniltU^ KCiffit!c»"KU Kiedjl*
00
Noui piytbtc to eihcn
m
Atxou/iU tni noi*« rt«'>viWe;
AMOunii i/>4 btUi du«
4.980
ffS
D\»« from iilitirti ifld fritftdi
00
Unpild Itcomt UX
00
Due from oOiui
00.
Ol>>c/ onptjd Ux trti intm <t
CD'
Doubtftil
00
Rtil (itiU mart{i(M piyt^Ic-idd
K>l»dlll*
56,319
88
F.e»l mUU ovntd.-»<]d iche/Jj'.e
122,600
00
Chuie] p>or(tt|e< ind other b'tni piy-
R^ tiuie mort|«|ei roctivitlt
00
Other dcbU-iKnuM:
Autot »J^d other penoo«I profoiy
38.450
00
tetropolitan Life-Loan
^97
30
Cuh viJue-L/« iniu:t;<c«
6^854
86
Howard Barron, C.P.A.
465
00
h ■■
OOier Uitls-i'^ralit;
Georqia Alliance, far
Oiildrfin tpiedq^
600
OC
Deferred CcsiiDensation
89,499
47
Professional and Other
Dues
625
C(
Tax Shelter Annuity
69,062
48
1 IRA(s)
10, 974
17
T0t4j tilbHiliM
32, 527 5'
Net Worfli
153, 941. :
Tout AistU
436,468 67
Tot*l b'tbOidu tM net *^tlS ^
36, 468. (
B CO.vmNCENT UABIUTIES
CENXIUL INF0R.MATION
A5 eodoricT, tcmtku or {uuioior
00
Are kny aiM'j tUtaitit (Add icKed-
Od Uuei or contrwlf
00
A/t you dcfcedvit ir. u.y tuiu o( l(|tj
itdorwt No
Vtfi Otlrn*
00
H«vt you ever uUoV)»nbvp<e>7 No
Provlilon for FedcnJ Incomi Tm
00
0»>xf tpteUl debt
00
249
INVESTMENTS
U.S. Savings Bonds (Series E) $150.00
Government Securities
I. Campaign Account
Bonds $10,428
Mutual Funds 21,340 Listed Securities
II. IRA Accounts: 9,205
2,769 (spouse)
III. Personal Investments Listed Securities
Stock :
Coca Cola - 300 shares 6 42.50/share
CEMAX - 100 shares § 41. 00/ share
Home Depot - 300 shares § 36.25/share
Toys R Us - 300 shares § 35.25/share
First Southern Bank - 100 shares @ 5.00/share
IV. Money Market $800 Listed Securities
V. Bank Accounts
Wachovia
Investment $ 133.59
Checking: 672.08
Citizens Trust Bank
Time Deposit $ 7,779.08
Fulton County School System Credit Union (spouse)
Checking: $13,539
Savings: 198
VI. Value of Real Estate
(Personal Residence): $122,600.00
VII. Deferred Compensation /Tax Shelter
Fulton County Deferred Compensation Plan $56,488.88
State of Georgia Deferred Compensation Plan $33,010.59
Tax Shelter Annuity (Travelers) $69,062.49
VIII. Value of Vehicles
1988 Mazda $6,900
1991 Ford Explorer 13,550
250
IX. Insurance (Cash Value)
Allmerica Financial $3,287.60
Metropolitan Life 3,567.26
(Loan Amt. $2,897.31)
X. Value of Personal Property
Mink Coat $10,000
Jewelry 3,000
Computer & Printer 3,000
Cameras & video Equipment 2 , 000
LIABILITIES
Loans
A. Metropolitan Insurance $2,987.31
B. Mortgage balance First Union Bank
56,319.88
(9/22/93)
C. First Union Bank Equity Account
16,439.50
251
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION PUBLIC)
1. Full name (include any former names used).
Frank Mays Hull
2. Address: List current place of residence and onice address(es).
Residence: 3452 Woodhaven Road, NW
Atlanta, Georgia 30305
Office: Judge Frank M Hull
Superior Coun of Fulton County
Atlanta Judicial Circuit
T4705 Fulton County Judicial Center
185 Central Avenue, SW
Atlanta, Georgia 30305
3. Date and place of birth.
December 9, 1948 - Augusta. Richmond County, Georgia.
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Date of marriage:
Spouse:
Occupation:
Employer:
April 16, 1977
Mr. Antonin Aeck ("Tony")
Architect
Lord, Aeck & Sargent. Inc., an architectural firm
400 Colony Square, Suite 300
1201 Peachtree Street, NE
Atlanta, Georgia 30361-6303
252
Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
1973. J.D., cum laude, Emory University School of Law, Atlanta, Georgia; attended
1970-1973
6.
1970, B.A., Randolph-Macon Woman's College, Lynchburg, Virginia; attended 1966-
1968 for freshman and sophomore years, and 1969-1970 for senior year.
University of Reading, Reading, England; attended September 1968-July 1969 as part of
Junior Year Abroad Program of Randolph-Macon Woman's College.
Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
ofHcer, director, partner, proprietor, or employee since graduation from college.
August 1990-Present:
Judge, Superior Court of Fulton County
Atlanta Judicial Circuit
Atlanta, Georgia
November 1984-
August 1990:
1974-1984:
Judge, State Court of Fulton County
Atlanta, Georgia
From 1974-1980 I was an associate; in 1980
I became the first female partner in a law
firm of 150 anomeys.
Powell. Goldstein, Frazer & Murphy
Atlanta, Georgia
1973-1974:
Sununer 1972:
Summer 1971:
Law Cleric
Judge Elbert P. Tuttle
United States Court of Appeals
for the Fifth Circuit
Atlanta, Georgia
Summer Associate after second year of law school with
firm of Powell, Goldstein, Frazer & Murphy
Atlanta, Georgia
Summer Associate after first year of law school with firm
of Bumside, Dye & Miller
Augusta, Georgia
-2-
253
Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Emory School of Law
1973: J.D. cum laude Emory University School of Law
1973: Order of the Coif (academic honor society)
1973: Wall Street Journal Award (to one senior for overall achievement)
1973: Who's Who in American Colleges and Universities
1973: National Fellow, American Association of University Women
1972-1973: Notes/Comments Editor, Journal of Public law (now Emory Law
Review)
1971: M. P. Laughlin Writing Award (to one freshman)
Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates
of any offices which you have held in such groups.
1. 1992-Present: State of Georgia Commission on Family Violence, Atlanta,
Georgia (appointed by Governor Zcll Miller)
a) 1992-Present: Chair, Subcommittee to esublish Family Violence Task
Forces in Georgia's 45 judicial circuits
2. 1973-Present: Member, Sute Bar of Georgia. Atlanu, Georgia
a) 1991-Present: Member. Sute Bar of Georgia Bench & Bar Committee (to
improve interaction between Bench and Bar)
b) 1990-Present: Member. Sute Bar of Georgia Correctional Facilities and
Services Conunittee (promotes/oversees "BASICS" program offering
employment workshops for inmates prior to release)
c) 1988-1991: Member. Sute Bar of Georgia Conunittee on Women and
Minorities in the Profession
d) 1 99 1 - 1 993 : Executive Committee , Georgia Sute-Federal Judicial Council,
Atlanu, Georgia
3. 1990-Present: Member, Council of Superior Court Judges, Sute of Georgia,
Atlanu, Georgia
a) 1990-1993: Chair. Gender/Racial/Ethnic Fairness Committee
b) 1991-1993: Member, Uniform Rules Committee
254
4. 1984-1990: Member, Council of State Coun Judges, State of Georgia, Atlanta,
Georgia
a) 1987-1990: Member, Uniform Rules Comminee
b) 1987-1990: Member, Program Committee
5. 1974-Present: Member, American Bar Association, Chicago, Illinois
a) 1978-1985: Vice-Chairman, ABA's Fidelity and Surety Law Committee
(fidelity/surety bonds for contractors/financial institutions)
b) 1979-1982: Financial Secretary and Long Range Planning Committee,
ABA's Tort and Insurance Practice Section
c) 1981-1985: Editorial Staff, The Construction Lawyer , published by
ABA's Forum Committee on Construction Industry
d) 1983-1985: Chairman, Contract Documents Division, ABA's Forum
Comminee on Construction Industry
6. 1992-Present: Fellow, American Bar Foundation, Chicago, Illinois
7. 1974-Present: Member, Atlanta Bar Association, Atlanta, Georgia
a) 1977-1979: Board of Directors, Atlanta Council of Younger Lawyers
b) 1977-1979: Chairman, ACYL Northern District of Georgia Casenotes
Committee (prepared summary of unreported decisions in United States
District Coun for Northern District of Georgia)
8. 1984-Present: Member, Gate City Bar Association, South Fulton Bar
Association. North Fulton Bar Association, and Georgia Association of Black
Women Attorneys, Atlanta, Georgia
9. 1985-Presem: Member, National Center for Sute Courts, Williamsburg, Virginia
10. 1985-Present: Member, American Judicature Society, Chicago, Illinois
a) 1990- Present: National Board of Directors
11. 1988-Present: Member, National Association of Women Judges, Washington,
DC.
12. 1975-Present: Member, Georgia Association of Women Lawyers, Atlanta,
Georgia
13. 1988-1991: Member, Sute of Georgia Commission on Gender Bias in Judicial
System, Atlanta. Georgia (appointed by Chief Justice of Georgia Supreme Court)
a) 1988-1991: Chair, Domestic Violence Subcommittee
14. 1988-1991 : Board of Directors, Atlanu Volunteer Lawyers Foundation, Atlanta,
Georgia (recruits pro bono attorneys and provides pro bono representation to low
income clients; funded by court filing fee)
15. 1984-Present: Member. Lawyers Club of Atlanta, Atlanta. Georgia
255
16. 1991-Present: Member, Bleckley American Inn of Coun, Atlanta, Georgia
a) 1992-Present: Executive Comminee
17. 1991: Visiting Judge. Georgia Supreme Court, for one case where sitting
Justice had to recuse. See York Rite Bodies of Freemasonry of Savannah-
Georgia, et al. V Board of Equalization of Chatham County . 261 Ga. 558, 408
S.E.2d 699 (1991).
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
I do not belong to any organizations that are active in lobbying before public bodies.
All other organizations to which I belong are:
1986-Present Member, Leadership Atlanta. Inc., Atlanta. Georgia
1992-1993 Selection Committee for Applicants for 1993-1994 Class
1988-1989 Co-Chair for Criminal Justice Program Committee
1986-1987 Class of Leadership Atlanu
1976-1979 Board of Directors. Metro Atlanta Mediation Center, Inc. (operates The
Bridge, a non-profit family counseling center)
1979-Present Member, Cathedral of St. Philip. Atlanta, Georgia
1983-1991 Sunday School teacher
1990-1992 Outreach Committee (awards grants)
1988-1991 Sunday School teacher in outreach program at Emmaus
House. Capitol Avenue, Atlanta, Georgia
1985-1989 Assistant Den Leader, Den 5, Troop 74, Boy Scouts
of America troop at the Cathedral
Present member: Atlanta Women's Network, Speech School Guild. Atlanta Bounical
Garden, High Museum of Art, Randolph-Macon Woman's College Alumni Association-
Atlanta Chapter. (I do not recall the exact dates I joined each organization but have been
a member for over five years.)
11. Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of memberships. Give the same information for administrative
bodies which require special admission to practice.
1973 United States Court of Appeals for the Fifth Circuit
1974 United Sutes District Court for Northern District of Georgia, Georgia Supreme
Court. Georgia Coun of Appeals, and Superior Court of Fulton County
1977 United States Supreme Court
1982 United States Coun of Appeals for the Eleventh Circuit
-5-
256
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply
a copy of all speeches by you on issues involving constitutional law or legal policy.
If there were press reports about the speech, and they are readily available to you,
please supply them.
"Pyramid Marketing Plans and Consumer Protection: State and Federal Regulations",
21 Journal of Public Law 445 (1972) (now Emory Law Review)
"Civil Procedure-Application of Long-Arm Statute to Foreign Corporation", 8 Georgia
State Bar Journal 414 (1972)
"Bankruptcy of Principal: Reclamation and Other Common Problems Facing the
Principal and Its Surety", 12 Forum 200 (1976) (Topic of paper for TIPS at ABA's 1976
Annual Meeting in Atlanta; The Forum is a legal periodical published by the ABA's Tort
and Insurance Practice Section - "TIPS")
"Surety's Liability for Attorneys' Fees and Coun Costs Under Fidelity Bonds", 14
Forum 634 (1979) (Topic of paper and speech for TIPS at ABA's 1978 Annual Meeting
in New York)
"The ABC's of Unidentifiable Employee Coverage", 15 Forum 948 (1980) (Topic of
paper and speech for TIPS at ABA's Mid-Winter Meeting in New York)
13. Health : What is the present state of your health?
Excellent.
List the date of your last physical examination.
May 18, 1993.
14. Judicial Office : State (chronologically) any judicial unices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Current judicial office : August 1990-Present
Judge, Superior Court of Fulton County
Atlanu Judicial Circuit
Atlanu. Georgia
Governor Joe Frank Harris appointed me to this Court in 1990. I was re-elected in
November, 1992 for a four-year term (1993-1997). This is a general jurisdiction State
trial court with jurisdiction over felony criminal cases, all civil cases both at law and in
equity, and all divorce cases. There is no limitation on the jurisdiction.
257
Preyjous judicial office : November 1984-August 1990:
Judge, State Coun of Fulton County
Atlanta, Georgia
Governor Joe Frank Harris appointed me to this Court in 1984 I was re-elected in 1986
and again in 1990. This is a limited jurisdiction trial court with jurisdiction over
misdemeanor criminal cases and all civil cases except divorces, claims in equity, and
cases involving title to real property.
In summary, 1 have been re-elected as a State trial judge three times (in 1986, 1990, and
1992), and have never been an unsuccessful candidate in a judicial election.
For nine years as a trial judge on two trial courts, I have handled (a) over 2,500 felony
criminal cases on Superior Court and over 5,000 misdemeanor criminal cases on State
Court, and (b) over 3,000 civil cases in Superior and Slate Courts. I have presided over
at least 200 jurj' trials. 300 bench trials, and thousands of criminal pleas and non-jury
motions in civil and criminal cases.
15. Citations : If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have written; (2) a short
summary of and citations for all appellate opinions where your decisions wen
reversed or where your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for significant opinions on federal
or state constitutional issues, together with the citation to appellate court on such
opinions; If any of the opinions listed were not officially reported, please provide
copies of the opinions.
(1) Copies and citations of ten significant opinions are attached as Exhibit 2.
(2) To the best of my knowledge, no appellate opinions have affirmed my decisions
with significant criticism. A summary of appellate opinions where my decisions
were reversed is attached in Exhibit 3.
(3) Ciutions for significant opinions on federal or state constitutional issues are
included and identified in Exhibit 2.
16. Public Office : State (chronologically) any public offices you have held, other than
judicial ofTices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
I have not held any elected public office other than the judicial offices outlined in
question 14 above. 1 have been appointed to several State Commissions:
1992-Present: State of Georgia Commission on Family Violence, Atlanta,
Georgia (appointed by Governor Zeli Miller)
a) 1992-Present: Chair, Subcomminee to establish Family Violence Task
. . Forces in Georgia's 45 judicial circuits
-7-
258
1988-1991: Member, State of Georgia Commission on Gender Bias in Judicial
System, Atlanta, Georgia (appointed by Chief Justice of Georgia Supreme Court)
a) 1988-1991: Chair, Domestic Violence Subcommittee
17. Leyal Career :
a. Describe chronologically your law practice and experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
1973-1974 Law Cleric
Judge Elbert P. Tuttle
United States Court of Appeals for the Fifth Circuit
Atlanta, Georgia 30303
2. whether you practiced alone, and if so, the addresses and dates;
I have not practiced alone.
3. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
1974-1984 From 1974-1980 I was an associate; in 1980 I became the
first female panner in a law firm of ISO attorneys.
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, NE
Atlanta. Georgia 30303
(404) 572-6600
Sununer 1972 Summer Associate after second year of law school
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, NE
Atlanta, Georgia 30303
(404) 572-6600
Summer 1971 Sununer Associate after first year of law school
Bumside, Dye & Miller
Augusta, Georgia
(This law firm no longer exists.)
259
b. 1. What has been the general character of your law practice, dividing it
into period with dates if its character has changed over the years?
In my prior law practice for 10 years with Powell. Goldstein. Frazer &
Murphy. I had a general trial practice and worked on over 200 cases in
federal and state courts, which involved a broad range of areas such as-
contracts, banking, loans, civil rights, all areas of the UCC, construction
law, federal copyright infringement, insurance, real estate, suret> and
guaranty relationships, employee dishonesty, creditors' rights, employment
and age discrimination, materialmen's liens, subrogation, fidelity bonds,
performance and payment bonds, professional malpractice, receiverships,
personal injury, divorce, contracts, torts, equity, executor/administrator
bonds, and fiduciary relationships.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
I specialized in civil litigation and represented a broad spectrum of clients
in a wide range of cases. Here are a few examples:
1) In both state and federal courts, I represented numerous
businesses, banks, commercial lenders, and bank customers in
cases involving real esute transactions, the Uniform Commercial
Code, loans, and/or other banking transactiqas.
2) A federally insured state bank in Georgia failed in 1976. I
represented the Federal Deposit Insurance Corporation in at least
24 lawsuits in federal and sute courts regarding die receivership
and the assets/liabilities of that insolvent state bank.
3) With funding from the National Education Association, I
represented in federal courts (a) plaintiff teachers in actions against
local school boards for racial discrimination in faculty employment
and (b) a plaintiff teacher in an action against a local school board
for age discrimination in faculty employment.
4) A significant pan of my law practice involved construction
contract litigation and arbitration. I represented owners,
contractors, subcontractors, and suret>' companies in numerous
construction contract claims, litigation, and arbitration, especially
involving performance and payment bonds.
5) In federal court. I handled at least a dozen copyright infringement
cases for Broadcast Music, Inc. as a plaintiff.
-9-
260
6) Insurance companies issue fidelity bonds to banks and businesses
insuring for losses caused by employee dishonesty. I represented
numerous insured businesses and insurance companies in
prosecuting and defeixling commercial fidelity bond cases.
c. 1. Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving dates.
I appeared in court frequently.
2. What percentage of these appearances was in:
(a) federal courts: 50% in law practice
(b) state courts of record: 50% in law practice
(c) other courts: not applicable
3. What percentage of your litigation was:
(a) civil: 100% in law practice
(b) criminal: 1 handled several pro bono criminal cases in law
practice.
4. State the number of cases in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
Approximately fifteen. In the first three years of law practice, 1 was
generally associate counsel under the supervision of a partner. In the last
seven years of law practice, I generally was lead counsel on the cases I
handled.
5. What percentage of these trials was:
(a) jury: 15%
(b) non-jury: 85%
18. Litigation : Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before whom the
case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
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261
The following is a summary of ten significant cases which I personally handled whOe
with Powell, Goldstein, Frazer & Murphy.
While other attorneys at this firm may be listed in the pleadings, I was the attorney whh
primary responsibility for the work in these cases. I personally handled all ooun
appearances in all of the cases listed below, whether at trial, at oral argument, on appeal,
or at any court hearings on motions. I also personally drafted the pleadings and briefe
filed in these cases and personally conducted the discovery in these cases.
1.
Fred E. Rizk. et al . v. James H. Jones, and others as trustees of Firet
Commerce Realty Investors. 148 Ga. App. 473, 251 S.E.2d 360 (1978), afTd .
243 Ga. 545, 255 S.E.2d 19 (1979)
Plaintiff borrowers sued my lender client, First Commerce Realty Invesnrs
("FCRI"). a Louisiana REIT, for $2 million in damages for breach <rf a
development loan for 300 acres in Gwinnett County, Georgia. My client FCRI
counterclaimed for over $3 million in already past due debt under the i»m«i
acquisition loan.
The trial court granted summary judgment to my client FCRI on its counterclasms
against the plaintiff borrowers, which was affirmed on direct appeal. After the
appeal, the main Complaint by the plaintiff was still left to be tried. The case
was senled for an immediate payment of $2.5 million from the plaintiff bornnven
to my client FCRI.
Trial Court :
Judge Reid Merritt*
Superior Court of Gwinnen County
Lawrenceville, Georgia
♦Judge Merrin is now in private
practice:
PO Box 686
368 South Perry Street
Lawrenceville, (jeorgia 30245
(404) %3-9933
Counsel for opposing parties :
Counsel for plaintiffs in trial court:
Mr. Robert W. Beynart
Mr. David K. Whatley
Smith, Cohen, Ringel, Kohier & Manin*
Atlanta, Georgia
Appellate Court :
The Honorable Julian Webb*»
Georgia Coun of Appeals
Atlanta, Georgia
**Judge Webb is now in private
practice:
118 West Second Street
P.O. Box 277
Donalsonville, Georgia 31745-0277
(912) 524-2456
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262
*Both attorneys are now with different law firms:
Mr. Robert W. Beynart
Smith, Gambrell & Russell
Suite 3100 Promenade II
1230 Peachtree Street. N.E.
Atlanta, Georgia 30309-3592
(404) 815-3500
Counsel for plaintiffs' ap peal:
Mr. A. Felton Jenkins, Jr.
King & Spalding
42nd Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1740
(404) 572-4600
Mr. David K. Whatley
Fortson & White
3(X) Atlanta Financial Center
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326-1042
(404) 239-1900
2. Receivership action of In re Hamilton Bank and Trust Company . Civil Action
No. C-24035 (Fulton Superior Ct., 1976-79).
The Department of Banking and Finance of the State of Georgia took possession
of the insolvent state bank and petitioned the court to appoint the FDIC as
receiver. 1 represented the FDIC as receiver. When FDIC is appointed receiver
of a bank, it has two options: (1) to sell the assets/liabilities of the failed bank
to an ongoing bank or (2) to proceed with a straight liquidation. This closed sute
bank's liabilities (i c, customer deposits) far exceeded its assets (i.e., loan
portfolio).
The FDIC as receiver (1) sold for over $22 million in cash the loans in default
to FDIC in its corporate capacity as insurer and (2) sold for over $33 million to
the National Bank of Georgia the liabilities (i.e., customer deposits) with an
offsetting amount of good assets (i.e., good loans plus the $22 million cash from
FDIC in its corporate capacity as insurer). This allowed the ongoing bank to take
over the customer deposits without any interruption in service and with customers
receiving 100% of their deposits. The FDIC in its corporate capacity as insurer
then proceeded to collect the loans in default in an attempt to recoup its cash
payment of over $22 million made to faciliute the sale of liabilities to the
ongoing bank.
I also represented the FDIC as receiver in the receiver's ongoing reports to the
trial court on the sutus and resolution of the receivership.
Court :
Judge John S Langford
Superior Court of Fulton County
Atlanta Judicial Circuit
185 Central Avenue. S.W.
Atlanta, Georgia 30303
(404) 730-4305
Counsel for opposing party:
The insolvent stale bank did not
employ counsel to oppose the
receivership. Since all depositors
received 100% of their deposits, they
did not oppose the actions of the
FDIC as receiver.
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I also represented the FDIC in its corporate capacity as insurer in at least 24
lawsuits in state and federal courts to collect the various delinquent loans
purchased from FDIC as receiver of the state bank. For example, see FDIC v.
Jones . 161 Ga. App. 867, 291 S.E.2d 70 (1982); FDIC v. West . 149 Ga. App.
342, 254 S.E.2d 392; affid- 244 Ga 396, 260 S.E.2d 89 (1979).
Federal Deposit Insurance Corporation v. Fidelity and Deposit Companv of
Maryland v. Thomas M. Hutcheson. et al. . Civil Action File No. C77-1762A
(U.S.D.Ct., N.D.Ga. 1977-79)
FDIC in its corporate capacity as insurer sued to collect money owed under a
fidelity bond for losses caused by dishonesty of employees of a closed state bank.
The FDIC in its corporate capacity as insurer purchased the rights of the closed
state bank under the fidelit)' bond. The case involved myriad issues, such as the
authorization of the dual capacities of the FDIC under federal statutes and
decisional law. especially 12 USCA § 1823, subject matter jurisdiction issues
under 12 USCA § 1819 and 28 USCA § 1345; whether the superior equities
doctrine and other law precluded third party complaint against the directors of the
closed state bank and numerous other discovery and procedural issues. The case
was ultimately settled.
Court : Counsel for opposing party :
Senior Judge Albert J. Henderson* Mr. John W Hinchey
United States Court of Appeals Phillips, Hinchey & Reid**
for the Eleventh Circuit Atlanu, Georgia
56 Forsyth Street, N W.
Atlanta, Georgia 30303
(404) 331-6816
*Judge Henderson presided over this **Mr. Hinchey is now with
case as a Judge on the United States another law firm:
District Court for the Northern Mr. John W. Hinchey
District of Georgia. King & Spalding
42nd Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1740
(404) 572-4600
Hllson. et al. v. Washington County Board of Education, et al. . Civil Action
No. 2449 (L.S.D.Ct.,M.D.Ga. 1977-79).
With funding from the National Education Association, I represented the plaintiff
teachers in this class action against this school board for racial discrimination in
faculty employment. The class was certified, and the liability issue was tried
before Judge Owens. After my clients prevailed on the liability issue, the school
board reinstated the teachers but still refused to pay damages and back pay
requested by certain teachers. I then began trying the individual teacher's damage
claims. After recovering damages in the first teacher" s damage trial, the school
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264
board settled the remaining damage claims,
recovered by my client.
Half of my attomeys' fees were also
Court :
Chief Judge Wilbur D. Owens.
United States District Court
Middle District of Georgia
Macon Division
P. O. Box 65
Macon, Georgia 31202
(912) 752-3491
Counsel for opposing parties :
Jr. The Honorable Thomas A. Hutcheson*
State Court of Washington County
P.O. Box 621
Sandersville. Georgia 31082-0621
(912)552-6911
"Judge Hutcheson handled this case
while in private practice.
The Honorable Denmark Groover. Jr.
Groover & Childs
P. O. Box 898
Macon. Georgia 31202-0898
(912) 745^712
5. Thelma Davis v. Griffin Spalding County Board of Education . 445 F.Supp.
1048 (U.S.D.Ct.,N.D.Ga. 1975)
With funding from the National Education Association. I represented the plaintiff
Thelma Davis in her claim against the local school board for age discrimination
in faculty employment and for impermissibly enacting a 65 mandatory retirement
age when the mandatory sute retirement system allowed teachers to retire as late
as age 70. Plaintiff Davis was employed continuously as a classroom teacher for
21 years but was not rehired solely because of her age. The sute law provided
for mandatory retirement of public school teachers at age 70. but the local school
board, after allowing plaintiff to teach for three years past age 65, passed a new
mandatory retiremeni at age 65. Plaintiff had criticized the defendant's school
policies, worked for the defeat of a local school bond referendum as unnecessary,
and worked with the NEA to change teachers' contracts.
The trial court granted my client's motion for summary judgment based on the
pendent state law claim that the local school board was not authorized to enact the
mandatory retirement age of 65 because the state's public policy prevailed over
the local school board's right to set a lower mandatory retirement age. The trial
court also awarded back pay to my client, plaintiff Thelma Davis, fuiding the
defendant local school board had not timely raised the defense of lack of capacity
to be sued, that the consent to be sued waived governmental immunity, and that
the local school board had sufTicient local resources to pay a judgment for back
pay without transgressmg state law authorizing use of state funds for educational
purposes only.
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265
Court
Senior Judge Alben J. Henderson*
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta. Georgia 30303
(404) 331-6816
Counsel for opposing partv :
Mr. Dow N. Kirkpatrick, II
Alston & Bird
One Atlantic Center
1201 W. Peachtree Street
Atlanta. Georgia 30309-3424
(404) 881-7346
6.
*Judge Henderson presided over this
case as a Judge on the United States
District Court for the Northern
District of Georgia.
The Travelers Indemnity Company v. A. M. Pullen & Co. . 161 Ga. App.
784, 289 S.E.2d 792 (1982) (cert, denied)
I represented the plaintiff Travelers, which issued surety bonds for a construction
contractor based on financial statements cenified by defendant Pullen, an
accounting firm The contractor became bankrupt and defaulted on various
projects My client Travelers sued Pullen for over $30 million in damages for
negligence, breach of contract and fraud in preparation and cenification of the
financial statements The trial coun granted summary judgment to defendant
Pullen. finding that plaintiff Travelers was a third party not in privity and
Travelers could not sue Pullen.
As a matter of law the appellate court reversed and held that my client Travelers
as a third party could sue Pullen. After 1 obtained the reversal on appeal and
Travelers' right to sue, my client Travelers received a substantial settlement from
defendant Pullen which is protected by a non-disclosure agreement.
Trial Court :
Chief Judge William W Daniel
Superior Coun of Fulton County
Atlanta Judicial Circuit
185 Central Avenue, S.W.
Atlanu, Georgia 30303
(404) 730-4318
A ppellate Court :
The Honorable A. W. Birdsong, Jr.
Georgia Court of Appeals
412 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334
(404) 656-3454
Counsel for opposing party :
Mr. George B. Haley, Jr.
Mr. Richard R. Cheatham
Kilpatrick & Cody
1100 Peachtree Street
Suite 2800
Atlanta. Georgia 30309-4530
(404) 815-6370
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266
Phoenix Insurance Co.. et al. v. Aetna Casualty & Surety Co. . 144 Ga. App.
555, 241 S.E.2d 445 (1978).
I represented the defendant Aetna in a complicated insurance, reinsurance and
fidelity bond dispute. The trial court granted summary judgment against my
client Aetna for over $1 million. I handled the appeal and that summary
judgment was reversed in toto in 1978. The case was ultimately dismissed
against Aetna. When the case was refiled by the same plaintiff in 1983, I moved
for summary judgment on behalf of Aetna based on certain statute of limitation
defejises, and the plaintiff voluntarily dismissed its case with prejudice in July
1984.
Trial Court :
Judge Claude Shaw (deceased)
Superior Coun of Fulton County
Atlanta Judicial Circuit
A ppellate Court :
The Honorable A. W. Birdsong, Jr.
Georgia Court of Appeals
412 Sute Judicial Building
40 Capitol Avenue, S.W.
Atlanta. Georgia 30334
(404) 656-3454
Counsel for opposing party :
The Honorable Sam F. Lowe. Jr. (deceased)
Atlanta, Georgia
Presidential Ltd. v. Highlands Insurance Co. v. Beale Roofing and GAF
Corooration , Civil Action File No. C77-120A (U.S.D.Ct.,N.D.Ga. 1977-79).
The plaintiff Presidential Ltd. entered into a construction contract with PC.
Dinkins for construction of a hotel. The defendant Highlands Insurance
Company, as surety, issued performance and payment bonds on behalf of the
contractor Dinkins who later defaulted under his construction contract. I
represented the plaintiff Presidential Ltd. in this lawsuit to collect over $800,000
under the bonds due to Dinkins' breach of his construction contract.
My client's damages resulted from myriad construction defects, unpaid
materialmen/ subcontractors, and delay in completion of the hotel The defendant
surety filed a third party complaint against the roof subcontractor and the
manufacturer of the roofing materials. My client plaintiff Presidential Ltd.
recovered $640,000 in settlement after extensive litigation.
Court :
Judge Robert L. Vining, Jr.
United States District Court
Northern District of Georgia
P. O Box 6226
Rome, Georgia 30162-6226
(706) 291-5671
Counsel for opposing party :
For defendant Highlands Insurance Company
Mr John W Hinchey*
Mr. Albert E. Phillips**
Phillips, Hinchey & Reid
Atlanta, Georgia
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267
Both attornevs are now with different law firms:
•Mr. John W Hinchey
King & Spalding
42nd Floor
191 Peachtree Street. N E.
AUanu, Georgia 30303-1740
(404) 572-4600
**Mr. Albert E. Phillips
Phillips & Reid
1200 Harris Tower
233 Peachtree Street. N.E.
Atlanta, Georgia 30303
(404) 659-6000
For defendant GAF Corporation For defendant Beale Roofing Company
Mr. John A. Chandler
Sutherland, Asbill & Brennan
999 Peachtree Street, N.E.
Suite 2300
Atlanu. Georgia 30309-3964
(404) 853-8029
Mr. Stephen M. Phillips
Hendrick, Spanos & Phillips, P.C.
1410 Peachtree Center Tower
230 Peachtree Street. N.E.
Atlanta, Georgia 30303
(404) 522-1410
The Fidelity & Guaranty Company of New York v. The First National Bank
of Atlanta . Civil Action No. C80-1416A (U.S.D.Ct.N.D.Ga. 1980-82)
Aetna Casualty & Surety Company hired me to defend Aetna's insured. The First
National Bank of Atlanta, which had paid over $1 million in forged checks An
employee of General Foods Corporation forged checks drawn on General Foods'
checking account at the First National Bank of Atlanta General Foods recovered
its losses from its surety. The Fidelity & Guaranty Company of New York, under
a fidelity bond covering employee dishonesty. General Foods assigned to the
surety all claims against third parties based on the forged checks. Thereafter, the
surety. Fidelity <t Guaranty Company of New York, sued the First National Bank
of Atlanta for paying the checks bearing a forged drawer signature.
The bank's defenses were, inter alia . (1) that General Foods' negligence
substantially contributed to the making of the forged checks, thereby barring
recovery under the Uniform Commercial Code as adopted in Georgia in
O.C.G A § 109A-3-406 and (2) that General Foods failed to give the bank notice
of the unauthorized checks within 60 days after the bank statements were made
available, thereby precluding General Foods from assening unauthorized
signatures against the bank as provided in the UCC as adopted in Georgia in
O.C.G.A. § 109A^-406. The case was ultimately settled.
Court :
Judge Roben L Vining, Jr.
United States District Court
Northern District of Georgia
P O. Box 6226
Rome, Georgia 30162-6226
(706)291 5671
Counsel for opposing party :
Mr John W Hinchey*
Mr Alben E Phillips**
Phillips, Hinchey & Reid
Atlanu, Georgia
■17-
268
10.
Both attorneys are now with different law firms:
*Mr. John W. Hinchey •*Mr. Albert E. Phillips
King & Spalding Phillips & Reid
42nd Floor 1200 Harris Tower
191 Peachtree Street. N.E. 233 Peachtree Street. N.E.
Atlanu. Georgia 30303-1740 Atlanu. Georgia 30303
(404) 572-4600 (404) 659-6000
Chrysler Credit Corporation v. Southlake Dodge. Inc. and Paul F. Fusillo .
Civil Action File No. C75-434 (U.S.D.Ct.,N.D.Ga. 1983-84).
The plaintiff Chrysler Credit made a loan to Southlake Dodge, a car dealership,
which my client Paul Fusillo guaranteed. In 1974, the plaintiff Chrysler Credit
received a summary judgment for $217,928.51 on the loan against the defendants.
The defendants' original counsel never responded to plaintiffs motion. As the
motion was unopposed, judgment was entered. After the judgment was entered,
Chrysler Credit took possession of all collateral for the loan and sold the vehicles,
equipment, accounts receivable, and all assets of the car dealership. For nine
years, Chrysler Credit took no action and the judgment became dormant.
Nine years later, in 1984, Chrysler Credit sought to revive the 1974 judgment and
seek a deficiency from my client defendant Fusillo. In 1984 1 was retained to
defend Mr. Fusillo in connection with the revival and deficiency motions.
Defendant Fusillo contended the judgment already was satisfied not only in fact
but also by virtue of an accord and satisfaction. Alternatively, defendant Fusillo
asserted that Georgia law presumes the collateral equals the debt because Chrysler
Credit could not show its sale of the collateral was commercially reasonable under
O.C.G.A. § 11-9-504. There were numerous other defenses. Ultimately, the
Court denied Chrysler Credit's motion to seek a deficiency, and my client Fusillo
prevailed as a matter of law.
Court :
Senior Judge Charles A. Moye.
United Sutes District Court
Northern District of Georgia
2342 U.S. Courthouse
75 Spring Street. S.W.
Atlanta. Georgia 30303
(404) 331-4559
Counsel for opposing party :
Jr. Mr. Gregory J Digel
Branch. Pike, Ganz & O'Callaghan
15th Floor, Two Midtown Plaza
1360 Peachtree Street, N.E.
Atlanu. Georgia 30309-3507
(404) 898-8000
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269
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters tkat
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (anless the
privilege has been waived).
The vast majority of my law practice was civil litigation involving over 200 lawsuits in
federal and state courts, as outlined in questions 17 and 18 above.
In addition to handling many lawsuits in federal and state trial courts, my law practice
also involved: (a) construction contract cases before the American Arbitration
Association; (b) construction contract claim negotiations where disputes arose between
parties dunng the course of construction on a project; (c) investigation of claims for and
against insurance companies, rendering written opinions as to coverage, and negotiatiflg
settlements.
My legal activities also included extensive involvement and leadership roles in local, state
and national bar associations and activities, as outlined in question 9 above.
Finally, I have served on many committees. State commissions, and the boards of ajn-
profit organizations, all of which seek to improve the civil and criminal justice system,
as also outlined in questions 9 and 16 above.
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270
II. FINANCIAL DATA AND CONFLICT OF INTEREST rPUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits which
you expect to derive from previous business relationships, professional services, Tu-m
memberships, former employers, clients, or customers. Please describe the
arrangements you have made to be compensated in the future for any flnancial or
business interest.
If confirmed, I will resign from my present position as Judge of the Superior Court of
Fulton County and will withdraw all funds in my State of Georgia and Fulton County
retirement plans and transfer these funds to my existing, personal IRA account. I will
have no continuing financial interest in any pension or retirement plan or otherwise as
a result of any current or prior employment.
I have no financial or business relationships to sever or for which to be compensated.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and fmancial arrangements that are likely to present potential
conflicts-of-interest during your initial service in the positions to which you have
been nominated.
I will follow all guidelines and standards of the Code of Judicial Conduct for United
States District Court Judges. Among other procedures, I will not preside over any
matter, or hear the case of any party, which presents a conflict of interest, a potential
conflict of interest, or the app>earance of a conflict of interest.
I am not aware of any categories of litigation or flnancial arrangements which will
present potential conflicts of interest during my service, except as follows:
(a) I have not had a financial interest in my prior law firm of Powell, Goldstein,
Frazer & Murphy since 1984. However, to avoid even the appearaiKe of a
conflict, I. as a Sute trial judge for nine years, have not presided over cases
where my former law firm represents a party. I plan to continue that practice as
a federal Judge.
(b) My husband has an interest in ceruin limited businesses and real esute outlined
in our flnancial sutements in Exhibit 5. Of course, I would not preside over any
matter involving my husband's businesses or real esute.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your servke with the court? If so, explain.
None.
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271
List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
A copy of the financial disclosure repon, required by the Ethics in Government Act of
1978, is attached as Exhibit 4.
Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See Exhibit 5.
Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
No.
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272
m. GENERAL fPUBLlO
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "ever>' lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
In my law practice, I handled several pro bono civil and criminal cases as an attorney.
As a lawyer, I participated in Atlanta Legal Aid's Saturday volunteer lawyer program
where private attorneys staffed the Atlanta Legal Aid office on Saturday and accepted
four to five clients per Saturday.
During 1988-1991, I served on the Board of Directors of the Atlanu Volunteer Lawyers
FouiKlation ("AVLF"), which recruits attorneys to handle pro bono civil cases in Fulton
County and provides pro bono attorneys to over 1,000 low income clients in Fulton
County, Georgia.
During 1990-1992, 1 served on the Outreach Committee of my church which awards over
$100,000 in grants to numerous non-profit organizations assisting the disadvantaged.
During 1988-1991 , 1 volunteered as a Sunday School teacher for elemenury school age
children at Emmaus House, serving children from poor inner-city families.
During 1976-1979 1 served on the Board of Directors of Metro Atlanta Mediation Center.
Inc. , which operates The Bridge, a non-profit family counseling center providing services
to low income families.
During 1990 to the present, I have served as a member of the State Bar of Georgia
Correctional Facilities and Services Committee which, inter alia , promotes and oversees
the "BASICS" program offering employment workshops for inmates prior to release.
2. The American Bar Association's commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates - through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What have you done
to try to change these policies?
No.
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273
Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
Senator Sam Nunn of Georgia established a Judicial Selection Advisory Committee with
nine members, which was chaired by Atlanta lawyer Gordon Giffin of the firm of Long,
Aldridge & Norman. All interested persons were invited to apply. All applicants
completed an extensive questionnaire and submitted writing samples by May, 1993. All
applicants were interviewed by the entire Judicial Selection Advisory Committee in June,
1993. Thereafter, Senator Nunn personally interviewed numerous candidates for the two
vacancies on the United Slates District Court for the Northern District of Georgia.
Senator Nunn subsequently recommended me as a candidate for one vacancy to President
Bill Clinton Subsequently, I completed questionnaires for the Department of Justice,
the Federal Bureau of Investigation, and the American Bar Association. I was
interviewed in person by official representatives of the Department of Justice, the Federal
Bureau of Investigation, and the American Bar Association.
Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
Please discuss your views on the following criticism involving "judicial activism".
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather than grievance-
resolution;
b. A tendency by the judiciary' to employ the individual plaintiff as a vehicle for
the imposition of far-reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
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274
e. A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
Federal trial judges should, and generally do, decide individual cases based on the
relevant facts and applicable law, resolve only the grievance before them, and do not
employ an individual plaintiff as a vehicle for the imposition of far-reaching orders
extending to a broad class of individuals or institutions. In fact, various elements
combine to limit the role of the Federal judiciary. For example. Federal trial courts have
specific, limited jurisdiction as to what cases may be heard and decided. Standing and
ripeness requirements further limit what Federal trial courts can hear and decide. In
addition. Federal trial judges are bound by a large body of judicial precedent, plus
legislative enacunents significantly controlling the cases and issues to be decided.
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275
FINANCIAL DISCLOSURE REPORT KHnKsiHlS"-
{5 U.S.C.A. App. 6, tS101-X12)
1. r«raoe ttaportlsg (Laat ammm, tlrst, middl* lnlt.l«lj
HULL. FRANK MAYS
2. Court or Organization
United Stales District Court
for Northern District of Georgia
3. Dat* of Haport
Feb. 10, 1994
4. Tltl* [Xrtlcla III ^udgaa Indlcat* activ* or
aanlor atatua; Haglatxata ludgaa indlcata
lull- or part-tlsaj
United States District Court Judge - Active
Report ryp« (cnacK apprppflata 5Xp«)
Noalnatlon, Data „ '
Initial Annual Final
6. ftaportlog Parlod
1/1/93 - 12/31/93
1/1/94 - 2/10/94
7. Cb«ab«r* or Of fie* Xddx*«a
Judge. Fulion Superior Court
Atlanu Judicial Circuii
185 Ctnu^al Ave. SW., Room T4705
Atlanta Georgia 30303
8. On ui* baalB of tbo InforsAtloB conlainad Id tlila Raport. It
la, in ay opinloD, In coapllanca wltb appllcablo lawa and
ragulatlona
Raviawlny Offlcar SlgnaLura
IMPORTANT NOTES: The instrucaons accompanying this form must be followed. Complete all parts,
cbeddng the NONE box Tor each section where you have no I'eportable infonnation. Sign on last page
I. POSITIONS. (Reporting individual only; see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
I NONE (No raporubla poaltloaa)
Director. Board of Directors
American Judicature Society. Chicago, Illinois
Member
State of Georgia Commission on Family Violence
II, AGREEMENTS. (Reponing individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
H
NONE (Ho raportablo agr««aanta)
NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE
(Honoraria only)
SOURCE AND TYPE
1 I NONE (Ho raportabla aon-lnvaat«a&t Incoaa)
' 1/1/93 - 1/31/94
Slate of Georgia. Superior Courts of Georgia
(Judees Salan')
1/1/93 - 1/31/94
1/1 '93 - 1/3 r94
Board of Comnussioners of Fulton Count>'
fliirige's Salary '
GROSS INCOME
(yours, not spouse's)
70.948.28 (1993)
$ 6.112.00(1994)
29.933 74 (1993)
$ 2.550 00 (I9')4)
Lord. Aeck &. Sareeni. Inc (Architecis Salar>)
EXHIBIT 4
276
FINANCIAL DISCLOSURE REPORT (cont'd)
> of P«rBDn Importing
HULL. FRANK MAYS
tfXM of ftspart
Feb. 10. 1994
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indodcs those to spouse and dependent children: use the parentheticals "(S)' and '(DC)' to indlalc rcporlabie
reimbunemeots and gifts received by spouse and dependent children, mpectively. Sec pp.13-15 of Initmctioaa.)
SOURCE DESCRIPTION
NONE lao aocb r*porx«tol* r«labara«aaj)t« or gifts)
Mnt applirahlf imHyr Swtinn in?rh'>
n
OTHER GIFTS, (includes those to spouse and dependent children; use the parentheticals '(S)* aod '(DC)* to
indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructioas.)
D
SOURCE
NONE (Mo aoeta raporxabl* glfla)
DESCRIPTION
VALUE
Not applicable under Section 102(h)
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person respoosible
for liability by using the parenthetical *(S)' for separate liabilit> of spouse, *(J)'/orjoiiit liability of reportiiit
' liability by using the parenthetical *(S)' for separate liabilir> of spouse, *(J)' for jo
individual ana spouse, and '(DC)* for liability of a dependent child, ^ee pp.lfr'18 orlnstructioos.)
H
CREDITOR
NONE (ao r»perubl> llatillltlM)
DESCRIPTION
VALUE CODE*
VAua ooou:
J • $13,000 or !■••
a - s2So,ooi u ssoo.ooo
a • sis, 001 to sso,ooo
O • (900,001 to SI, 000, 000
SSO.OOl to sioo.ooo
Hoto UlAS $1,000,000
SlOO.OCl ts (IM.OOO
277
FINANCIAL DISCLOSURE REPORT (cont'd)
Naift« of P«r«on Rsportlng
HULL. FRANK MAYS
Date o; Raporx
Februan' 10. 1994
VII. INVESTMENTS and TRUSTS -- income, value, transactions.
and dependent children; see pp. 18-27 of Instructions.)
(Includes those of spouse
p««crlptlon of AAflac*
(iacludins tru*t MMt*)
IndicAta, wb*r« appllc«blB, own*r of
th« a*p«i DY UBUia Uia par»ntrt«UC«l
•(J)" for iolnt ovn»ritilp of raport-
Ing individual auc aoouae, "(S) for
aapaxar* o»^aralilp by ■pouaa, '(DC)"
for own^ranip by oapendant cblld.
Placa *(X)* afc«r oach aaaat
•xaapt froai prior dlacloaur*.
Incoee
djrlng
reporting
period
c.
Croas valoe
at end of
reporting
period
D.
Traoaactlona during reporting period
ID
Alt.,
(k-B)
12)
rent or
lot.)
(1)
Valoe:,
COOe'
(J-P)
12)
Value
Method^
Code'
(O-W)
bijiih,
BftTcei:,
r«d*«inp"
tlon)
i; not axenpt iroa di*=lo»ur« |
ille:
Hon to-
Day
!3)
Value,
code^
(J-P)
(♦)
code'
(»-B)
'5)
Ideatlty of
bayer/aelier
(11 private
traDaaetloo]
NO?^ (No raportabla
Incona, aaaeta, or
rranaactlonat
^ Real Esuie-:<-15: Woodhavcn RJ .NW
Allanl.n Fiilinr- Tniinn GA
None
N
W
^25^ Real Esiaie-37 S[one> Creek
Hilrtin Heart B-a'j((>n C^^ . SC
D
Rem
M
W
^ Undev Real Esiale-:: acres
Hen^^ Cr\ GA
None
L
W
'stocks/Bonds r IR.^ accnuni
B
Div/lnl,
CG
L
T
^Fulion Cr> Reiiremeni Plan
None
K
T
^Superior Ct JuL!|;t's Reuremtrni Plan
None
J
T
' Real F.stateLii] partner
Pine« od Ltd . Dekalh Cr\. GA
None
J
W
(S)
^25% stock in archiiectural firm
l^rd Aeck A: Sari^ent. Inc
No
tha:
le other
sala^^'
N
u
(S)
*401fK) Retircmeni Plan &. Trust*
I ord Aeck &. Sarcenl, In:
E
Div/bt/
CG
T
(S)
'%locks/Bonds in IRA accounl
Smith Ramr\ Shearscn
B
Div/lni
K
T
(S)
'^eal EsuieSlock in Co-Op Parking.
Inr Alljni.T Fiilinn Cn G^
D
D.v M
W
(S)
"■^eal Esiaie-Ltd Paruier
P^Tirhtree *;r ' iil Afiann Ci ^
None
K
w
(S)
^^cal E5Uic-::nO W Wcslev Rd
None
K
w
(S)
'^5% Real Esiaie. 37 Sicine> Creek
Hilmn Hrif' R-jiifor. rr\ SC
D
Rem
M
»
(D
:j^locks/Bonds, RH.A's (»o accls*
Smith n^m-j Shear^nn
E
Div/lnt/
CG
N
T
(D
r^'Slocks/Bonds. MHA'.s accl*
C
DivAni;
CG
K
T
(D
:5'Rcal Esiaie
None
M
w
(D
:^h.57c Real E<;iaic-37 Sinn-> Creek
Uilinn U^tM R/'atifiirf Cn ^('
D
Rent
M
w
(D
:^\e2\ Esuie-:200 V.' Wesle> Rd
None
L
w
20
I Inc»»a/Caln Cod»»: *»S1,DOO or in* B>S1,001 to 52,500 C-52,501 to 5,000 D«$5,001 to SIS, 000
(See Cc;. B: t D41 E-S15.001 I.O 550,000 F-S50,001 to SIOO.OOO C-S100,001 to 51,000,000 B-Morp thac Sl.OOO.OtK)
5 Value Cooea: J-SlS.OOC or leaa K.SlS.OOl to SlO.OOO L-S50,001 to 5100,000 H-SIOO.OOI to 5250,000
[See Col. CI 1 031 l»-S250,rol to 5500,000 0-5500,001 to 51. 000. 000 P-Wore -Ibt. 51.000.000
3 Valne Heuiod Codea: Q-Ap?ralaal R-Coat (real estate only) S-Aaaeaament T-C«Bb/M*rket
(See Col. C2) U-Book Value v-otber w-Eatiaat«d
'Sc; auached Iim nf smck'-'hond'^
278
FINANCIAL DISCLOSURE REPORT (cfflDI'd)
• of Parson Raporting
HULL. FRANK MAYS
D«ts Of luport
Feb. 10, 1994
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate part of Report.)
As a current Judge of the Superior Court of Fulion County. Georgia. I participate in retirement plans with the Sute of
Georgia and Fulton County listed in items VII (5) and (6). Upon becoming a United States District Court Judge. I will
resign my present judgeship, withdraw those retirement funds, and transfer them to my IRA account in item Vn (4).
IX. CERTIFICATION.
Id compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at tbe time after reasonable inquiry. I did not perform any adjudicatory
function in any litigation during tbe period covered by this report in which I. my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c). in tbe outcome of such litigation.
I certify tbal all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to tbe best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the accepunce of gifts which have been
reported are in compUance with tbe provisions of 5 U.S.CA. app. 7. § 501 et. seq.. 5 U.S.C § 7353 and Judicial Conference
regulations.
Signature ,
" ^ .fi^ ^Tiy hfiuf
Date
10^ 1994
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, { 104, AND 18 U.S.C i 1001.)
■'■■"'■d .:'■' ?^' ■:--^'::'^' .
■ . <■ ; -i?..
FIUNO INSTRUCTIONS:
Mail signed original and 3 additional copies to: Jodidal Ethic Committee
AdministiatWc Otfioe of the
United Sutes Courts
Washington. DC 20544
-■• ;'^';
279
IN THE SUPERIOR COURT OF FULTON CCUNTY
STATE OF GEORCU
n/n
A /ykiyLyQ
V7i/Au\
CIVIL ACTION FILE NO. J^O^W^J
ORDER
The above case coming en for hearing, afcer
having been published ^i provided by law, and.no appearance
having been made, the same is distai^sed for want of prose-
cution without prejrraice. / y
This /'y day of
y
.^^^^njP y . 1988.
/t
JUDGE CLARENCE COOPER /^
Fulton Superior Court, A.J.C.
EXHIBIT 6
280
IN THE SUPERIOR COURT OF FULTON COUNTY f//77r7r~--
STATE OF GEORGIA
JERRY LARRY COLLIER,
Petitioner,
V.
DAVID C. EVANS, LANS ON
NEWSOME, NEAL B. CHILDERS ,
and THE HONORABLE FRANK
M. HALL,
Respondents .
CIVIL ACTION
NO. E-07920
ORDER
This matter came on before this Court on February 25, 1993,
for oral argument on Petitioner's request for mandeunus relief.
The gravamen of Petitioner's assertion was that the
agreement that he entered into in Civil Action No. D-76039 was
invalid and should be set aside. Counsel for the Respondents
denied there was any impropriety in the agreement, but agreed
to vacate the judgment in said case if the Petitioner would
return the $750.00 earlier paid to him and to a trial by jury.
Petitioner agreed to do so and, hence. Petitioner's request tor
mandeunus relief is denied as moot.
It is hereby ORDKRKD that the Petitioner has until
* March 31, 1993, to return to the State Law Department the sum
of $750.00 which was tendered to him in settlement of Civil
Action No. D-76039. No extensions of time shall be given to
the Petitioner to return the money. If the money is returned
281
in a timely fashion, Civil Action No. D-76039 can be re-opened.
m the event the Petitioner fails to return the money to the
State Law Department by March 31, 1993, the matter will be set
for further hearing.
This order is based upon an offer made by the Respondents in
open Court on February 25, 19?'3-
So ordered, this^>^h day of March, 1993.
282
IK THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATIANTA DIVISION
JEFFREY MILLS
vs.
HONORABLE FRANK M. HULL
l:92-CV-1463-RCr
O R D E B
This action is before the court on plaintiff's various notions
[il7-l] I#18-l] [120-1] and Ii21-1),' and defendant Judge Frank M.
Hull's motion for reconsideration [125-1] or, in the alternative,
for summary judgment [t25-2]. All motions are unopposed.'
p^gkground
Plaintiff, proceeding pro se . alleges that Judge Hull declared
plaintiff incompetent and ordered him institutionalized in
violation of his constitutional rights. Judge Hull, asserting the
doctrine of judicial immunity, moved to dismiss plaintiff's action.
This court denied Judge Hull's motion in light of plaintiff's pro
se status, plaintiff's broad allegations of wrongdoing, and the
very nigh standard for succeeding on a motion to dismiss. See
Order of April 16, 1993 [April Order], at 1-3.
^Each of plaintiff's motions attempts to complain of
wrongdoing by Judge Hull. However, the motions recite
incomprehensible and/or irrelevant information without requesting
relief.
^Failure to file a response shall indicate that there is no
opposition to the motion. LR 220-l(b), NDCa.
283
Discussion
Judge Hull requests that the court reconsider its April Order
and grant the notion to dismiss. The court finds a grant of
summary judgment a more appropriate alternative. Under Fed. K.
Civ. P. 56, the court should grant a notion for sununary judgaent
where "there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of law." The
movant carries her burden by showing the court that there is "an
absence of evidence to support the nonmoving party's case."
Celotex co rn, v. Catrett . 477 U.S. 317, 325, 106 S. Ct. 2548, 2554
(1986) .
The evidence submitted indicates that after plaintiff vas
arrested for violating the Georgia Controlled Substances Act, his
case was assigned to Judge Hull. Affidavit of Judge Frank M. Hull,
at 1 2-4. Based on plaintiff's indigence, Judge Hull appointed a
lawyer to represent plaintiff. Id. at J 5. Plaintiff's appointed
counsel requested a forensic services examination to determine
plaintiff's mental state. Id. Judge Hull ordered that
examination. Id. The evidence also shows that Judge Hull
performed only judicial actions with regard to plaintiff. Id. «t
8. Plaintiff has offered nothing to indicate that Judge Hull acted
outside of her official capacity or that Judge Hull acted outside
her jurisdiction.
"Judicial immunity is an absolute immunity; it applies even
where a judge acts maliciously." Harris v. Deveaux. 780 F.2d 911,
914 (11th Cir. 1986). A judge is entitled to such immunity
284
provided: (1) the judge dealt with the plaintiff in a judicial
capacity, and (2) the judge did not act "in the *clcar absence of
all jurisdiction.'" Id. (quoting Stuwp v. Soartatian . 435 U.S. 349,
357, 9B S. Ct. 1099, 1105 (1978)).
1. Judicial Capacity
Judge Hull's affidavit indicates: (1) that Judge Hull
performed a typical judicial function in ordering plaintiff to
undergo a mental exaoination; (2) that Judge Hull acted in open
court; (3) that she ordered the evaluation because plaintiff's
criminal case was pending before her; and (4) that the actions of
which plaintiff complains arose directly from plaintiff's visit to
Judge Hull in Judge Hull's official capacity. Plaintiff has
offered no evidence to the contrary. Thus, defendant has
established that she acted in her judicial capacity.
2. Jurisdiction
This court can find that Judge Hull acted in the clear absence
of all jurisdiction only "if [Judge Hull] completely lack[ed)
subject matter jurisdiction." Harris . 780 F.2d at 916 (citing
Dvkes V. Hosemann . 776 F.2d 942 (11th Cir. 1985) (en banc)). It is
undisputed that Judge Hull acted within her jurisdiction when she
granted plaintiff's criminal counsel's request for a mental
evaluation of plaintiff.
Therefore, the court finds that Judge Hull is entitled to
judicial immunity and, correspondingly, grants Judge Hull's motion
for summary judgment.
285
Accordingly, plaintiff's various notions which atteapt to
assert wrongdoing, but which raguest no relief [fl7-I] [118-1]
[#20-1] and [121-1] are DENIED. Defendant Judge Frank M. Hull's
motion to reconsider [#25-1] is DENIED as MOOT, and her alternative
notion for sumaary judgment [#25-2] is GRANTED. The Clerk is
DIRECTED to dismiss this action as to Judge Frank Hull.
SO ORDERED
, this t^\ day of June, 1993.
/^^^U^
:HAR£> C. FREE
Sf NIOR UNITED STATES DISTRICT JUDGE
- - 'S93
286
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
lARRY BRANT SARGEANT
vs.
FULTON COUNTY, FULTON COUNTY
JAIL PERSONNEL, FULTON COUNTY
MORMONS
FILED IN' CLERKS CFFii
u.sar. A-v
JUL051S9C
CIVIL NO. 1:90-CV-1181-ODE
9RPEP
This civil rights action is before the court for a
frivolity determination pursuant to 28 U.S.C. S1915(d).
This case purportedly arose after Fulton County police
officers arrested Plaintiff and seized his car on March 23,
1990.' Plaintiff, acting pro se, claims this arrest was made
without a warrant or probable cause and therefore constitutes an
unlawful search and seizure. Plaintiff also alleges that he was
attacked, apparently just prior to his arrest, by elders of the
Mormon Church, who were not arrested. In his initial complaint.
Plaintiff, a self -described "Holy Profit of God, since 1962 and
the President of the Church of Jesus Christ of Latter Day Saints
since 1951," seeks one billion dollars in real damages and one
billion dollars in punitive damages.
In an amended complaint. Plaintiff further alleges that
at 11:00 A.M. on March 23, 1990, he was booked into the Fulton
County Jail and confined with a large number of inmates in a
'plaintiff apparently is presently incarcerated at the
Fulton County Jail in Atlanta, Georgia.
287
small holding cell. Plaintiff claims he became ill from the
smoke. He asserts he begged the guards for relief and around
midnight he was taken to another room, where he did not receive
treatment for his vomiting condition, which was caused by a
bleeding ulcer. Plaintiff states that he was forced to wait in
the room until the guards finished their card game at 2:00 A.M.
As relief. Plaintiff requests that the Defendant jail personnel
each be fined in the amount of $1000.00 and imprisoned for one
year.
In his additional amended complaint. Plaintiff asserts
that the Defendant Mormons evaded paying income taxes. He
requests that this court sentence them to serve life imprisonment
at Fort Levenworth and order them "hung on the Haliyards [sic]
of the U.S.S. Constitution and towed out off Plymouth Rock, seven
miles and Drawn and Quartered and Fed to the Fish, by the
Destroying Angel of God, the Holy Ghost and Holy Angel, known as
the Lion of the Tribe of Judah."
On June 1, 1990, Plaintiff filed an additional
complaint alleging that he was brought to court on May 7, 1990,
but not permitted to appear and that he was appointed a public
defender after he pleaded not guilty. He asseirts that a
Magistrate set his bail at $800.00, but was told that it had been
increased to $2,800.00. Plaintiff alleges that he was brought
to court on June 1, 1990. He claims that Judge Frank Hull
offered to release him on time served under a plea of guilty.
Plaintiff further avers that Judge Hull found him incompetent to
288
stand trial and ordered hin sent to St. Regis Medical Center for
thirty days. As relief. Plaintiff requests that the court fine
Judge Hull $10,000 for violating his constitutional rights.
Under 28 U.S.C. S191S(d), the court is authorized to
dismiss an in forma pauperis complaint "if satisfied that the
action is frivolous or malicious." Neitzke v. williains . 490 U.S.
, 109 S. ct. 1829 (1989). Where the legal theory or factual
contentions asserted in the complaint lack an arguable basis, a I
I
claim is frivolous. Id. Having read and considered Plaintiff's '
complaints, the court finds them frivolous. ;
Under the circumstances stated in the complaints, the '
venerable common law tenet of judicial immunity applies. Tmbi^^r j
v. Pachtman . 424 U.S. 423 n. 20 (1976). Insofar as the complaint |
may seek review of any determinations of a superior or municipal |
court of the State of Georgia, in this procedural posture, the
court lacks subject matter jurisdiction. This court possesseB
"no power whatsoever to sit in direct review of state court
decisions." District of Coluinbia Court of Appeals v. Feldman.
460 U.S. 462 (1983) (quoting Atlantic Coastline Railroad Co. v.
Leeowotive Engineers . 398 U.S. 281 (1970)).
As to the claims against the Fulton County Jail
personnel. Plaintiff has chosen an inappropriate forum in which
to seek the relief he requests. However, construing the pro ■•
complaint in the broadest possible light, it contains facts which
arguably may state a claim, such that dismissal at this stage of
the proceedings would be inappropriate. Neitzke at 1829
289
(standard under 28 U.S.C. SX9I5(d} not co-equal to Fed. R. Civ. P.
12(b)(6)).
As to the tax related allegations against the un-naaed
Horaon elders, Plaintiff lac)cs standing to pursue that clain.
£££ Valley Forae College v. Americans Dnited. 454 O.S. 464
(1982). Insofar as the complaint could possibly be construed to
assert any other claims against these Defendants, because
Plaintiff does not allege that these individuals are state actors
or provide any basis for diversity jurisdiction, the court
declines to exercise jurisdiction.
Accordingly, Plaintiff's claims against Judge Hull and
the Mormon elders are DISMISSED as frivolous pursuant to 28
U.S.C. s 1915(d) . The claims against Fulton County and the Fulton
County Jail may proceed.
The Clerk is DIRECTED to forward .sufficient United
»■- -.
States Marshal Service forms and summons foms to Plaintiff.
Upon receipt. Plaintiff is hereby ORDERED to complete the tons
and return them to the Clerk within thirty (30) day* from the
entry date of this order so that process may be served on
Defendants. This action shall proceed no further until these
forms are returned. A failure to timely comply with this order
will result in a dismissal of this action pursuant to L.R. 230-
3. Should Plaintiff fail to so comply, the Cler)c is DIRECTED to
resubmit this case to the Magistrate after the aforementioned
time.
290
Plaintiff is further DIRECTED to serve upon Defendants
or their counsel a copy of every additional pleading or other
docuaent he files in this aatter. He shall include with each
filing a certificate stating the date on which he Bailed an
accurate copy of that document to Defendants or their counsel.
This court shrll disregard any papers Bubnitted which have not |
I
been properly filed with the ClerJc or do not include the I
certificate of service. Plaintiff is DIRECTED to keep the court |
i
and Defendants informed of his current address at all times
during the pendency of this action.
SO ORDERED, this 5~ day of July, 1990.
ORINDA D. EVANS ..-•--
UNITED STATES DISTRICT Judge
. ■: i
SJ
.0
291
FINANCIAL STATEMENT
Frank M Hull*
ASSETS
LIABILITIES 1
Cash on hand and in banks
U.S Govemmenl secunlies
Usied secunties
Uolisied secuniies
Accouou and notes receivable:
Due from relatives, friends, others
Real estate owned
100% interest in pnmar> residence
3452 Woodhaven Road, N.W S450.000
Atlanta, Georgia
25% interesi in vacaiion/renial home
37 Stoney Creek Road $ 50.000
Hilton Head Island, SC
Interesi in Pinewood Ltd. P'ship
apanmeni complex $ 10.000
Dekalb Count) . Georgia
lOOS inieresi in 22 acres
undeveloped propeny
Henry County, Georgia S 65.000
Real estate mortgages receivable
Autos and other personal propeny
1989 Ford Taurus 5,000
1986 Chevrolet Suburban 2.000
An. jewelry, furniture 35.000
Cash value - life insurance
Other assets - itemize;
IRA account (statemeni attached)
Fulton County Retirement Plan
Superior Coun Judges Retirement Plan
Total assets
$ 3.324
Notes payable to banks - secured
S
Notes payable to banks - unsecured
Notes payable to relatives
Notes payable to others
Accounts and bills due
Unpaid income tax
575,000
Other unpaid tax and inlerest
Real estate mortgages payable
Chattel mongages and other liens payable
Other debts - itemize:
30.000
11.000
42,000
55,660
38.889
Total liabilities
$41,000
6.373
Net worth
$680,246
$721,246
Total liabilities and net worth
1721,246
CONTINGENT LIABILITIES
GENERAL INFORMATION |
As endorser, comaker or guarantor
None
Are any assets pledged? (Add schedule)
No
On leases or conirarts |
None
Are you defendant in any suits or legal actions?
No
Legal Claims
None
Have you ever taken bankruptcy?
No
Provision for Federal Income Tax
None
Other special debi
None
1
'These are assets in name oj frank M Hut', and do not include assets in name of husband Antonm Aeck ('Tony')- See separate Fuuutcial Staumeni oj
husband attached hereto-
EXHIBIT 5
292
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FINANCIAL STATEMENT
Antonin Aeck*
ASSETS
LIABILITIES
Cish on band and in banks
U.S. Covemmeni securities
Usied secuniies
1 Unlisied secunties ■ 25% siock in
Lord. Aeck & Sargent, Inc.
Accounu and notes receivable:
Due from relatives, friends, otben
Real estate owned
33VS% interest in two acre
residential lot $ 40.000
Peactatree South Ltd - owns
parking lot, Atlanta. Georgia S 26.000
Co-op Parking. Inc owns
parking lot. Atlanta. Georgia SI02.000
25% interest in vacation/rental home
1 37 Sione> Creek Road S 50.000
1 Hihon Head Island. SC
Real estate mortgages receivable
Autos and other personal propeny
1985 Mercedes $ 7.500
1986 Chevrolei Suburban 2.000
Alt, jewelry, furniture 35,000
Cash value - life insurance
Olber assets itemize:
IRA account (statement attached)
401(k) Retirement Plan & Trust
(staiemeni attached)
Total assets
$ 5.000
Notes payable to banks - secured
%
Notes payable to banks - unsecured
Notes payable to lelaiives
223.344
Notes payable to others
Accounu and bills due
Unpaid income tax
218.000
Other unpaid tax and interest
Real estate mortgages payable
Chattel mongages and other liens payable
Other debts - itemize:
11,000
44,500
36.369
501.586
Total liabilities
S ll.OOO
Net wofih
$1,017,799
Si. 028.799
Total liabilities and net worth
$1,028,799
CONTINGENT LIABILfTlES |
GENERAL INFORMATION
As endorser, comaker oi guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Tax
None
Arc any assets pledged? (Add schedule)
No
None
Arc you defendant in^any suits or legal actions?
No
None
Have you" ever taken bankruptcy?
No
None
Other special debt
None
Frank M Hull aiiached hereto
EXHIBIT 5
294
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FINANCIAL STATEMENT
Richard Hull Aeck
(Minor Child)
ASSETS
LIABILITIES
Cash on hand and in banlu
U.S. Govemmeni securities
Listed securities
Unlisted securities
Accounu and notes receivable:
Due from relatives, friends, others
Real estate owned
Thirty acres undeveloped propeny
in Highlands. North Carolina S 60.000
2S% interest in vacation/rental home
37 Sioney Creek Road $ 50,000
Hilton Head Island. SC
33V4% interest in two acre
residential lot $ 40.000
Real estate mortgages receivable
Autos and other personal propeny
Cash value - life insurance
Other asseu - itemize:
Trust account (staiemeni attached)
Guardianship account (statement attached)
Total assets
$ 1.500
Notes payable to banks - secured
Notes payable to banks - unsecured
Notes payable to relatives
Notes payable to others
Accounts and bills due
Unpaid income tax
Other unpaid tax and interest
Real estate tnortgages payable
Chattel mongages and other liens payable
Other debts - itemize:
i
1 "
500
150.000
36.319
275.248
Total liabilities
S
Net worth
$463,567
$ 463.567
Total liabilities and net worth
$463,567
1 CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Ta;t
Other special debt
None
Are any assets pledged? (Add schedule)
No
None
Arc you defendant in any suits or legal actions?
No
None
Have you ever taken bankruptcy?
No
None
None
EXHIBIT 5
297
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FINANCIAL STATEMENT
Molly Hull Aeck
(Minor Child)
ASSETS
LIABILITIES 1
Cash on band and in banks
U.S. Govemmeni securiiies
Listed securiiies
Unlisted securities
Accounts and notes receivable:
Due from relaiives. friends, others
Real estate owned
Thirt) acres undeveloped property
in Highlands, North Carolina S 60.000
33V4% interest in two acre
residential lot in
Atlanu. Georgia S 40,000
Real estate mongages receivable
Aulos and other personal property
Cash value - life insurance
Other assets - itemize:
Trust account (statemeni attached)
Total assets
$ 500
Notes payable to banks - secured
$
500
Notes payable to banks - unsecured
Notes payable to relatives
Notes payable to others
Accounts and bills due
Unpaid income tax
100.000
Other unpaid tax and interest
Real estate mongages payable
Chattel mongages and other liens payable
Other debts - itemize:
45,184
Total liabilities
$
Nei worth
S146.184
$146,184
Total liabilities and net worth
SI46.I84
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Tax
Other special debt
None
Are any assets pledged? (Add schedule)
No
None
Are you defendait in any suits or legal actions?
No
None
Have you ever taken bankruptcy?
No
None
None
EXHIBIT 5
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UNITED STATES SENATE
Committee On The Judiciary
Washington, DC 20510-0275
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Mary Mona Lisi
Address: List current place of residence and office
address(es) .
Home :
355 Stone Ridge Drive
East Greenwich, RI 02818
Office:
Office of Disciplinary Counsel
Fogarty Judicial Annex
24 Weybosset Street
Providence, RI 02903
Date and place of birth.
September 4, 1950
Providence, RI
Martial Status (include maiden name of wife, or
husband's name). List spouse's occupation, employer's
name and business address(es).
Married.
Stephen J. Reid, Jr., Attorney
Blish & Cavanagh
Commerce Center
30 Exchange Terrace
Providence, RI 02903
Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
University of Rhode Island
Kingston, Rhode Island
September, 1968 - June, 1972 B.A. 1972
302
University of Rhode Island
Kingston, Rhode Island
September, 1973 - August, 1974
Course work in Master's Program.
No degree awarded; I left to attend
law school
6.
Temple University School of Law
Philadelphia, Pennsylvania
August, 1974 - May, 1977 J.D.
1977
National College for Criminal Defense
University of Houston
Houston, Texas
May, 1980 - June, 1980
Certificate of Completion Trial Practice I
6/80
Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnership, s institutions and
organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer,
director, partner, proprietor, or employee since
graduation from college.
9/72-6/73
6/73-8/73
8/73-8/74
9/74-5/76
9/75-5/76
Prout Memorial High School
Wakefield, Rhode Island
History Teacher
Scholastic International
New York City, New York
Tour Chaperone
University of Rhode Island
Kingston, Rhode Island
Hall Director
University of Pennsylvania
Veterinary Hospital
Philadelphia, Pennsylvania
Receptionist
Professor Jerome Sloan
Temple University School of Law
Philadelphia, Pennsylvania
Law Clerk
5/76-8/76
US Attorney
Providence, Rhode Island
Law Clerk
303
9/76-5/77
9/11-10/11
10/77-7/81
8/81-10/82
8/81-10/82
10/82-12/87
1/88-10/90
10/90-present
US Attorney
Philadelphia, Pennsylvania
Law Clerk
RI Hospital Trust Bank
Providence, Rhode Island
Paralegal
Rhode Island Public Defender
Providence, Rhode Island
Assistant Public Defender
Office of the Child Advocate
Providence, Rhode Island
Assistant Child Advocate
Private Law Practice
Providence, Rhode Island
Office of the Court Appointed Special
Advocate
Rhode Island Family Court
Providence, Rhode Island
Director
Office of Disciplinary Counsel
Rhode Island Supreme Court
Providence, Rhode Island
Deputy Disciplinary Counsel
Office of Disciplinary Counsel
Rhode Island Supreme Court
Providence, Rhode Island
Chief Disciplinary Counsel
Military Service: Have you had any military service?
If so, give particulars, including the dates, branch
of service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards: List any scholarships,
fellowships, honorary degrees, and honorary society
memberships that you believe would be of interest to
the Committee.
1986 Named one of the "Providence 350" in recognition
of my activities as a children's rights advocate
1987 Recipient of the "Meritorious Service to the
Children of America Award" from the National Counsel
of Juvenile and Family Court Judges
304
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which
you are or have been a member and give the titles and
dates of any offices which you have held in such
groups.
American Bar Association
Rhode Island Bar Association
Rhode Island Women's Bar Association
(Vice President 1988)
Rhode Island Women Lawyers Association
(President 1981)
National Court Appointed Special Advocate Association
(Treasurer 1984-86; President 1986-88; Board Member
1988-1992)
National Organization of Bar Counsel
10. Other Memberships: List all organizations to which
you belong that are active in lobbying before public
bodies .
Urban League of Rhode Island
Please list all other organizations to which you
belong.
None
11. Court Admission: List all courts in which you have
been admitted to practice, with dates of admission and
lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the sae
information for administrative bodies which require
special admission to practice.
Rhode Island* admitted 10/12/77
United States District Court, Rhode Island
admitted 11/8/77
Massachusetts* admitted 6/9/78
•Please note I am listed as voluntary inactive since I
am prohibited from practicing law outside the office
of Disciplinary Counsel.
12. Published Writings: List the titles, publishers, and
dates of books, articles, reports, or other published
material you have written or edited. Please supply
one copy of all published material not readily
available to the Committee. Also, please supply a
copy of all speeches by you on issues involving
constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
None.
«
305
13. Health: What is the present state of your health?
List the date of your last physical examination.
Excellent
January, 1993
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was
elected or appointed, and a description of the
jurisdiction of each such court.
None.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions
you have written; (2) a short summary of and citations
for all appellate opinions where your decisions were
reversed or where your judgment was affirmed with
significant criticism of your substantive or
procedural rulings; and (3) citations for significant
opinions on federal or state constitutional issues,
together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were
not officially reported, please provide copies of the
opinions .
N/A
L6. Public Office: State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such
positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for
elective public office.
Yes. In February, 1991, I was appointed by Governor
Bruce Sundlun to serve on the Select Commission to
Investigate the Failure of RISDIC ("Commission"). The
Commission was created by an act of the RI
Legislature. Its purpose was to investigate the
failure of the private insurer of credit union and
bank deposits which result din the closure of 45
financial institutions by the Governor. The
Commission had subpoena power, held confidential
investigative depositions, and televised public
hearings. I served on the Commission from February,
1991 until December, 1992 when we issued our final
report. I served on the Commission without
compensation.
306
17. Legal Career:
b.
Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge, and if
so, the name of the judge, the court, and the
dates of the period you were a clerk; No
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies
with which you have been connected, and the
nature of your connection with each;
1. What has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
2. Describe your typical former clients, and
mention the areas, if any in which you have
specialized.
October, 1977 - July, 1981
Rhode Island Public
Defender
100 North Main Street
Providence, RI 02903
From October, 1977 to March, 1980, I was an Assistant
Public Defender assigned to the Juvenile Division. I
represented indigent juvenile offenders in delinquency
actions and indigent adult offenders charged with
civil child abuse and neglect. From March, 1980 to
July, 1981, I was supervising attorney of the Juvenile
Division. In addition to maintaining a full caseload,
I supervised four attorneys, two clerical workers, and
an investigator.
August, 1981 - October, 1982 Assistant Child
Advocate (part-time)
Office of the Child
Advocate
260 West Exchange Street
Providence, RI
I was responsible for reviewing placements of children
in the care of the Department for Children and Their
Families, and representing the Child Advocate before
the Family Court. I left the Child Advocate's office
when I was appointed Director of the CASA program.
307
August, 1981 - October, 1982 Private Practice
My practice consisted primarily of guardianships in
domestic relations cases before the Family Court.
Office Address:
27 Prudence Avenue
Providence, RI
October, 1982 - December, 1987 Director
Court Appointed
Special Advocate
Program
Rhode Island Family
Court
One Dorrance Plaza
Providence, RI 02903
I had full administrative responsibility for the CASA
Program. I supervised a staff of five attorneys,
three social workers, three coordinators, and four
secretaries. I also recruited and trained more than
200 volunteer CASAs who together with our professional
staff represented the best interests of abused and
neglected children before the Family Court. I
maintained a case load which required frequent
appearances before the Rhode Island Family Court.
January, 1988 - October, 1990 Deputy Disciplinary
Counsel
Rhode Island Supreme
Court
250 Benefit Street
Providence, RI 02903
I was responsible for the investigation and
presentation of complaints to the Disciplinary Board.
I also prosecuted several formal matters before the
Board. In September, 1989, upon the resignation of
former Judge Fuyat, and at the direction of the Chief
Justice, I conducted the investigation of Judge
Fuyat 's borrowing money from attorneys who appeared
before him. I drafted the petitions for formal
disciplinary action, prepared memoranda, and tried
each of the 30 cases presented to the Disciplinary
Board and the Rhode Island Supreme Court.
308
October, 1990 - present Chief Disciplinary
Counsel
RI Supreme Court
24 Weybosset Street
Providence, RI 02903
I have full administrative responsibility for the
Office of Disciplinary Counsel. I supervise four
attorneys, a confidential investigator, and four
secretaries. I continue to try formal disciplinary
matters before the Board and to present cases before
the Supreme Court.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the frequency
of your appearances in court varied, describe
each such variance, giving dates.
Frequently
2. What percentage of these appearances was in:
(a) federal courts
0%
(b) state courts of record;
100%
(c) other courts
0%
3. What percentage of your litigation was:
(a) civil
1977-81 30%
1981-present 100%
(b) criminal
1977-81
70%
309
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
From October, 1977 through July, 1981, I
served as an Assistant Public Defender. My
caseload included status offenses,
misdemeanors, felonies, and civil child abuse
and neglect cases. I conservatively estimate
that I tried at least 100 cases to conclusion,
including a first degree murder case. With
the exception of the murder trial, I was sole
counsel.
From October, 1982 through December, 1987, I
represented abused and neglected children in
trials and review hearings before the RI
Family Court. My representation in those
cases was as a guardian ad litem. In that
capacity, I participated fully in trial,
conducting direct and cross-examination of
witnesses. Again, in this capacity I
conservatively estimate having participated in
at least 50 trials as sole counsel.
From 1988 to the present, I have tried
approximately 40 attorney discipline cases
before the Rhode Island Supreme Court
Disciplinary Board. (Board) The Board is an
administrative adjudicative body. Contested
matters are tried in accordance with the
Board's Rules of Procedure and the Rhode
Island Rules of Evidence. In addition, I
appear before the Rhode Island Supreme Court
on a regular basis at disciplinary show cause
hearings .
5. What percentage of these trials was:
(a) jury
0%
(b) non-jury
100%
310
18. Litigation: Describe the ten most significant
litigated matters which you personally handled. Give
the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule
summary of the substance of each case. Identify the
party or parties whom you represented; describe in
detail the nature of your participation in the
litigation and the final disposition of the case.
Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge
or judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
1) Carter v. Kritz 560 A2d 360 (RI 1989)
Kritz is an attorney misconduct case. The case is
significant because it is the first case in RI brought
against an attorney for sexual misconduct with his
clients. I prosecuted this case for the office of
Disciplinary counsel. I interviewed each of the
victims and prepared them to testify. On the day of
the hearing, Mr. Kritz admitted all factual
allegations and rule violations. The Board found that
Mr. Kritz had used his position as an attorney to take
advantage of his clients and recommended that he be
suspended from the practice of law for not less than
one year. The Supreme Court concurred.
Dates of trial: 11/8/88; 1/18/89; 3/6/89
Judge: This case was tried before a three-member
panel of the RI Supreme Court Disciplinary
Board. The panel members were: Marifrances
McGinn, Esquire, Robert Kilmarx, Esquire, and
N. Jameson Chace, Esq.
Co-counsel: None
Respondent's counsel: William A. Dimitri, Jr., Esq.
733 Douglas Avenue
Providence, RI 02908
(401) 273-9092
10
311
2) Carter v. Peotrowski 568 A2d 1032 (RI 1990)
Upon my appointment as Deputy Disciplinary Counsel, I
was assigned to conduct an investigation of Mr.
Peotrowski 's fitness to practice law in conjunction
with his Petition for Reinstatement. Mr. Peotrowski
had been disbarred in 1982 and had served a prison
term for obtaining money under false pretenses and
forgery. My investigation revealed that Mr.
Peotrowski had, since his disbarment, engaged in the
unlawful practice of law, had used the name of a
fictitious or deceased person who was purported to
have given him powers of attorney in connection with
several petitions filed in the Courts, and he had
misrepresented facts to the courts. I presented all
of this information to the Board during a three day
trial. In addition, I tried three other petitions
alleging misconduct which had remained in a pending
status since the order of disbarment entered. The
Board found that Mr. Peotrowski 's readmission would be
detrimental to the integrity of the bar and to the
public interest. In its recommendation to the Court,
the Board advised that not only should the Petition
for reinstatement be denied, but that Mr. Peotrowski
never be allowed to practice law again. The Court
denied the Petition for Reinstatement.
This case is significant because it sets forth the
standard for readmission after disbarment. As a
result of my work on this case, I developed a
Reinstatement Protocol for the office of Disciplinary
Counsel. The Protocol is used in every reinstatement
case to insure a thorough, uniform investigation and
report.
Dates of trial: 3/16/89; 4/5/89; 4/20/89
Disciplinary Board Members: Ralph P. Semonoff
(deceased)
N. Jameson Chace, Esq.
James V. Aukerman, Esq.
Co-counsel: None
Respondent's Counsel: John H. Ruginski, Jr., Esq.
1 Park Row
Providence, RI 02903
(401) 272-7966
11
312
3) Lisi V. Hines 610 A2d 113 (RI 1992)
This is an attorney discipline case. Mr. Hines was
under suspension at the time of the trial of this
matter. In this case, Mr. Hines had failed to turned
over to his client $10,000 which he was holding in
escrow. Mr. Hines admitted that he had converted the
money to his own use. Mr. Hines did make restitution
prior to the trial. I argued that the proper sanction
should be disbarment, especially in view of the fact
that Mr. Hines was currently under suspension for two
other findings of misconduct. The Board and the court
agreed. Mr. Hines remains disbarred.
Dates of trial: 7/16/91
Disciplinary Board Members: Carol A. Zangari, Esq.
Diane Finkle, Esq.
R. Kelly Sheridan, Esq.
Co-counsel: None
Respondent's Counsel: Mr. Hines was pro se . Current
address and phone number are
unknown.
12
313
4) In Re Crystal. J oshua and Jacqueline A. 448 A2d 1226
(RI 1982)
This case was a civil child dependency case based on
the mother's psychiatric condition. The trial Judge
found no evidence of abuse or neglect but did find
that the children were dependent. The basis of the
Judge's finding was that the mother had had a history
of mental disorder and that there was a great
possibility that she would have another psychotic
episode. A psychiatrist testified that the mother
could not adequately care for her children while she
experienced such episodes.
I represented the mother in this case. The trial
Judge found that there was a "strong possibility" that
the children would suffer physical and mental harm if
returned to the mother even though he agreed that the
mother had made progress, that she was trying to
improve the situation, and that she had enlisted the
assistance of her own father to care for the children.
On appeal, the Supreme court affirmed the trial
Judge's finding. This case refined the standard in
dependency cases of what constitutes evidence that the
child is "likely to suffer physical and/or emotional
harm. "
Dates of trial: July, 1980
Judge and Court: Hon. Robert G. Crouchley, RI Family
Court (Ret.)
Co-Counsel: None
Counsel for the State: Thomas M. Bohan
Department for Children Youth &
Family
610 Mount Pleasant Avenue
Providence, RI
(401) 457-4718
13
314
5) Tn Re Francis J 456 A2d 1174 (RI 1983)
Francis was 17 years old at the time she was charged
with first degree murder. Because of her age, she was
tried in the RI Family Court as a juvenile. Francis
was alleged to have stabbed to death a woman outside
the door of Francis' apartment. Francis gave a
statement to the police admitting that she had stabbed
the decedent. At trial, Francis testified that
another person stabbed the woman and that individual
had asked Francis to assume responsibility because she
would be treated less harshly as a juvenile than the
other person would be as an adult.
The trial Judge did not find Francis credible. He
adjudicated her delinquent by reason of an act that
would have constituted murder if committed by an
adult. Francis was sentenced to the Training School
until her 21st birthday.
A significant issue we raised in this case was whether
Francis' confession should be suppressed on the
grounds that she had not had an opportunity to consult
with her mother in private before giving her statement
to the police. The Supreme Court held that the
confession was admissible and denied the appeal.
I and another assistant public defender worked on this
case. During trial, I conducted the direct
examination of Francis.
Date of trial: 10/79
Judge and Court: Hon. Edward P. Gallogly (Ret)
RI Family Court
Co-counsel: John E. Farley, Esq.
Assistant Attorney General
72 Pine Street
Providence, RI 02903
(401) 277-2424
Prosecutor: Edward DiPippo
422 Broadway
Providence, RI
(401) 861-5500
14
315
The following five cases were tried separately before the
RI Supreme Court Disciplinary Board and presented
separately before the RI Supreme Court. The Court opinion
consolidates them along with several others that I also
tried under the caption Lisi v. Several Attorneys 596 A2d
313 (RI 1991) . I had been assigned full responsibility for
investigation, preparation of charges of formal
disciplinary action, trial, memoranda, and presentation to
the RI Supreme Court of the matters reported in Lisi v.
Several Attorneys . These were cases of first impression in
Rhode Island. The Court found that the attorneys had
prejudiced the administration of justice by loaning money
to a Family Court Judge before whom they appeared. The
Judge was removed from the bench and disbarred before the
trials of these matters took place.
6) In the Matter of Gordon & Levitt . See Lisi v. Several
Attorneys . 596 A2d 313 (RT 1991) Gordon and Levitt
were partners in a law firm. Gordon practiced before
the RI Family Court on a regular basis. From 10/88 to
7/89, he was attorney of record and trial counsel in
seventeen domestic relations cases which appeared on
the calendar of then Family Court Judge Fuyat.
Included among those seventeen cases was a hotly
contested matter, the trial of which took 24 days.
One of the issues before the Judge was Gordon's
petition for attorneys' fees totalling approximately
$120,000. Five days before the trial started, Gordon
met privately with the Judge and agreed to give the
Judge a $4,000 check drawn on his firm client's
account in exchange for the Judge's post-dated check.
While the trial was in progress, the Judge asked
Gordon if his firm would represent Fuyat with regard
to a pending refinance of the Judge's home. Gordon
agreed and directed the Judge to call his partner,
Levitt. Levitt spoke with the Judge and agreed to
represent him. A few days later, however, the Judge
called to say that the financing had been delayed.
The Judge inquired if Levitt could arrange a "bridge
loan". Levitt then arranged a loan of $20,000, using
funds of a real estate business in which he, Gordon,
and other non-attorneys were partners. Levitt was
aware of Gordon's trial before Fuyat and the petition
for attorneys* fees. Neither Gordon or Levitt
informed opposing counsel of their financial dealings
with the Judge. The Judge was removed from the bench
prior to rendering a decision in the case.
I prosecuted this case for the Office of Disciplinary
Counsel. Mr. Gordon was suspended for a period of one
year. Mr. Levitt was suspended for period of six
months.
Trial dates: 1/8/91
15
316
Disciplinary Board Members:
Hon. William C. Hillman
(now U.S. Bankruptcy Court
Boston)
Lester Salter, Esq.
E. Rowland Bowen, Esq.
Respondent's counsel: Gordon ;
John A. Tramonti, Jr.
808 Hospital Trust Bldg,
Providence, RI 02903
(401) 751-5433
Levitt ; Stephen J. Fortuanto
The Summit East
Suite #310
300 Centerville Road
Warwick, RI 02886
(401) 737-7200
7) In the Matter of Chace & Forte See Lisi vs. Several
Attorneys . 596 A2d
before a specially
Disciplinary Board
assigned by the RI
served as a member
313 (RI 1991) This case was tried
constituted panel of former
members. The special panel was
Supreme Court because Mr. Chace had
and as Chairman of the Disciplinary
Board during the investigation and at the time of the
commission of the acts under investigation by the
office of Disciplinary Counsel Judge Forte is and was
at the time of the hearing a Family Court Judge. He
had previously been Chace 's law partner.
Prior to Forte's appointment to the bench, he was
responsible for the firm's domestic relations
practice. While he had cases pending before Fuyat, he
agreed to arrange a loan for the Judge. The source of
the loan was Chace' s family business. Neither Chace
nor Forte advised opposing counsel of the loan.
Shortly after arranging the loan. Forte agreed to make
an investment with Fuyat in a real estate venture.
Forte gave Fuyat a check for $20,000 as his share in
the purported investment. Again, Forte did not advise
opposing counsel of this arrangement.
Chace was suspended for a period of 30 days
was publicly censured.
Forte
Dates of trial
11/2/90
Disciplinary Board Members:
Co-counsel
None
Hon. William C. Hillman
(now U.S. Bankruptcy Court
Boston)
Lester H. Salter, Esq.
Charles H. Anderson, Esq.
16
Respondent's counsel
317
Joseph A. Kelly, Esq.
155 South Main Street
Providence, RI 02903
(401) 331-7272
8) In the Matter of Toro . See LJSi vs . Several
Attorneys . 596 A2d 313 (RI 1991) Mr. Toro made three
five thousand dollar loans to former Judge Fuyat
between 10/87 and 12/88. Throughout that period of
time, Toro continued to appear before the Judge, but
he never advised opposing counsel of his loans to the
Judge.
Mr. Toro was publicly censured.
Date of trial: 10/30/90
Disciplinary Board Members
Hon.
Edward
C.
Clifton
(now
Judge,
RI
District
Cour
t)
Mari
f ranees
McGinn, Esq.
Mari
lyn Shannon-McConaghy,
Es
q.
Co-counsel :
None
Respondent's counsel:
9)
Joseph A. Kelly, Esq.
155 South Main Street
Providence, RI 02903
(401) 331-7272
In the Matter of Comolli . See Ljgi vjSt Several
Attorneys . 596 A2d 313 (RI 1991) Mr. Comolli made
three loans to former Judge Fuyat totalling $15,000.
The first loan was made in the Judge's chambers at the
conclusion of several matters Mr. Comolli had handled
for the Bureau of Family Support. Mr. Comolli
admitted that at the time he made that loan he could
foresee that he would appear before Fuyat on a
contested matter at some point in the future. Even
though Mr. Comolli had been told by a senior partner
that the first loan was "incorrect", Mr. Comolli made
two more loans.
Mr. Comolli was suspended for 30 days.
Date of trial: 11/15/90
Disciplinary Board Members: Ralph P. Semonoff
(deceased)
Carol A. Zangari, Esq.
E. Howland Bowen, Esq.
Co-counsel: None
17
318
Respondent's counsel: Thomas J. Liguori, Esq.
P.O. Box 1277
855 Beach Street
Westerly, RI 02891
(401) 596-7751
10) In the Matter of Newman . See Lisi vs. Several
Attorneys . 596 A2d 313 (RI 1991) Mr. Nevnnan made an
$8,500 loan to Judge Fuyat which was never repaid.
During the time the loan remained outstanding, Mr.
Newman had approximately 80 cases on Judge Fuyat 's
calendar. Mr. Newman never asked the Judge for
repayment nor did he advise opposing counsel of his
loan to the Judge.
Mr. Newman was publicly censured.
Date of trial: 10/18/90
Disciplinary Board Members: George Salem, Esq.
E. Howland Bowen, Esq.
Carol A. Zangari, Esq.
Co-counsel: None
Respondent's counsel: Thomas J. Liguori, Esq.
P.O. Box 1277
855 Beach Street
Westerly, RI 02891
(401) 596-7751
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the
nature of your participation in this question, please
omit any information protected by the attorney-client
privilege (unless the privilege has been waived.)
In 1992, the RI Supreme Court voted to adopt the
recommendations of the RI Supreme Court Ethics Task
Force as those recommendations related to attorney
disciplinary procedure. I appeared before the Task
Force and the Court to advocate adoption of most of
the ABA'S McKay Commission recommendations. The Court
did promulgate new rules which bring Rhode Island in
substantial conformity with the recommendations of the
ABA. In particular, the rules now require the
participation of non-attorney members of the
Disciplinary Board and publication of formal charges
of misconduct upon a finding of probable cause by the
Board. I drafted the rule amendments at the request
of the Court.
18
319
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future
benefits which you expect to derive from previous
business relationships, professional services, firm
memberships, former employers, clients, or customers.
Please describe the arrangement you have made to be
compensated in the future for any financial or
business interest.
Rhode Island State Employers Retirement Fund $47,197
Lincoln National Life Insurance Company Deferred
Compensation $11,757
The amounts reported represent my contribution to the
funds .
I intend to remove the funds from the Rhode Island
State Employees Retirement Fund upon my resignation
from state service. Those funds will be re-invested
in a qualified retirement plan.
I do not anticipate receipt of the Lincoln National
funds until retirement.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements
that are likely to present potential
conf licts-of-interest during your initial service in
the position to which you have been nominated.
I will recuse myself from any involvement in matters
where my husband's law firm has any interest and/or
participation.
I intend to follow the mandates of the Code of
Judicial Conduct in any situation likely to present
any potential conflict of interest.
Do you have any plans, commitments, or agreements to
pursue outside employment, with or without
compensation, during your service with the court? If
so, explain.
No.
19
320
List sources and amounts of all income received during
the calendar year preceding your nomination and for
the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties,
patents, honoraria, and other items exceeding $500 or
more (If you prefer to do so, copies of the financial
disclosure report, required by the Ethics in
Government Act of 1978, may be substituted here.)
Copy of Financial Disclosure Report attached.
Please complete the attached financial net worth
statement in detail (Add schedules as called for).
Attached
Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities
No
20
321
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American
Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time
to participate in serving the disadvantaged."
Describe what you have done to fulfill these
responsibilities, listing specific instances and the
amount of time devoted to each.
While still in law school, I volunteered with the
Defender Association of Philadelphia to work with
indigent juvenile offenders.
In 1984, I was elected Treasurer of the National Court
Appointed Special Advocate Association. After serving
two years as Treasurer, I was elected to a two year
term as President. I went on to serve four more years
as a director of the Association. The National CASA
Association is a non-profit membership organization
dedicated to providing abused and neglected children
with trained volunteer advocates in the Juvenile and
Family Courts throughout the United States. The
Association has been recognized by the White House
(1986 recipient of the "President's Volunteer
Recognition Award") and child advocacy organizations
for the excellent work it does. As an officer and
director of the Association, I participated in setting
policy and direction and represented the Association
at numerous national and local conferences. I
continue to donate time to the Association on an as
needed basis.
From 1987 to 1990, I served as a member of the Board
of Directors of the Urban League of Rhode Island.
From 1988 to 1991, I served as a Volunteer Judge in
the Mock Trial Competition for junior and senior high
schools sponsored by the Rhode Island Legal/Education
Partnership.
From 1989 to 1991, I served as a member of the Board
of Directors of the Ocean State Adoption Resource
Exchange.
In addition to the volunteer activities listed above,
my entire professional career has been dedicated to
public service.
21
322
The American Bar Association's Commentary to its Code
of Judicial Conduct states that it is inapproprate for
a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex,
or religion. Do you currently belong, or have you
belonged, to any organization which discriminates —
through either formal membership requirements or the
practical implementation of membership policies? If
so, list, with dates of membership. What you have
done to try to change these policies?
From 1989 to August, 1993, my husband and I held a
family membership at Potowomut Golf Club in East
Greenwich, RI . The club does not restrict or exclude
membership on the basis of race, sex, or religion;
however, there were rules and policies which
disparately affected female members. Specifically,
women were excluded from one of the grille rooms and
women had restricted access to tee times. Prior to my
resignation in August, 1993, the club had taken
several steps to address and remedy the situation.
In June of 1993, I wrote to the Board of Governors
urging them to take action to eliminate the
discriminatory policies described above. In July of
1993, I appeared before the Board and reiterated my
objection to those policies and asked that the Board
adopt the recommendations to eliminate inequitites in
membership which had been developed by the Long Range
Planning Committee. In August of 1993, my husband and
I resigned from the club.
Shortly after our resignation from membership, the
Board adopted a resolution to open the grille room to
all members. The Board also voted to recommend to the
membership that changes be made in the club by-laws to
eliminate gender based access to tee times. The
membership ratified those by-laws changes at the
annual meeting held on January 27, 1994.
Is there a selection commission in your jurisdiction
to recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial
selection process, from beginning to end (including
the circumstances which led to your nomination and
interviews in which you participated) .
There is no selection commission in my jurisdiction.
In March, 1993, I wrote to Senator Claiborne Pell to
express my interest in appointment to the U.S.
District Court. I met with Senator Pell and his
staff. We discussed my educational background, trial
experience, and administrative experiences. I had a
second interview with Senator Pell and his staff where
22
323
we discussed my qualifications in greater detail. I
provided Senator Pell with the names of individuals
who are knowledgeable about my legal ability and my
integrity.
After Senator Pell recommended my nomination to the
President, I was interviewed by agents of the FBI and
staff from the United States Department of Justice. I
was also interviewed by members of the ABA Standing
Committee on the Federal Judiciary.
Has anyone involved in the process of selecting you as
a judicial nominee discussed with you any specific
case, legal issue or question in a manner that could
reasonably be interpreted as asking how you would rule
on such case, issue, or question? If so, please
explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become
the subject of increasing controversy in recent
years. It has become the target of both popular and
academic criticism that alleges that the judicial
branch has usurped many of the prerogatives of other
branches and levels of government.
Some of the characteristics of this "judicial
activism" have been said to include:
a. A tendency by the judiciary toward
problem-solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
23
324
The federal judiciary must look to Article III of the
United States Constitution and the acts of Congress
for the parameters of its authority. A federal judge
does not make law or policy. Those responsibilities
and powers are vested in the Congress and the
Executive Branch. The responsibility of a federal
judge is to find facts and apply the law as enacted by
Congress and in keeping with the interpretation of the
law by the appellate courts.
The judge must at the outset of litigation make
findings as to the standing of the parties, and a
determination as to whether there exists a concrete,
definite, real dispute which may be redressed by an
order of specific relief from the Court.
A federal district court judge is ill-equipped to
serve as an "administrator with continuing oversight
responsibilities'*. However, the judge, in deciding an
actual case or controversy may nonetheless affect the
way in which those individuals who are responsible for
the internal administration of organizations or
institutions which may be before the court, will
comply with the orders of the court.
24
325
AFFIDAVIT
I, Mary M. Lisi, do swear that the information provided in
this statement is, to the best of my knowledge, true and
accurate.
January 31, 1994 ^^/Jn^^y /h o^/^^^V
Mary J^.'^Lisi'^
Notary /
Sharon 6. Rtzpalricfc
Kiy Cc r.m:33.'sn &^«"k .luiy to 1995
FINANCIAL DISCLOSURE REPORT (cont'd)
326
Mam of Parsoo Raportlog
Lisi, Mary M.
D«t« of Kaporc
1/31/94
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children; use the parentheticals '(S)" and '(DC)" to Indicate reporteUe
reimbursements and gifts received by spouse and dependeot children, respectively. See pp.l3-lS of Instnictloai.)
SOURCE DESCRIPTION
n
NONE (No aucb rapor^Abla rslAburaaasnta or gifta]
Exenpt
V. OTHER GIPTS. (includes those to spouse and dependent children; use the parentheticals "(S)' and "(DC)' to
Indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructions.)
SOURCE DESCRIPTION VALUE
n
NONE (Mo auch rapoPtable glfta)
Exenpt _^_ $_
$_
$_
$
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liabilitv of spouse, "(J)" for joint liability of reporting
individual and spouse, and "(DC)" for liability of a dependent child. See pp.16-18 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
X NONE (Mo raportabla llabllltlaal
VlkUil CODtS: J - S15.00O or laaa I • 515,001 to 150,000 L - 550,001 to 5100,000 H - 5100.001 to t»0,OOO
R - 5250,001 to 5500,000 O - 5500,001 to 51,000,000 P - Mora thai) 51,000,000
327
Httas of P«raoQ Raporcing
OMtm of toport
FINANCIAL DISCLOSURE REPORT (conl'd)
Lisi, Mary M.
1/31/94
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children; sec pp. lft-27 of Instnictioos.)
p»»crlptXon of AAS«ta
(iDCludLng truac UMta)
lAdicata, ««bar« appllcabla, ownar oi
tb« «a*«c by using Uia nsrantiia^acal
•(J)* for iolnt ownaraSlp of raport-
iiig ln<llvi3ual and apooaa, "(S)" for
a«paxat« o»*TiaralLlp by apouaa, '(DC)"
for ownarahip by Sapandaat child,
Plaea '(X)* afrsr each a«a«t
axopt Cros prior dlacloaux*.
durlno
e.
Oroaa valQa
at and of
D.
Tranaactlona during raporttog pftrlod
CD
Aat.,
(»-a)
(2)
dlv. ,
rant or
iMt.y
(1)
Valna^
Coda'
(J-P)
12)
»aliia
Mathod-,
Coda^
(Q-X)
A.
buy.aall,
■argar,
radamp-
tlon)
If Dol axaapc troB diacloaur* 1
iiia:J
Day
(3)
(J-P)
(4)
OalD,
Coda*
(»-a)
Ui privsta
traaMmtloB)
NONE (No raportAble
IncoB*. aaaata, or
' Lincoln National Life Ins,
C>eferred Conpensation
A
Int
J
T
Exempt
^ RI State Employees
Rptirprrpnt Fiinri
ft
None
K
T
Exempt
^ Fleet National Bank
Providence. RI CD (Jl
A
Int
J
T
Exempt
* Citizens Bank, Prov., RI
a
Jrit
T
T
fii^seesufif^' p'^°yjt ^
A
Int
J
T
Exenpt
6 Nuveen Insured Municipal
Bond Fund (J)
A
Div
J
T
Exempt
' Citizens Bank, Prov., RI
A
Int
J
T
' Citizens Bank, Prov., RI
P
Int
J
T
Exempt
401-K (S)
A
Int
J
T
Exerrpt
10
Target Benefit Plan (S)
A
Int
K
T
Exempt
11
" Real Estate 'See VIII
rtiniaj piririHa ';7q,ifin
a
Mnnp
K
S
Fxpmpt
" §i5igag=A§g?^*.iii^viiF
A
Int
K
T
Exenpt
i<
15
16
17
18
19
20
I IncoM/Ciln CoOat: »-Sl,000 or !••• B-S1,001 to 52,500 C-S2.501 to 5,000 0*55,001 to 515.000
ISaa Col. Bl t Dtl E-S15,001 to 550,000 F-550.001 to 5100,000 0-5100,001 to 51,000.000 e-Hora than 51. 000, 000
2 Valua Codaa: J-515.0CK1 or iaaa K-515,001 to 550.000 L-S50,OQ1 to 5100,000 M-5100,001 to si^0,000
•Sfm r-ii ?' « ?"!' ^.^..c^ -^. ^ 5500.000 OS500.001 to 51,000,000 P-Mora tiian 51,000,000
J ,a-oo .lataoo ..ooaa: Q-Appr«l»ai ft-Coat ( raal aatate only) S^Assasafflent T=Caeh/Mar)tet
(S«a Col. C2) U-Boolc Valua v^Ottisr W-Estunatad
328
FINANCIAL DISCLOSURE REPORT (cont'd)
«■• ot P*rsoQ fiaportiog
Llsi, Mary M.
D«ta of ■■pore
1/31/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (HxUck p«i or Report.)
*Real Est ate - Dania. Florida. This is my father's residence. The property is held
as a joint tenancy with hijn.
**Citizens Bank - Savings Account. This is a joint savings account vd.th my father.
The funds are his.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Actrviijes, and to the best of my knowledge ai the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent dtiktreo
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information peruining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosuie.
1 funher certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C-A. app. 7, § 501 et. seq., 5 U.S.C. 5 7353 and Judicial Conference
regulations.
Signature
'\ yyiyi^jA/h r7)t4^
Date
^^^^v
5IVL3U/
NOTE; ANY INDIVIErtJAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6. S 104. AND 18 U5.C % lOOL)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judicial Ethics Cdmminee
Administrative Office of the
United Slates Courts
Washington, DC 20S44
X
/
329
MARy-M* LISI
FINANCIAL STATEMENT
NET WORTH
As Of December 31, 1993
Pfovidi • complete. Cvrrtnl fintnciil net worth iHlwnenl which iltmliei In ddijl ill iticli (indutfir.
lecounll. r»jl »iUt». ^^eufiiiet. Iivili. invt«lm«nl». »«* other (intncid hokJInn) (l| li«bili|it} (includin{
mstgij". 'M"». '"^ o">«' (injftciti ebligationi) of jroufieil. your ipouj«. mi olhtf ImmtdUto memt
your houtthoid.
^
ASSCTS
|| UABlimCt
C4«h en htntf «Ad In b«nkj
Uli»4 MCwnDn — •dd tcht^ut*
Uniir<« MCuntiM — idd *e^•dul•
Aeccuna *i>C noln r*ciiviMi:
O^a from rtli^v•t trtd tn'trtdi
Ow* from o<hfr«
Oogttful
K K««i ntjtf mcrtiain rtctivtbT*
Ctin vil»»« r.ft lAiurir><i
i Caiipensation Lincoln National
7qR7i
MD
1 NolM Nr«bla to 6lr<li»— t«curo4
No<«> Mr'bia to b«nb— u^ucurW
C
Ol
00
00
■oo
i
0?
1 N«tt» pjnbl* Is olhtn
Ol
2800
HI
Accmna ir^a Mm ou*
Unpild Ineem* Iji
OtKor urtMld t«l trtd fntaml
Rtal Mint metlitn payaM»— «M
Khadulo
Qvlttcf mortsagri an^ oartar flana
Olht< daM»--tltmlit:
n
N/A
II
p
Jl
N/A
—
132000
^^»
N/A
350000
00
—
~ *^3HH
00
'^'raBJBi
^BBoo
n
np
Deferre;
11757
IJI?
— •
RI St^
kuipioyees Ketirement Fund
47197
00
-nn
•
Nuvee^
ensured Municipal Bond f\ind
1397?
ToUl lUbKiliM
132000
441066
IRAs
i7nq
Ml
Ji
bee bcn^uje^i^tached
. 57306A
T«jl ntblllUn iivd htl »or»n
()
573066
COKTlNStNT UASlllTltS
CtNOUl INrORMATION
Ax m<^aor\*r. cor^lktr or r^jtrantor
On tuMt or cont/ictl
PvW•ft•or^ for fwCtr^t tnccmt Tal
OP»r l^fclil dabi
00
A/a artr UwQ »Ia<f|a^ (U4 KhaO-
Ult.)
Aro fov da(«r%darrt In «ny witi or
l*(ti tctienti'
Haol >ou *««r bUn bartiAipic})
. t^O.,
00
00
Yes
06
No
n
nn
■
.20.
330
MARY M. LISI
ASSETS
401K 6,000.00
Target Benefit Plan 22,400.00
Joint Savings Account
with Mary Lisi's father 22,000.00
(these are my father's funds)
* Real Estate Owned
Residence: 355 Stone Ridge Drive
East Greenwich, RI 02818
(tenancy by the entirety)
Approximate Value: $325,000.00
59 Catcay Court
Dania, PL 33004
(joint tenancy with my father;
this is his residence)
Approximate Value: $25,000.00
LIABILITIES
Real Estate Mortaaaes Payable
Citizens Mortgage Corporation
mortgage on 355 Stone Ridge Drive
East Greenwich, RI 02818
Balance as of 12/31/93: Approximately $118,000.00'
Citizens Bank Equity Mortgage
mortgage on 355 Stone Ridge Drive
East Greenwich, RI 02818
Balance as of 12/31/93: Approximately $14,000.00
331
FINANCIAL DISCLOSURE REPORT
Kaport ll*q\ilr«d by tbm ttlilCB
R«Cor» Act oC 1989, Pub. L. Bo.
101-194, lovnitMr 10, 1M9
(5 U.S.C.A. App. 6, fSlOl-112)
1. PaxsoQ fUporclng [Lmaz o«a*, Clrst, Klddla inltl*l]
Lisi/ Mary M.
2. Court or Organization
United States District Court
District of Rhode Island
3. Dat« of toport
1/31/94
4. Tltla {Axxlcl* III judgas iDdlcats acrlva or
••Qlor atacua; Hagiarraca judgaa Ijidlcata
full- or parx-tlaa]
Nominee - United States District
Court Judge
S. Raport Typa (cback approprlata cypa)
X »o»lnatlon. Data 1/27/94
X Initial Annual Pinal
6. Raportlng Parlod
January 1, 1993 -
January 14, 1994
7. Cbaabara or Offlca Addraaa
24 Weybosset Street
Providence, RI 02818
8. On Uia baala of thm Information contalnad In thla Ksport, It
la, In By opinion. In coBpllanca wltil appllcabla lawa and
ragulatlona
Ravlawlng Offlcar Signatura
IMPORTANT NOTES: The insmictions accompanying this form must be followed. Complete all pafts,
cfaeddng the NONE box for each section where you have no reportable inronnation. Si^ on last page
I. POSITIONS. (Reporting individual only, see pp. 7-8 of Instruaions.)
POSITION NA.ME OF ORGANIZAnON/ENTTTY
n
NONE (Ho raportabla poaltlooa)
Director
National Court Appointed Special Advocate
Association, Seattle, Washington
II. AGREEMENTS. (Reponing individual only; see p. 8-9 of Instnictions.)
DATE PARTIES AND TERMS
□
NONE (Ko raportabla agraaaanta)
NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
SOURCE AND TYPE
NONE [Do raportabla noo-lnvaitoaot Incooe)
GROSS INCOME
(youR, not spouse's).
1992
19S3
1994
1992
1993
State
of
Rhode
Island
- Chief
Disciplinary
Counsel
State
of
Rhode
Island
- Chief
Disciplinary
Counsel
State
of
Rhode
Island
- Chief Disciplinary
Counsel
Blish
&
:avanaqh - Attorney
Blish & Cavanagh - Attorney
$ 65,515.90
$ 71,669.18
$ 2,171.28
S (s)
$ (s)
1994
Blish & Cavanagh - Attorney
(s)
332
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names Used.)
Willie Louis Sands
2. Address: List current place of residence and office address(es).
Home: 1657 Twin Pines Drive
Macon, Georgia 31211
Office: Room 310
Bibb County Courthouse
661 Mulberry Street
Macon, Georgia 31201
3. Date and place of birth.
April 12, 1949; Bradley, Jones County, Georgia
Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married. Spouse: Karia Jonita Heath-Sands
Occupation: Community Service Director/TV Weathercaster
Employer: WMAZ T.V.
P.O. Box 5008
Macon, Georgia 31213
Education : List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
Mercer University, 9/67 - 6/71
B.A. Degree (Double Major): (June 6, 1971)
(a) Political Science
(b) Music
Walter F. George School of Law, 8/71 - 6/74
Juris Doctor Degree (June 2, 1974)
Employment Record : List (by year) all business or professional corporations,
333
companies, firms, or other enterprises, partnerships, institutions and
organizations, nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or employee since
graduation from college.
6/74 to 9/74 - District Attorney's Office. Macon Judicial Circuit. Macon,
Georgia. Chief Legal Assistant to District Attorney.
9/74 to 12/74 - United States Army. First Lieutenant, United States Army
Reserves. Ft. Gordon, Georgia.
1/75 to 11 /78 - District Attorney's Office, Macon Judicial Circuit (Bibb, Peach
and Crawford Counties, Georgia). Assistant District Attorney
[During certain periods during my tenure as an assistant, I
was technically an employee of the State of Georgia.]
1 976 to Present - Steward Chapel African Methodist Episcopal Church.
Organist/Minister of Music & Officer.
approx. 1975
to 1977 - Family Counseling Center. Member, Board of Directors.
1 1 /78 to 1 2/87 - United States Department of Justice (United States Attorney's
Office, Middle District of Georgia). Assistant United States
Attorney
1984 to 1991 - Investors, Ltd. Partner. (Investment partnership club)
12/87 to 4/91 - Mathis, Sands, Jordan & Adams, P.C. Partner, Law Firm
(Macon and Milledgeville, Georgia)
1991 to Present- State of Georgia. Superior Court Judge. Macon Judicial
Circuit. Macon, Georgia.
1992 to Present - Macon Symphony Board, Director
1993 to Present - Community Foundation of Central Georgia, Inc., Director
1993 to Present - Bank Corporation of Georgia/First South Bank, N.A., Director
1994 to Present - Board of Visitors, Walter F. George School of Law. Member.
Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type
of discharge received.
334
Yes. I was commissioned a Second Lieutenant in the United States Army Signal
Corps on June 6, 1 971 . While a college ROTC cadet, I performed six (6) weeks
of basic training at Ft. Bragg, North Carolina in the Summer of 1970. After law
school, I entered upon active duty (for training only) at the rank of 1" Lieutenant
at Fort Gordon, Georgia from September - December, 1974. I also performed
active duty as a reservist assigned to a regular army unit at Fort Gordon in the
Fall of 1978. After completing reserve duty, I resigned my commission in 1980.
8. Honors and Awards : List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to
the Committee.
I attended Mercer University substantially on academic scholarship
(undergraduate school). Tapped into Scabbard and Blade Military Honor Society.
Member of Moot Court Board of Advisors, Walter F. George School of Law. 1 973-
74
Graduate, Leadership Georgia, 1986
Graduate, Leadership Macon, 1985
Named to Outstanding Young Men of America, 1984
9. Bar Associations : List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of any offices which you have held in such groups.
State Bar of Georgia
Bench & Bar Committee: 1991 -Present
Macon Bar Association
President: 1991-92
President-Elect: 1990-91
Secretary: 1989-90
Treasurer: 1 988-89
Law Day Chair/Co-Chair: approx. 1988 (and in a previous year)
Court Security Committee: 1992-93
Council of Superior Court Judges
Uniform Rules Committee: 1992 to 1993
Bench & Bar Committee: 1991 to Present
335
Sentence Review Panel: 1993
Legislative Committee: 1993 to 1994 (term)
Council Director Search Committee: 1993
American Bar Association: 1991 to Present
American Judicature Society: 1991 to Present
Georgia Commission on Family Violence:
Vice-President 1992 to Present
Georgia Supreme Court Committee
for Gender Equality: 1993 to Present
Georgia Supreme Court Task Force on
Substance Abuse: 1991 to Present
10. Other Memberships : List all organizations to which you belong that are
active in lobbying before public bodies.
The Georgia Commission on Family Violence and the Georgia Supreme
Court Committee for Gender Equality have specific charges to review and suggest
legislation or comment on the same. In that sense each has direct contact with
the State legislature and, therefore, indirectly, other public bodies. The Legislative
Committee of the Council of Superior Court Judges communicates matters of
legislative interest to the judiciary and vice-versa.
Please list all other organizations to which you belong.
Walter F. George School of Law Alumni Assoc. Board
City Club of Macon'
Alpha Phi Alpha Fraternity, Inc. (Epsilon Beta Lambda Chapter)
Community Foundation of Ga., Inc. (Board Member)
Mercer University's 30th Anniversary Planning Committee (commemorates 30 years of
African-American enrollment)
Sigma Pi Phi Fraternity (Beta Chi Boule)
Homosophian Club
Macon Symphony
1 1 . Court Admission : List all courts in which you have been admitted to practice,
with dates of admission and lapses if any such memberships lapsed. Please
explain the reason for any lapse of membership. Give the same information
for administrative bodies which require special admission to practice.
'Membership Criteria information attached - See, attachment, question 10.
336
United States Supreme Court, August 8, 1980
United States Court of Appeals for the Eleventh Circuit, October 1 981
United States Court of Appeals for the Fifth Circuit, December 29, 1978
United States District Court for the Middle District of Georgia, November 21 , 1978
Supreme Court of Georgia, January 8, 1975
Court of Appeab of Georgia, Janueiry 8, 1975
Superior Courts of Georgia, October 28, 1 974
United States District Court for the Southern District of Georgia {pro hac vice,
only) May, 1990
12. Published Writings: Ust the titles, publishers, and dates of books, articles,
reports, or other published material you have written or edited. Please
supply one copy of all published material not readily available to the
Committee. Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were press reports about
the speech, and they are readily available to you, please supply them.
I have no published writings other than judicial opinions. With regard to
speeches referencing constitutional law or legal policy, I have only made short
talks to groups following the ABA Law Day Theme in a given year or the most
general informational comments to school children regarding the form of our
government without written documentation.
13. Health : What is the present state of your health? Ust the date of your last
physical examination.
Very good. September 22, 1993.
14. Judicial Office : State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
I am presently a Superior Court Judge for the State of Georgia, Macon
Judicial Circuit. I was appointed by Governor Zell Miller and sworn in on April 30,
337
1991. The Superior Court is the trial court of general jurisdiction established
under the State constitution. Its jurisdiction includes felony criminal and civil
matters, as well as equity. The Superior Court also sits as a court of review in
that it hears appeals from administrative bodies such as the Workers'
Compensation Board. At the appropriate time it will be necessary to stand for
election to remain in the position following appointment.
15. Citations : If you are or have been a judge, provide:
(1) Citations for the ten most significant opinions you have written;'
I am a trial court judge. Therefore, I do not routinely write opinions in the
usual sense of the word. However, I do make rulings which occasionally
include a written decision or order. Ten of those which I believe are
significant follow:
NOTE: I have attached copies of the below listed orders and copies of
unpublished opinions, where appropriate.
(a) State of Georgia v. Kenneth D. Bright . Indictment No. SU90CR-368-
4, Superior Court of Muscogee County (Specially appointed to hear
a recusal action). Order.
(b) Emanuel R. Solomon, M.D. v. J. Gregory Jones. M.D. , Civil Action
No. 81989, Superior Court of Bibb County, Georgia. Findings,
Verdict and Judgment. Affirmed: Jones v. Solomon . 207 Ga. App.
592 (1993).
(c) State of Georgia v. Altonio Brooks . Indictment No. 38737-02,
Superior Court of Bibb County, Georgia. Order.
(d) Kathryn L. Baker v. Charles R. Whalen and Vineville Tire Co. . Civil
Action No. 79740, Supenor Court of Bibb County, Georgia. Order.
(e) Atlantic Cotton Mills. Inc. v. Rivoli Crossing Baptist Church. Inc. and
First Rebecca Baptist Church. Inc. . Civil Action No. 87972, Superior
Court of Bibb County, Georgia. Order. [Judgement Reversed.
Supreme Court of Georgia, Case No. S93A1334. November 24,
^Since 1 am a trial judge, I am not often required to write opinions in handling the
routine business of the Court. In fact, a very important or significant case may not require
a written opinion , as such. Therefore, significant written opinions, as reflected here, should
not be equated as necessarily the most significant cases handled.
338
1993] See , copy of opinion attached under Question 15(2), infra.
(f) Dr. Frank W. Barr v. Dr. Margaret Barr and Margaret Barr v. Frank
W. Barr . Civil Action Nos. 83713 and 83455, respectively. Superior
Court of Bibb County, Georgia. Orders.
(g) Walker, et al v. Central of Georgia Railroad . Civil Action No. 79491 ,
Superior Court of Bibb County, Georgia. Orders.
(h) State of Georgia v. Willie James Clav . Indictment No. 40099-01.
Superior Court of Bibb County, Georgia. Order granting Motion to
Suppress.
(i) Christine L. Gleason v. Melton Joe Starks . Superior Court of Bibb
County, Georgia, Civil Action No. 87666. Order.
(j) Lance Efrem Shelley v. Debra Gray Shelley , Civil Action No. 86977.
Order.
(2) A short summary of and citations for all appellate opinions where your
decisions were reversed or where your judgment was affirmed with
significant criticism of your substantive or procedural rulings;
Only two decisions that I rendered have been reversed: (1 ) Glover v. Scott.
etal. . 435 S.E.2d 250 (1993). The Georgia Court of Appeals found as error
my affirmance of the decision of the Board of Review of Employment
Security to deny unemployment benefits to a fired employee. (2) Atlantic
Cotton Mills. Inc. v. Rivoli Crossing Baptist Church, Inc. and First Rebecca
Baptist Church, Inc. , Supreme Court of Georgia, Case No. S93A1334.
Decided: November 24, 1993. The Court agreed with my analysis and fact
findings in a complex multi-congregational dispute regarding title to
property, but disagreed with my conclusion that a reversionary interest had
not been triggered by the action of the titled congregation. (Copy of
opinion attached.)
(3) constitutional issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
None.
16. Public Office : State (chronologically) any public offices you have held, other
339
than judicial offices, including the terms of service and whether such
positions were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
1 . Assistant District Attorney (appointed)
Macon Judicial Circuit 1975-78
2. Assistant United States Attorney
Middle District of Georgia (appointed) 1978-87
3. Georgia Supreme Court Task Force 1991 -Present
on Substance Abuse (appointed)
4. Georgia Commission on Family 1992-Present
Violence (appointed)
5. Georgia Supreme Court Committee 1993-Present
for Gender Equality (appointed)
17. Legal Career :
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as a clerk to a judge, and if so, the name of
the judge, the court, and the dates of the period you were a
clerk;
I did not clerk for a judge. However, I did clerk for the District
Attorney's Office for the Macon Judicial Circuit.
2. whether you practiced alone, and if so, the addresses and
dates;
I did not practice alone.
the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
6/74 to 9/74 - Chief Legal Assistant to the District Attorney. Macon
Judicial Circuit. Bibb County Courthouse; 610 Mulberry Street;
Macon, Georgia 31 201 . Supervised law clerks and drafted appellate
340
briefs.
9/74 to 12/74 - 1" Lieutenant. Signal Corps. Active Duty for Training
Only. United States Army Signal School. Ft. Gordon, Georgia
1/75 to 1 1/78 - Assistant District Attorney. Macon Judicial Circuit.
Bibb County Courthouse; 610 Mulberry Street; Macon, Georgia
31201.
11/78 to 12/87 - /Assistant United States Attorney for the Middle
District of Georgia. United States Courthouse; Mulberry and Third
Streets; Macon, Georgia 31201.
12/87 to 4/91 - Partner. Mathis, Sands, Jordan & Adams, P.C.
Private Practice of Law. Main Office: 425 S. Wayne Street;
Milledgeville, Ga. 31061. Macon Address: P.O. Box 928; Macon,
Georgia 31202.
4/91 to Present - Judge. Superior Court. Macon Judicial Circuit.
Bibb County Courthouse; 610 Mulberry Street; Macon, Georgia
31201.
What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
Immediately after graduating from law school in June of 1 974,
I continued as chief legal assistant to the District Attorney for the
Macon Judicial Circuit, so that I might take the bar exam in July,
1974 and because I was scheduled to enter active duty with the
United States Army Signal School at Ft. Gordon, Georgia in the fall.
My major responsibilities were to supervise other summer law clerks
and interns and to serve as the chief appellate brief writer for the
office.
I ended my employment with the district attorney's office and
entered active duty (Signal Officer's Basic Course) in September,
1974. While on active duty, I received notice that I passed the
Georgia Bar Exam. My active military course of duty ended in
December, 1 974. Thereafter, I returned to Macon, Georgia.
I accepted employment as an assistant district attorney for
the Macon Judicial Circuit in January, 1975. I was the first African-
American so appointed in the history of the circuit (and possibly the
first in the State outside of Atlanta-Fulton County, Georgia). As an
assistant, I prosecuted felony and related misdemeanor cases in the
Superior Courts of Bibb, Peach and Crawford Counties. Among the
341
charges personally prosecuted were: Murder, lesser homicides,
kidnapping, rape, armed robbery, burglary, and theft cases. I also
prosecuted cases in the Juvenile Courts of the circuit, including
allegations of delinquency, deprivation and similar actions brought
against parents or affecting the hghts of parents and children in that
court.
My duties as an assistant district attorney also included
representing the State in felony preliminary hearings, inquests,
search warrant preparation, criminal investigations, in civil suits
within the responsibility of the district attorney relating to public
nuisances, and appellate brief writing. I also established and
administered the Child Support Recovery Unit for the circuit in 1 975,
pursuant to newly enacted federal child support enforcement
legislation. At the time I left the district attorney's office, to accept
appointment as an assistant United States attorney, I was the major
crimes prosecutor and the second most senior attorney in years of
service on the District Attorney's staff.
I was appointed to be Assistant United States Attorney for the
Middle District of Georgia by then-Attorney General Griffin Bell on
November 7, 1978. I was assigned to the criminal section of the
Macon Division (the district's largest of seven divisions). I became
the senior attorney in that division within a year of my appointment
and remained so throughout my tenure.
As an assistant, I was responsible for investigating and
prosecuting violations of federal criminal statutes and related
regulatory rules for numerous federal agencies within my division,
including the Federal Bureau of Investigation; the Secret Service; the
Bureau of Alcohol, Tobacco, and Firearms; Immigration and
Naturalization; Department of Education; Department of Commerce;
United States Postal Service; Internal Revenue Sen/ice; etc. As an
assistant, I was also responsible for appellate briefs and arguments
to the United States Court of Appeals level. I practiced regularly,
first in the United States Court of Appeals for the Fifth Circuit, and
later in the United States Court of Appeals for the Eleventh Circuit.
While an Assistant U. S. Attorney (from November, 1978 until
December, 1987), I prosecuted major drug and racketeering cases,
multi-million dollar fraud cases, tax evasion and fraud cases, threats
against the President, illegal automatic weapons cases, agricultural
fraud, electric power plant construction fraud, mail and wire fraud,
bank fraud, counterfeiting, airplane hijacking, false claims, interstate
travel violations, thefts from interstate commerce, bank robbery, etc.
342
In December of 1 987, I resigned my position as an assistant
United States Attorney in order to enter private practice. Together
with the following attorneys, I formed Mathis, Sands, Jordan &
Adams, P.C. with offices in Macon, Georgia and Milledgeville,
Georgia: Charles A. Mathis, Jr., D. James Jordan, and Virgil L
Adams.
Mathis, Sands, Jordan & Adams, P.C. was a general practice
law firm with emphasis toward the development of a personal injury
and related areas of practice. However, the firm continued to
provide legal representation in State end Federal criminal cases,
domestic relations, corporate, real estate, wills and estates, and
cases involving civil rights throughout my tenure with the firm.
I served as Vice President of the firm. While associated with
the firm, I handled cases in the following areas: Federal and State
criminal defense, personal injury, domestic relations, wills and
estates, employment, civil rights and Federal civil forfeiture. I also
handled a limited number of cases before administrative agencies:
EEOC (United States Air Force, United States Postal Sen/ice, State
of Georgia). Additionally, I handled some corporate and real estate
matters, including matters for the City of Macon.
I ended my relationship with Mathis, Sands, Jordan & Adams,
P.C. (now Mathis, Jordan & Adams, P.C.) on Apnl 29, 1991. On
April 30, 1991, I was sworn in as a Superior Court Judge for the
Macon Judicial Circuit upon appointment by the Honorable Zell
Miller, Governor of Georgia.
Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
As an assistant district attorney, I represented the State of
Georgia, and hence, the citizens of Georgia in the prosecution of all
levels of felony charges and related misdemeanor violations. These
included murder, rape, armed robbery, kidnapping, aggravated
assault, other crimes against persons and crimes against property,
including fraud. Additionally, I represented the State in actions in
the Juvenile Court, preliminary hearings, grand jury proceedings,
and inquests. At the direction of the district attorney, I also,
organized, established and administered the Child Support
Recovery Unit which engaged in actions to establish paternity and
to establish and enforce the payment of child support by absent
parents. The clientele included victims of crimes from all strata in
343
the three-county judicial circuit which included persons from every
facet of society from the very poor and rural communities to the very
urban and wealthy communities. My public clientele included all of
these.
As an assistant United States attorney, I represented the
citizens of the United States, predominately, in 1 8 counties of the
70-county district. While I prosecuted a full cross-section of federal
criminal offenses, I specialized in complex fraud, tax, and
racketeering-related prosecutions. Additionally, I drafted and argued
all appeals of cases I prosecuted to the Circuit Court of Appeals
level.
During the private practice of law, my clientele and that of the
firm were very diverse and inclusive with regard to race, sex, and
income levels. I represented businesses and laborers, the very
young and the elderly. I would describe my specialty as litigation,
while in public and private practice.
Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
I appeared in court frequently. The frequency varied as follows:
While an assistant district attorney, I was in court virtually every day
handling hearings and trials due to an enormous caseload. Later,
as an Assistant United States Attorney, I was in court frequently,
though not as often in trial, because of the typically smaller
caseload in Federal court as compared to State court. However, the
federal cases tried were generally far more complex. My in-court
frequency was further reduced upon entry into private practice due
to the reduced caseload of a private practitioner as compared to a
public practitioner. Nonetheless, my court appearances remained
relatively regular and frequent.
2. What percentage of these appearances was in:
(a) federal court; 55%
(b) state courts of record; 44%
(c) other courts. .5%
[(d) administrative tribunals .5%]
3. What percentage of your litigation was:
(a) civil 28%
344
(b) criminal 72%
State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether you
were soie counsel, chief counsel, or associate counsel.
I conservatively estimate the toted number of cases I tried to verdict
or judgment in courts of record at 200. I was usually chief or sole
counsel, and on a few occasions, associate counsel. This estimate
neither includes the countless minor and petty offenses I have tried,
nor, matters tried before magistrate judges.
5. What percentage of these trials was:
(a) jury 75%
(b) non-jury 25%
18. Liti gation : Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the litigation and the final
disposition of the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
1) United States of America v. Two Hundred. Ninety-Seven Thousand.
Eight Hundred. Ninety-Five Dollars ($297.895.00) In United States
Currency, The House and Lot . Civil Action No. 89-11 3-VAL
I represented Herbert Grady Bowen, one of three individueils who
filed a claim and answer to a forfeiture complaint. He was the owner of
several hundred thousand dollars of cash deposited in a bank by his co-
claimant brother, who had acted as his financial advisor. The major source
of Bowen's cash was his share of an inheritance from his deceased
mother, and his half of a wrongful death settlement resulting from the death
of his son, who was struck by a tractor trailer rig. Bowen withdrew this
lawfully deposited money from his Florida bank in the form of cash.
345
After keeping the money in his home under the constant fear that he
would be robbed, Bowen decided to taJ<e the money to his brother's home
In Georgia. Bowen was in relatively ill health and was interested in using
the money to invest for his retirement. His brother had a background in
personal finance and agreed to help him determine what was best. The
brother concluded and recommended that the money should be placed in
an annuity. However, the money needed to be deposited, but the brother
was fearful that the word might get out in his small town that he had sacks
of cash if he took it all to the bank at once. According to the brother, he
understood his local banker to explain that the money could be deposited
and not reported ("publicizad" in his mind) by the bank so long as the
deposit was less than $10,000.00.
Thereafter, the brother made deposits of all the money through the
drive-in window of the bank. A bank employee, consistent with bank
policy, reported the deposits, suspecting that money laundering was afoot.
A joint investigation by Federal law enforcement, including the IRS, resulted
in the money and the brother's car and house (the brother's spouse also
had an interest in the house), being taken for forfeiture for violation of
money laundering statutes. (28 U.S.C. §§ 1345 and 1356, and 18 U S C
§981(a)(i)(A).
My role in the case was that of defense attorney for Herbert Grady
Bowen, the owner of the money. My client denied, that any of the money
was derived from illegal sources, that he made the deposits and contended
that he relied on his brother. He also asserted, along with his brother, that
the brother thought that he had acted consistently with his banker's
explanation. The government filed a civil complaint for forfeiture. All
claimants answered in opposition to the action for forfeiture. The
government moved for summary judgment and contended that the
deposits were per se violations. Thus, the government argued, all the
property sought for forfeiture, including the money, should be forfeited
without regard to the source of the money or the parties' intent. The trial
court denied the government's motion for summary judgement with regard
to my client's interest in the cash.
This case was settled by consent order of forfeiture. Its significance
points out some potential resulting unfairness and inequity in the operation
and effect of civil forfeiture law: if strictly enforced without regard to the
merits; and, if the enlightened and balanced participation of a jury is
denied. In all probability, this case settled because the government did not
succeed in its motion for summary judgment as to my client and faced the
real possibility that a jury would accept the defendants' explanation,
particularly where the government could not show that the money was the
fruit of illegal conduct or that the parties' intended to violate the law. An
amount was forfeited to the government and the remaining funds plus
346
accrued interest, along with all other personal property, was returned to the
daimants.
Parties: The United States of America;
Herbert Grady Bowen;
Charles Ben Bowen. Jr.;
M£uy Keneece Bowen.
Co-Counsel: None
Counsel for Charles Ben Bowen. Jr. and Mary Keneece Bowen:
Floyd M. Buford Sr.
Buford & Buford
P.O. Box 4747
Macon, Georgia 31208
(912) 742-3605
Opposing CounsehCharles E. Cox, Jr., A.U.S.A.
P.O. Box U
Macon, Georgia 31202-0076
(912)752-3511
Date of Disposition: April 30, 1991
Court: United States District Court for the Middle District of
Georgia, Valdosta Division
Judge: Hon. Wilbur D. Owens. Jr.
2) Ridley v. Grandison . 260 Ga 6. 389 S.E.2d 746 (1990).
Ridley is a domestic relations case wherein the wife sued the
husband for divorce based upon an alleged common law marriage. I was
lead counsel for, and represented, the wife at trial and as appellee on
appeal to the Georgia Supreme Court.
The parties' relationship began in the State of Virginia, vtrtiich did not
recognize common law marriages. However, the parties moved to Macon,
Georgia and purchased a home and furnishings where they (along with the
wife's minor son) lived for several years. The husband denied the
existence of a common law marriage; contended that one could not have
been formed; and, concluded that his affair with another could not be
adulterous.
347
The jury found that a common law marriage did exist, set aside as
fraudulent an earlier transfer of the marital residence by the husband to his
father, and gave the wife alimony for a period of years. The Supreme
Court of Georgia affirmed the judgment for the wife by a vote of four to
three. Although the majority did not comment extensively, the dissenting
opinions strongly criticized the common law marriage doctrine and
suggested the need for the legislature to consider a change in the law.
Thus, the opinion expresses the concerns of a significant minority of the
justices of the State's highest Court on an issue which significantly touches
on the marital rights and responsibilities of Georgians.
Date of Trial:
November 9, 1988
Co-Counsel: For Mae Grandison
Mr. Charles A. Mathis, Jr.
Mathis, Jordan & Adams, P.C.
425 S. Wayne Street
Milledgeville, GA 31061-3445
Telephone: (912) 452-9387
Court:
Bibb County Superior Court. Macon, Georgia
Honorable Hal Bell, Judge
Opposing Counsel: (1)
For Defendant Jerome Ridley
Mr. Eari Thomas Shaffer, Jr.
Shaffer & Combs
550 Liberty Savings Tower
210 Second Street
Macon, Georgia 31201-2738
Telephone: (912) 746-2472
(2) For Defendant Jerome Ridley
Mr. Doye E. Green
Sell & Melton
P.O. Box 229
Macon, Georgia 31297-2899
Telephone: (912) 746-8521
3) U. S. V Power Piping Company
87-39-MAC
Power Piping was one of numerous cases brought by the U. ^.
Justice Department through certain U. S. Attorney's offices throughout the
country, including the Middle District of Georgia. Civil and criminal
investigations of a defaulted nuclear power plant construction project in the
348
State of Washington revealed a network of fraud perpetrgrted against power
plant owners by certain pipe and pipe fitting companies. Victim owners
included the Georgia Power Compeiny, which operated plants in Georgia,
and other plants owned by companies in Weishington, Texas, Louisiana^
etc. I participated as the assistant United States attorney responsible for
prosecuting fraud discovered in connection with the power plant
construction within the Middle District of Georgia.
The investigations and prosecutions were ceirried out by interstate
task forces consisting of selected FBI agents, IRS agents, and Assistant
United States Attorneys and others. I was the sole assistant assigned to
prosecute the fraud perpetrated on Georgia Power Company at its new
plant Sherer in Forsyth, Georgia Power Piping Company, a Pittsburgh,
Pennsylvania corporation, was successfully prosecuted for fraudulent sales
and installations of approximately one million, two hundred-thirty thousand
dollars. This case, and those similar and related, disclosed the substantial
negative impact, both financially and in lost or reduced services, on vital
public monopolies and the communities they served. Upon conclusion of
successful prosecution, which I handled, Defendant corporation paid
$1 ,221 ,249.80 in restitution and weis fined a quarter of a million dollars.
Court: United States District Court for the Middle
District of Georgia
Case No.: 87-39-MAC
Judge: Honorable Wilbur D. Owens, Jr.
Opposing Counsel: Mr. Joseph H. Davis (local counsel)
Chambless, Higdon and Carson
P.O. Box 246
Macon, Georgia 31298-5399
Telephone: (912) 745-1181
Thomas A. Donovan
Kilpatrick & Lockhart
1500 Oliver Building
Pittsburgh, PA 15222-5379
(412) 355-6466
Disposition Date: December 1 4, 1 987
4) U. S. V. Lorenzo E. Lacayo. Kosta Stanojevich. Pedro Enrique Cabrera,
and Vincents Pablo Acena
CR-86-41-MAC(WDO)
I
349
This case involved a Czech national whose specialty was arbitrage
(large, often international financial arrangements). This C5ise also involved
three other individuals, including two South Amehcan nationals. They were
charged with a conspiratorial arrangement to commit bank fraud and wire
fraud by the use of worthless cashier's checks drawn on an offshore "bank"
located in the Republic of the Marshall Islands. I was the assistant United
States attorney who supervised the grand jury investigaition and prosecuted
the case after indictment.
As background, the "bank" essentially existed on paper with only a
mailbox in the Islands as an office. The group attempted to pass cashier
checks at a branch of the Citizens and Southern National Bank in Macon,
Georgia in the total amount of $1 62,523.00. Agents of the F.B.I, were able
to arrest them in the act and confiscate the bogus checks. Jurisdiction of
the two individuals who had ties outside of the United States was
meiintained through a complex grand jury procedure. This procedure was
significant because there first had to be an investigation which could
clearly establish that the "bank" was insolvent, non-existent, or not properly
licensed, before the fraud could be established. Several hundred thousand
dollars of the "bank's" worthless cashier's checks had been successfully
passed in Rorida and Virginia because legitimate banks did not discover
their worthless nature until weeks or months after the checks had been
fonwarded for payment. This was so because the scheme, as previously
and successfully executed, allowed fraudulent checks to be recovered by
the defendants or their agents and destroyed, leaving no physical
evidence. Since, we were able to capture some major participants, recover
the checks, and hold them long enough to complete the case investigation,
not only were defendants successfully prosecuted in the Middle District of
Georgia, but it became possible for other jurisdictions to prosecute them
as well.
Court: United States District Court for the Middle
District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
Date of Disposition: August 4, 1987
Opposing Counsel: For Lacayo:
William J. Surowiec, P.A.
Public Defender's Office
1320 N.W. 14th Street
Miami, Florida 33125
(305) 545-1600, Ext. 3836
(Pled Guilty to Ct. 1 on 7/22/87. Sentenced on
10/6/87.)
350
For Stanojevich:
John M. Kierman, Attomey-at-Law
2790 Calloway Road
Suite 100
Miami, Florida 33165
(Pled Guilty to Ct. 9 on 8/4/87. Sentenced
10/6/87.)
For Cabrera:
Mr. William Castro, P.A.
Suite 601
2153 Coral Way
Miami, Florida 33145
(Indictment Dismissed.)
For Acena:
Mr. Mark Eram Frederick, P.A.
P.O. Box 385
Suite 1 , Destin Professional Center
737 Highway 98 E.
Destin, Florida 32541
Telephone: (904) 837-2115
5) U.S. V. Curtis Beebee
85-20-MAC
This Defendant was prosecuted by me, as assistant United States
attorney, for threatening the President of the United States of America (after
having been previously charged for similar offenses and after commitment
for mental treatment under relevant federal law relating to criminal
responsibility of mentally incompetent defendants).
On this occasion the defendant was prosecuted pursuant to recently
enacted federal legislation intended to address, more appropriately,
defendants whose conduct was due to or mitigated by mental disesise or
defect, etc. In prosecuting this defendant, I developed for the district the
appropriate and necessary pleadings in order to handle the case
consistent with the significant law chemges. I understeind that the
procedure I developed and pleadings I prepared were shared outside the
disthct by the Secret Service to aid in similar prosecutions as the new law
was implemented and applied.
Beebee was found not guilty by reason of insanity, but was
committed to the custody of the Attorney Genereil of the United States
because he then suffered from a mental disease within the meaning of the
351
applicable federal commitment statute.
Disposition Date: 2/12/86
Judge: Honorable Wilbur D. Owens, Jr.
Opposing Counsel: P. Craig Davis
Akin & Davis
P.O. Box 14
Macon, Georgia 31202-0014
Telephone: (912) 742-8441
6) U. S. V. Edward Starling
85-16-MAC
This case involved the prosecution of one of the most pervasive and
dedicated mass tax return frauds prosecuted in the district by the IRS. As
the assistant United States attorney, I directed a lengthy and complex
grand jury investigation and the actual prosecution of all the defendants
charged.
Starling, with the assistance of several co-conspirators, operated a
"mobile tax service" through much of a large area of the district. He preyed
mainly on minority wage earners by telling them that "the 'rich' people do
it [claim deductions falsely) all the time." By showing deductions in certain
areas of the return, i.e., miscellaneous, losses, and contributions, etc..
Starling succeeded in obtaining substantial refunds which he split 50/50
with the taxpayers, minus a preparation charge. His activities not only
earned him several hundred thousand tax free dollars, but financially
destroyed many of his modest and poor former clients when the scheme
was discovered and past taxes, interest and penalties were levied against
them by the Internal Revenue Sen/ice.
Starling's scheme demonstrated how vulnerable the IRS was to
fraudulent refund schemes where the perpetrator had apparent inside
knowledge of intemal tax return review and evaluation procedures
employed by the IRS itself. In addition to conspiracy and aiding and
assisting in the preparation of false and fraudulent returns. Starling also
pleaded guilty to false impersonation of an officer of the United States.
Court: United States District Court, Middle District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
352
Date of Disposition:
Co-Counsel: None
Opposing Counsel:
December 18, 1985
For Starling:
Michael E. Bergin
117 West Broad St, Suite 105
Fairburn, Georgia 30213
Telephone: (404) 964-5500
Disposition Date: 12-18-85
For Smith:
W. Ashley Hawkins
27 N. Lee Street
P.O. Box 325
Forsyth, Georgia 31029-0325
Telephone:
Disposition Date: 8/13/85
For Linda Thompson:
Robert C. Norman, Jr.
Jones, Cork & Miller
500 Trust Company Bank Building
Macon, Georgia 31298
Telephone: (912) 745-2821
Charge Dismissed: 12/30/85
For Davis:
A. Kenneth Secret
Secret and Associates
Bona Allen Building, Suite 500
133 Luckiest., N.W.
Atlanta, Georgia 30303
Telephone: (404) 577-2000
Disposition Date: 8/5/85
For Mitchell:
Michael E, Bergin
215 Senoia Rd.
Fairburn, Georgia 30213-1535
Telephone: (912) 964-5500
Disposition Date; 12/13/85
7)
United States v. Willieim Carlton Lawson
353
84-19 MAC. 84-20 MAC & 84-21 MAC
I supervised the investigation of these cases with several federal
agencies. The cases involved a Middle Georgia farmer and cotton
warehouser who had successfully defrauded a financial subsidiary of
Citicorp of more than four million dollars through a sophisticated fraudulent
cotton sales scheme. This was the largest such loss ever suffered by the
subsidiary and the largest such fraud case to have been brought in the
Middle District of Georgia up to that time.
Additionally, Lawson was prosecuted for defrauding the United
States Department of Agriculture. The criminal investigation, which
followed a private civil action, required more than a year to complete and
prepare due to the tremendous number of false documents which had to
be traced through several cotton manufacturing companies. After having
been confronted with a mountain of documentary evidence, Lawson
entered a plea of guilty, and was sentenced to the Federal penitentiary.
I was the sole assistant assigned to prosecute Lawson on all
charges. These cases disclosed the significant potentieil, and actual,
vulnerability of both public agencies and private financial institutions to
fraud in the commercial agriculture area where heavy government
subsidies are often present. The defendant was able to take advantage of
very complex private and government financing arrangements which he
used to maintain and conceal his fraudulent conduct and which resulted
in total losses of over six million dollars.
Court: United States District Court for the Middle District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
Co-Counsel: none
Opposing Counsel: Charles T. Erion
Erion & Exum
P.O. Box 6414
Macon, Georgia 31208-6414
Telephone: (912) 742-0168
Denmark Groover (Motion for Reduction of Sentence)
Groover & Childs
P.O. Box 898
Macon, Georgia 31203-0898
Telephone: (912) 745-4712
Disposition Date: September 11,1 984
354
8) United Stertes v. Lynwood Fincher . 723 F.2d 862 M 1th Cir. 1984^. Case No.
83-8037
I prosecuted Fincher for conspiracy to manufacture and deal in
illegally converted fireaums. Specifically, he and his co-defendants were
prosecuted for converting approximately eighteen (18) semi-automatic
Mack 10 pistols to fully automatic. Their purpose was to exchange the
converted weapons for illegal drugs from Central or South American drug
suppliers. They had learned that substantial illegal drugs could be
obtained in exchange for automatic weapons.
The govemment learned of the intended activities through a known
government informant. At the request of the govemment agents
investigating the case, the informant met with Fincher and acted as his
conduit to contact other individuals known to be willing to participate in the
proposed scheme. The informant was the critical link between Fincher, the
mastermind, and the converters and suppliers of the weapons. Fincher
was convicted upon trial and appealed. Affirmed and Held: A govemment
informant acting on behalf of ttie govemment can be the necessary link
between co-conspirators who are otherwise knowingly and intentionally
involved to accomplish the illegal purpose even though all the co-
conspirators do not personally know each other.
Cite: U.S. v Fincher . 723 F.2d 862 (11th Cir. 1984) (No. 83-8037)
Court: U.S. District Court for the Middle District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
Date of Disposition:
Opposing Counsel:
11/2/82
For Fincher:
MeU'garet C. Johnson
1312Briarcliff Rd., N.E., #11
Atiantci, Georgia 30306
Telephone: (404) 659-7799
For /Mden:
W. Ten-ell Wingfield
350 Second Street
Macon, Georgia 31201
Telephone: (912) 742-0965
Cun-ent: Cox Enterprises, Inc.
355
P.O. Box 105353
Atlanta, GA 30348-5353
(404) 843-5844
For Barron:
Thomas Witcher
Rich, Bass, Kidd & Witcher
1 1 8 East Trinity Place
Decatur, Georgia 30030
(404) 371-5050
For McDonald:
Russell M. Boston
Sell & Melton
P.O. Box 163
Macon, Georgia 31202
Telephone: (912) 746-8521
For Taylor:
Tommy C. Mann
1210 Macon Federal Tower
Macon, Georgia 31201
Telephone: (912) 742-3381
For Jackson:
Steven A. Kermish
133 Carnegie Way, Suite 1000
Atlanta, Georgia 30303
(404) 525-0457
9) United States v. Livinoston. et al
79-00073-MAC
This case is probably the most significant and demanding case that
I litigated. Livingston was the subject of a federal Racketeer Influenced
Corrupt Organization (RICO) investigation which had been underway by
the United States Attorney's Office; the Federal Bureau of Investigation; the
Internal Revenue Service; the Bureau of Alcohol, Tobacco, and Firearms;
and other federal and local law enforcement agencies for several years
prior to my appointment as an Assistant United States Attorney. Because
of threats, intimidation and fear, all the local potential witnesses were aft-aid
and refused to come fonward or cooperate with prosecution. The major
defendant had a reputation for acts of violence in the protection of his
organization from investigation and prosecution.
356
However, within months of my appointment, a break came in the
case, when certain individuals incarcerated in the State of Texas indicated
an ability and willingness to cooperate. My predecessors had either
resigned or transferred and as a result, I became the senior attorney for the
Macon Division eind took chcirge of the investigation, which continued for
several more months. The difficulty with the case was the need to
interview the newly discovered witnesses and locate corroborative
witnesses and documentary evidence without alerting the key target. This
target was so bold that he actually came to the United States Attorney's
Office in Macon and challenged the United States Attorney himself and the
investigators to "prosecute me or get off my [back]." He was confident that
a case had not been and could not be developed against him.
The investigation succeeded, and the tsirget eind others were
brought to trial on charges including (but not limited to): conspiracy,
interstate travel violations, tax violations, drug violations, and extortion. A
conviction was obtained, and he was sentenced to the federal penitentiary.
The investigation involved localities in Georgia, Florida, Texas, Louisiana,
and Tennessee. Livingston was the last and toughest of a line of major
criminal organizational heads in the Middle Georgia area to be prosecuted.
As a result of the successful prosecution, my life (and the lives of several
federal agents and local law enforcement officers, including the sheriff) was
threatened. Therefore, prosecution of the case not only required a
sophisticated and highly secret investigation, and involved complex
evidentiary matters, but also required participants who were literally willing
to put their lives and personal safety on the line in order to enforce the law
and bring these defendants to justice.
Main case affirmed on appeal without opinion (habeas corpus
action). United States v. Livingston . 756 F.2d 884 (11th Cir. 1985).
Plea of Guilty to related charge (Case No. 79-00071 -MAC) reversed
at United States v. Livingston . 665 F.2d 1003 (11th Cir. 1982).
Date of Disposition: March 18, 1980 (79-73-MAC)
Judge: Honorable Wilbur D. Owens, Jr.
Court: U.S. District Court, Middle District of Georgia
Opposing Counsel: For Livingston:
357
Robert B. French
Box 596
Ft. Payne, Alabama 35967
Telephone: (205) 845-2250
AND
Floyd M. Buford
165 First Street
Macon, Georgia 31201
Telephone: (912) 742-3605
AND
Ms. Daryl Dantzler
Attomey-at-Law
Mercer University Law School
Macon, Georgia 31207
Telephone: (912) 752-2601
For McPherson:
O. Hale AInnand, Jr.
389 Mulberry Street
Macon, Georgia 31201
Telephone: (912) 746-2237
10) Whitehead v. Hasty. 235 Ga 331, 219 S.E.2d 443 (1975).
Bibb County Superior Court, Civil Action No. 43280-75.
This case was one of the first I tried as an Assistant District Attorney.
It was an action for ctvi! injunction by the District Attorney, in his official
capacity as attorney for the public, for the purpose of abating the operation
of a 'massage parior" where certain sexual acts were performed by
employees, (not including actual sexual intercourse) in the regular course
and operation of the business.
This establishment, and others similar, were being erected in the
community and other areas but with substantial protest from the general
public, businesses, and residents located near these establishments. At
that time there were no Georgia criminal statutes which specifically dealt
with the complained of activity, and in fact, a number of criminal cases in
other jurisdictions had been reversed on appeal or dismissed.
\
358
I was assigned to accomplish the cessation of the conduct which
was under complaint. Upon investigation and legal research, I determined
that the acts could possibly be enjoined under existing and long-standing
nuisance statutes. An injunctive action was filed, served and tried. The
trial court found that a public nuisance existed and ordered the same
abated. It should be noted that no attempt was made either by the
injunctive action or the court's order to prevent the operation of a legitimate
meissage business, but each was only directed at the sexual conduct which
was specifically ordered adaated. However, since the operators were
unable to carry out the admitted primary purpose of their business, it
closed. Defendants appealed. Held: Affirmed.
Court: Superior Court of Bibb County, Georgia
Judge: Honorable Hal Bell
Date of Disposition: February, 1975
Opposing Counsel: Richard M. Nichols
(Not now believed to be a practicing attorney)
19. Le gal Activities : Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or legal
matters that did not invoh/e litigation. Describe the nature of your
participation in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been waived).
My legal career prior to becoming a judge has empheeized the
litigation side of practice. However, my practice experience heis been
much broader. For example, as a clerk for the local district attorney's
office, I was involved in extensive research and writing on behalf of the
district attorney and his attorney staff. This included drafting appellate
briefs. My brief writing included the first petition for writ of certiorari from
the Court of Appeals of Georgia to the Georgia Supreme Court (Wiley v.
State . 131 GaApp. 511, 206 S.E.2d 140 (1974) (No. 49154). An adverse
decision of the appecils court was reversed involving a revocation of
probation and sentence under the State's First Offender Statute (cite:
O.C.G.A. §42-8-60 et seq.)
In addition to my work as a felony prosecutor for the district
attorney's office, I worked regularly in the Juvenile Court and established
and administered a Child Support Recovery Unit in 1975, pursuant to
359
newly passed federal law intended to involve district attorneys' offices in
tfie establishment of paternity and the enforcement of child support
obligations. The major part of this activity was to interview mothers so that
putative fathers could be identified and contacted. Contractual
arrangements for support and affidavits of paternity were usually obtained
without litigation. Litigation was instituted, when necessary.
As an assistant U.S. Attorney, I was involved in numerous sensitive
investigations directed at public corruption and racketeering organizations
and illegal drug organizations. I also handled investigations and
prosecutions of fraud against the government, including in the guaranteed
loan area for the Department of Education and cases within the
responsibility of the Department of Commerce. In carrying out these
investigations and prosecutions, I also worked with the following law
enforcement agencies: Federal Bureau of Investigation, Drug Enforcement
Agency, U.S. Postal Inspector, U.S. Department of Immigrations, Internal
Revenue Service, Secret Sen/ice, Department of Agriculture, etc., and local
law enforcement agencies.
In private practice I was a general practitioner, but with an emphasis
on litigation. I represented criminal defendants in significant felony cases
in state and federal courts by appointment of the court and on retainer.
These cases included property and crimes against persons, bank robbery
and drug offenses.
I was appointed to represent a co-defendant in a federal drug
prosecution which was reputed to be the largest and most significant to the
district. Some defendants received sentences as great as life without
parole. My client was acquitted by directed verdict on motion following the
close of the government's case in chief. I was sole counsel for that
defendant, who was, incidentally, the only defendant acquitted.
While in private practice, I also represented a significant local
developer in a zoning matter involving a conflict between local county and
city ordinances with superseding federal regulations. The matter was
resolved in my client's favor without litigation.
Additionally, since becoming a Superior Court judge, I have also
been involved in professionalism activities inspired and promoted by the
Chief Justice of the Georgia Supreme Court, a member of the Commission
on Family Violence, the Committee on Gender Equality, and the Bench and
Bar Committee. Over the last two years, I have been a part of a drug
abuse task force in reviewing the effects of drug abuse and addiction on
the resources of the Court system.
360
II. FINANCIAL DATA AND CONFUCT OF INTEREST (PUBUC)
List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other future
benefits which you expect to derive from previous business relationships,
professional services, firm memberships, former employers, clients, or
customers. Please describe the arrangements you have made to be
compensated in the future for any financial or business interest
If confirmed, I will resign my present position (superior court judge),
and as a result, would receive the following in addition to any unpaid
regular salary due me: $15,172.41, as of February, 1994. This amount
represents my retirement account in the Superior Court Judges retirement
fund.
With regard to my former firm, Mathis, Sands, Jordan & Adams, now
Mathis, Jordan & Adams, P.C, I was paid a lump sum representing my
interest in the firm, except for cases originated by me or left as a part of
my pending active files, but retained by the firm. By agreement of April 23,
1991 , I am to receive 10% of the fees from those cases to the extent the
same exceed the lump sum already received. Those cases have been
identified and records are maintained for payment purposes as each case
is closed. Additionally, I own a one-quarter undivided interest in the
building and the lot on which one of the law offices is located. It is
expected that the same will be sold to the remaining partners in the firm
as soon as the details can be worked out.
My relationship with my former partners is known, and neither
will practice before me until all ties are severed and after an
appropriate time has passed, unless the same is waived by all
parties after full disclosure, and there exists no appearance of
impropriety.
As a member of the Board of Directors of Bank Corporation
of Georgia/First South Bank, N.A., I own 100 shares of stock
purchased at $10 per share. I will resign the Board upon
nomination and confirmation and would, of course, recuse myself
fi'om hearing any matters involving the corporation, affiliates,
officers, directors or any matter relating thereto which could give rise
to actual or an appearance of conflict.
Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
361
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to
which you have been nominated.
Since my financiaJ, present and former, business interests are very
limited, I do not expect frequent conflicts, if any. As stated above, I will
recuse myself from any cases involving a conflict, or the appearance of
same. Since my assignment, if confirmed, will be in the Middle District of
Georgia, Albany-Americus Division, it is unlikely that any actual conflict will
develop with regard to my former law partners because my former firm's
federal practice is limited in scope, and largely to the Macon Division of the
district which is handled by two other active judges. Likewise, the above
corporation has only one branch in the entire fourteen-county Albany-
Americus Division, while its major corporate office is located in the Macon
Division. However, during my initial service, I will particularly check each
case for any evidence of conflict and take action immediately to avoid the
same when discovered. I will follow the guidelines of the Code of Judicial
Conduct.
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the
court? If so, explain.
I have decided in the best interest of the position to which I have
been nominated, and in fairness to my present and former associations,
that I should terminate those relationships as soon as the same can be
properly and reasonably accomplished. However, there are two possible
exceptions. I have been named to the Board of Visitors of the Walter F.
George School of Law (Mercer University). I would be honored to continue
that service, unless I am prevented by some rule or conflict which becomes
known to me. Of course, I would resign, as so directed, if any apparent
conflict arose and, if confirmed. Additionally, I have been invited to be a
charter member of the Board of Directors of the University of Georgia
Fanning Leadership Center. If confirmed, I would not accept that position
unless approved by the appropriate authority.
4. List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria,
and other items exceeding $500 or more (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government Act of 1978,
may be substituted here).
See, Financial Disclosure Form attached, dated February 14, 1994.
5. Please complete the attached financial net worth statement in detail (Add
362
schedules as called for).
COMPLETED STATEMENT AND SCHEDULES ATTACHED.
6. Have you ever held a position or played a rule in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates
of the campaign, your title and responsibilities.
No.
363
III. GENERAL (PUBLIC)
An ettiical consictoration under Canon 2 of the American Bar Association's
Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to
participate in serving ttie disadvantaged." DescrilM wtiat you have done to
fulfill these responsibilities, listing specific instances and the amount of time
devoted to each.
I have endeavored to comply with Canon 2 of the American Bar
Association's Code of Professional Responsibility in several different ways:
Consistent with the Judicial Canons, I have not solicited funds, even
for charitable purposes, since becoming a judge. However, I have
remained involved to the extent that I could, chiefly by speaking frequently
to elementary, secondary and college students regewding various issues
involving and affecting youth, as well as other organizations and groups.
I have talked regularly with young people of all ages (both in public
and private institutions) emphasizing the importance of avoiding criminal
activities and, hence, its consequences. I have also emphasized the
importance of education, the establishment of appropriette goeds,
dedication to excellence, respect for self and others and personal
responsibility.
I have participated in the local bar association's annual Law Day
activities as a former Chair and while an officer of the local bar. This
participation included establishing a federal court and courthouse tour for
school students, and I have given brief talks regarding the year's ABA Law
Day theme to similar and civic groups.
While an attomey, I also handled cases for the elderiy and the
indigent at lower rates, or under arrangements that allowed for flexible fee
payments.
I did not always file vouchers for representation of indigent
defendants represented at trial and on appeal.
I have served on the following Boards:
Family Counseling Center - The Center provided counseling to
indigent and disadvantaged families. The Board was very active in
seeking funds, establishing new programs and the promotion of
healthy relationships through a series of plays dealing with race
364
relations and institutional racism, death and dying, and alcohol and
drug abuse, etc., and their effect on the family. For these plays the
group received the Volunteer of the Year Award. I participated in
dozens of performances and follow-up discussions which required
a minimum of one-heilf to one and one-half hours to do.
Boys & Girls Clubs of Macon - Included fund-raising and special
programs to improve positive social and educationsil experiences for
children within their communities, especially after school eind during
the summer and holidays. I participated in several annual television
auctions which required several hours per auction and additional
hours and days prior to and after completion of tiie auctions.
Kiwanis Club of Macon - Served as Chair for two summers to
provide food for several hundred children during special summer
camp for children with psychological problems or mental illness, etc.
Three separate groups in one-week blocks were served each
summer. My job was to personally coordinate the order and
delivery of food from suppliers on a timely and scheduled basis to
the campsite.
Volunteer Macon - Organization actively sought volunteers from the
community to augment agencies, etc., or organizations which
served the elderly, youth or disadvantaged or charities. I served as
a member of the board of directors.
Macon Humane Society - Worked to provide and promote the
humane treatinent of animals. I served on the board of directors.
Macon Symphony - In addition to normal support for the orchestra
and music in the local community, the Board has endeavored to
make the music program available to youth, public and private
schools and the disadvantaged. I serve on the board of directors.
Community Foundation of Central Ga., Inc. - Newly formed
foundation for the Middle Georgia area to attract funds to improve
philanthropic contributions to the quality of life in the community.
Note: I do not participate in the solicitation of funds.
Macon Jaycees - Regulsirly put on programs for disadvantaged
children such as magic shows, and provided food and toys to
identified needy families. As a member, I was actively involved in
the preparation phase of the programming, as well as the actual
delivery of food, toys, etc., to families.
365
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged, to any organization
which discriminates - through either formal membership requirements or the
practical implementation of membership policies? If so, list, with dates of
membership. What you have done to try to change these policies?
In the past, I belonged to the Macon Jaycees (Junior Chamber of
Commerce), I now understand that at some time in the past the
organization may have enforced discriminatory membership practices.
However, I have never supported such practices and have always
supported open membership without regard to race, sex, religion, or
national origin. In fact, I was one of the earliest African-American members
of my local chapter. I also know of other minority members and believe
the organization is now, and for many years has been, open to and has
women members. I was a member in the 1970s.
I am presently a member of the Homosophian Civic Club, Inc.,
which was originally a men's club. I favor the admission of women. The
Club is open to application from women and the constitution either has
been or is being revised to reflect same. I have personally offered to
sponsor a woman candidate, if she follows through on her stated intention
to apply. [See , the attached copy of a letter to me, written at my request,
from the organization's current president]
Is there a selection commission in your jurisdiction to recommend candidates
for nomination to the federal courts? If so, did it recommend your
nomination? Please describe your experience in the entire judicial selection
process, from beginning to end (including the circumstances which led to
your nomination and interview in which you participated.).
Yes. My name was among others reported to Senator Sam Nunn
as qualified for the position for which I seel< confirmation.
Senator Nunn, the Democratic Senior Senator from Georgia,
appointed a committee to review the qualifications of persons evidencing
an interest in being appointed to fill FederaU judicial or U.S. attorney
vacancies in Georgia. The committee was made up of a cross-section of
individuals, including those from the legal and business professions.
The committee prepared and forwarded a 65-question questionnaire
to each person who had been recommended or who had indicated an
interest in an appointment. The completed questionnaire was due not later
than Friday, April 30, 1993. A copy of the completed application was
366
required to be sent to each of the nine (9) members of the committee, eind
to Senator Nunn. Thereafter, each applicant was interviewed at a time
scheduled by the committee. I submitted a timely application.
Following the completion of interviews for each vacancy for each
federal district, the committee provided to Senator Nunn the names of a
number of persons whom they believed to be qualified for each position.
Senator Nunn later personally interviewed each person referred to him by
the committee as qualified. Thereafter, he notified his chosen
recommendee, announced and forwarded his recommendations to
President Clinton. In this way, I was recommended for the vacancy in the
Middle District of Georgia, Albany-Americus Division.
In September of 1993, 1 received from the Office of the White House
Counsel copies of forms required to be completed, as a part of the
nomination process following recommendation to the President. Included
were forms for submission to the Department of Justice, the American Bar
Association, the United States Senate, the Federal Bureau of Investigation,
and certain financial disclosures and waivers. I completed each requested
document and fonwarded them to the Office of the Counsel.
Thereafter, I was contacted by an official of the Department of
Justice who interviewed me initially by telephone. It is my understanding
that assigned Department of Justice officials or representatives reviewed
and verified references and followed up on my documentation and
interviewed persons familiar with me personally and professionally. I later
travelled to the Department of Justice where I was personally interviewed
at length by a panel of Justice officials.
Prior to my interview at the Department of Justice, I was personally
interviewed by an agent of the Federal Bureau of Investigation. This
interview was a part of my official background check carried out by the
Bureau. The agency had previously been provided documentation which
I had completed for use in the investigation.
Prior to my Department of Justice interview, I was directed, by a
Department of Justice official, to f onward my American Bar Association
documents to the appointed ABA official. I immediately complied and was
later personally interviewed in Atlanta, Georgia by an American Bar
Association representative. A report was prepared by the representative
which was later fonwarded to the Department of Justice by the ABA
Standing Committee on Federal Judiciary.
On February 9, 1994, 1 returned a personal call to the White House
Counsel. During the call, I was advised that the President had earlier that
day formally forwarded my nomination to the United States Senate as his
f
367
nominee to the United States District Court for the Middle District of
Georgia.
On the same day, I was directed, by an officied of the Department of
Justice, to complete the required Fineincial Disclosure Report and submit
it to the Judicial Ethics Committee, Administrative Office of the Courts, not
later than Monday, February 14, 1994. I complied. I was also directed to
review and update, where necessary, the United States Senate
Questionnaire for Judicial Nominees (the instant form) for submission as
soon as possible in order that the Senate Judiciary Committee may
properiy consider my nomination.
At all times, I was wamily end respectfully treated in an atmosphere
and environment which I felt was directed at selecting qualified candidates
for each position.
Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how you would rule on such
case, issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism involving "Judicial
activism.'
The role of the Federal judiciary within the Federal government, and within
society generally has become the subject of increasing controversy in recent
years. It has become the target of l>oth popular and academic criticism that
alleges that the judicial branch has usurped many of the prerogatives of
other branches and levels of government Some of the characteristics of this
"judicial activism* have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
368
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
As a sitting judge, it has been my practice to refrain from public
comment or criticism of the decisions or actions of judges. This I have
done for two basic reasons: (1) As a judge, it is inappropriate for me to
openly criticize the decisions and actions of fellow judges in that to do so
would tend to give the appearance of bias or prejudice on matters in
controversy while the same are within the breast of the courts and under
review. (2) The overall effect of such comments could very well serve to
reduce respect for the court and its authority.
However, I sincerely respect and acknowledge the necessary £uid
indispensable role of the United States Senate in reviewing and evaluating
the qualifications of Federal judicial nominees. Therefore, I believe it
appropriate that I comment, but that such comments be limited to only a
discussion of my view and philosophy of judicial decision-making.
Well-founded and reasoned judicial decisions and rulings can best
develop where due regard is given to legal precedence and procedure.
In turn, this regard allows for and permits the development of clearly
defined legal issues considered in the appropriate jurisdiction as dictated
by the Constitution, by statute or binding precedent.
I also believe that our system of government works best, and as
intended, when the constitutionally established separation of powers is
recognized, acknowledged, and allowed to function. The political and
legislative processes must be allowed to freely proceed and benefit from
public debate and discourse. It is equally important, however, that every
litigant have access to and the protection of our courts, consistent with the
Constitution and with the laws enacted by the legislative body pursuant to
and consistent with its powers under the Constitution.
A Federal judge must, to the best of his or her ability, decide only
those issues properly before the Court, consistent with its jurisdiction as
conferred by Article III of the United States Constitution and the statutes
passed by Congress that also confer additional jurisdiction. This critiC2il
process must be carried out in a fair mcinner, based solely on the
applicable taw and relevant facts, without favor, affection, bias or prejudice.
This, without in any way suggesting what would be my decision on any
issue, I promise, to do, if confirmed.
369
<nionr:iMri.nNCHLixnNB00KagFireBr(NUQ
OOBTDK
uTJ FINANCIAL DISCLOSURE REPORT
aiymt ■■|ii1i>«1 br tha Ctblos
amtB^ let of l<n, nb. L. lo.
101-lM, ■cmabu 10, 1M9
(S O.S.C.A. 1pp. 6, fflOl-lU)
first, ■'^■lls laltlAl)
Sands. Willie L.
(Preferred: W. Louis Sands)
2. Oonrt or Oi^«nlTir1n«
Untced States District Court
Middle District of Georgia
1. Data of lapirt
2/14/94
4. Tltla (Irtlela III ]ad«« ladlcata actln or
fall- or pirt-tliS) ^
United States District Court Judge
5. aiinrT Typa (ehacfc apptoprlata CTpa)
X_ ■o.ia.tKm. ll.t .2/9/94
talUal laaaal rlaal
C. l li orTl iij rarlod
1/1/93 - 1/31/94
T. Ckaabara or offtca litclnm
Bibb Superior Court
Room 310 Bibb County Courthouse
Macon, Georgia 31201
■. Ob tka baala of tha lafm
la, la af oplaloa, la oa
■atlaa mnTalnail la thla »a|iort. It
pllaaoa wltb appllcahla lawa aad
aaviaiflag Offlcar Slgaatara ,
^slMPORXANT JfOro&^n^^'^Mniiafara joo^^ must be fiiBowed. Complete
, 'riifrirfm the NONE toe fcc esdi secfloo' where wm hare no tmortaUe lalbraiatioa. Sign onUm
'X'\\ -^■f^^'^f^pMr'.^
I. POSITIONS. (RqKming individual only; see pp. 7-8 of Instrnctions.)
POSITION NAME OF ORGANEATION/ENTrTY
n
NONE (So rapuctabla poaltlooa)
Member
Member
Board of Visitors. Walter F. George School of Law fe
Dean Search Committee & Executive Committee of Alumn:
Mercer Dnlverslty Planning Committee for 30th Year of
Black Enrollment
(cont'd)
II. AGREEMENTS. (Reporting individual only; see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
'I NONE (lo raportaals agi
4/23/91
Stock purchase agreement which provides that seller be paid the greater
nf a lump sum nr Ifll nf all f»»g affnalTy i-pppivpH frnm rho final H<spn-
sition of Identified cases in which seller had an interest at time of re-
. Signarinn frnm firm ParM-gg; U. T.nnig SanHs. Spllgr. Marhi«:. .TnrHan. (.
Adams. P. C. (formerly Mathis. Sands. Jordan & Adams. P. C). Charles A.
Mathis. Jr.. T). .lames Jordan and Virgil Adams. Purchasers.
III. NON-INVESTMENT INCOME. (Reporting individcal and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (lo raportabla aoa-lavaataai
1/93 - 12/93
Superior Courts of Georgia
I
1/93 -
12/93
1
1/93 -
12/93
4
1/93 -
12/93
Bibb County Commissioners (county supplement)
GROSS INCOME
(youis, not spouse's)
$ 72,494.03
1 /PT - 17/93
Crawford County Commissioners (county supplement)
Peach County Commissioners (county supplement)
Steward Chaoel A.M.E. Church (organist)
S 17,250.06
S 1,153.80
S 3,532.86
S 600.00
370
^i*,,.-^..-
tnnASCsM-
DISCLOSURE REPORT (cont'd)
I o( I
Willie L. Sands
Dsto oC ■ ■ p o rt
2/1A/94
iw REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment
(Lodada Ihoce to cpoose and dependent chlldrcK nse the paicntbedeals '(S)' and '(DC)' to indlcMe reportalile
rdmborscmenis and gifts recdTcd tj tpouse and d ep en d en t children, respecthciy. See pp.13-15 of Inmncllaas.)
SOURCE
NONE (Bo rack CTgnrtjhU rail
"EXEMPT"
a
DESCRIPTION
(tftal
"EXDIPT"
V. OTHER GIFTS. (Indndes thoM to cpoose and drnendmt cUUrcn; nae the paitatheticals '(S)* and *(DC)* to
Indka lr other gifts i e c e i »e d by spoosc and oepeadent
D
SOURCE
NONE (ao rack nvorubla (Ittal
"EXEMPT"
fWMren, tespectHc^y* See pp.i5-i6 of Instmctloaaa)
DESCRIPTION VALUE
"EXEMPT"
"EXDIPT"
VI. UABIUTIES. (Indodcs those of spouse and dependent children; faidicate where applicable, person responsibie
for UabililT br using the parenthetical '(S)' for sepanlc Uabilitf of spouse, '(J)' for Joint liabilily of reporting
individual and spmue, anT^(DC)* for liabiUtjr of a dependent diUd. ^ce pp.i^l8 oTInstenctioas.)
CREDFTOR
NONE (ao raporubla llabtlltlral
Lincoln National Insurance Co.
n
DESCRIPTION
Personal loan fron cash value of Ins.
VALUE CODE*
• .mun I
a - «U,0«e or lara
« - S3M,001 » s»oa,ooo
o • ss«o,ooi to n.ooo.ooo
%l,9C0,00Q
371
pn^ANClAl.
DISCUSSURE REPORT (cont'd)
Maa oC P«c«aa 9myiirttmg
Willie L. Sands
Outm ot lltinrt
2/14/94
t/ii irjVESTMENTS and TRUSTS - income, value, transactions, (indnda ttwie or
VII- and drprndrnt cfaUdrai; see pp. IS-Z7 of lutmctiaat.)
(CcfSfagcri
IM lAdPiaSI «a4 ■ u aw K ^^Ci* tor
^ «Bi^c UM pnoc u*cIosur*.
"sis?
VPf}
^-.
J valM
at *ad ot
Cod*
''Craxtvao^oaa during rvportlag period
»^ui.
-ir;
^roM dlacloanrm
uoatb
<3)
coda'
S5i
n
NONE (■.
— af , OC
^ 100 shares of common stock
ig
Bank Corporation o
rss.
E ] E
M P
Superior Court Judges Re-^
tlrement account (unvested)
E C E
M P
T ••
' iundlvided Interest in bdlg
i lot - Baldwin County, Ga
C E
M P
■a/Cala <
Col. »1 t P4I
^•$1,000 or Immm
t-sis.oei to iso.aoo
■•$1,001 to »,soe
iSO.OCl to tlOO.flOO
<:-*z,sai to s.ooo
- ItOO.OOl tn SI
ligiT nig*«^tr»!^?88i°°' iS3ia.arti'iggt8SS
0-*S,001 to $15,000
taoo Col, ci 4 Oil
3 valao Motboo Coda*:
J>il9,000 or
ll-$2S0.001 to S500.OOO
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t.{U:Mt to IM,
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(•coat (raal aatato our)
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-Hook Valua
ifcEatlaatad
TaCaah/MarkM
372
, DISCLOSURE REPORT (cont'd)
Willie L. Saads
Dtta sf Baiact
2/U/9it
y,,/ ADDITIONAL INFORMATION or EXPLANATIONS, dndiote pot or Report.)
VI 1. - This is a loan from the cash value of one of my personal Insurance policies. A net
cash value remains after deducting the full amount of the loan.
VII 2. - This is the expected distribution from my retirement account upon resignation of
my present position, if confirmed.
3. - I am the owner of i undivided interest In the lot and building upon which one of
the
offices of m>
former
law
firm is
located. I expect to dls
pose
of
my
Interest
in
said
property
as
soon
as
Che sane
is reasonably practical
for
all
parties.
I
have no
Interest
in
the
firm
itself
except as set out in Part
II.
above.
IX. CERTIFICATION.
In compliance with the provisions of 28 U^.C S 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activiiies, and to the best of my knowledge at the time after reasonable inqniiy, I did not perfbnn any adjadicatoiy
function in any litigation during tbe period covered by this rqx>rt in which I, my spouse, or my minor or dependent children
bad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such Uligation.
I oenily that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of giAs which have beeii>
reported are in compliance with the provjsie^ of S U.S.C.A. app. 7, § 501 et seq., 5 U.S.C S 7353 and Judicial Conference
regulations.
Signature
Due
2/14/94
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCnONS (5 U.S.CA. APP. 6, { 104, AND 18 VS.C. i 1001.)
. i^>.
'.<:.■-. . t,->^^f - -^'--i..' _^-,j,, .
UCnONS:
FDLINOINSTR'
MaB agned origituil and 3 additional copies to:
JodicSflJ Eiliics Coimniitee
Admlnlitnillvo Offloe of the
United States Courts
Washingtrtn, DC 20544
373
• > vcflLOSOSE REPORT (cont'd) Name: Willie L. Sands
Date: 2/14/94
I.
POSITIONS (cont'd)
Member
Member
Member
Member
& Vice Fres.
Member
Member
Member
III.
NON-INVESTMENT INC
6.
1/93 - 12/93
7.
1/93 - 12/93
8.
1/93 - 12/93
9.
1/1/93 - 1/31/94
0.
1/1/93 - 1/31/94
1.
1/1/93 - 1/31/94
2.
1/1/93 - 1/31/94
3.
1/1/93 - 1/31/94
4.
1/1/93 - 1/31/94
Board of Directors, City Club of Hacon
Board of Directors, Comsunlty Foundation of Central Georgia
Board of Directors, First South Bank of Middle Ga./Bank Corp.
of Ga.
Georgia Commission on Family Violence
Georgia Supreme Court Task Force on Substance Abuse
Board of Directors of Macon Symphony
Board of Directors of Midsummer Macon (term ended - 1993)
First South Bank of Middle Ga. (Director)
$ 4,250.00
WMAZ-TV (Weather Caster /Community Services
Director) (S) $26,795.10
Robert Cummlngs d/b /a Reflections Promotion (S) $ 1,055.00
Superior Courts of Georgia
Crawford County Commissioners
Peach County Commissioners
Bibb County Commissioners
First South Bank of Middle Ga.
WMAZ-TV (S)
$ 6,112.00
$ 115.38
$ 333.33
$ 1,750.00
$ 750.00
$ 2.640.00
374
FINANCIAL STATEMENT
NET WORTH i
Provide a complete, current financial net worth statenient which itemizes in detail all assets (including b
• cecums. m\ estate, securities, trusts, investments, and other financial holdings) all liabilities (including de
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate member
your household.
ASSETS
UABI'JTIES
Cjih on hsnd and In banKi
1 A202
80
Notts piytbl* to banks — Mcurtd
Not** parabi* to bank»— un»*cui»d
Notn payibia to rtUt>v«s
Notts payabla to othara
Accounts and bills due
Unpaid Incoma tax
Othar unpaid tas and Intamt
Raal ntata ntortsagvi payabia — add
»ch^dula
Chattel mortsates and olhar Ham
pajrcbla
Othar debts — Itemize:
Educational loan (spouse)
20021
3b
U.S. Co»»fnmtnt ••cundri — add
1 200
00
1106
1$
00~
UiJ»d veeuriBe* — »dd tch»doU
3000
—
Unllrt»d Mcuf1li« — idd »d»»dul«
1000
UU
14382
97
""•
Account! «nd noln recatvabla:
-
~*
Out (roin ralttivn and tri*ndi
_
Out from o<h€re
91811
90
Doubtful
111777
50
8437
82
ftui rtUtc mortC>ff*=* r*c«lv«bU
94^53
75r
85
1
>U/toi 4r>d olfitr p4r»onal property
5682
79'
8909
1
1
unpaid salary due from
7000
nn
retirement account
15172
41
ToUl lUbilities
Net Monh
Toal liablllUei and net worth
144443
02
98272
94 i
Toui itun
242715
56
242715
96
CX)NnNCCt<T UABILITItS
20
GENERAL INFORMATION
Ai •ndorMr, comaker or cutranlor
769
Are any assets pledged? (Add sched-
ule.) Yes.
Are you defer>dam In arry suits or
t«S»i actlonsrYes , Child supp
Have you vmr taken baniuvpicyr No.
8437
87!
On I*ji4i or cont/icu
jrt modi
Lecel CUims
icatic
Provision lor r»d«ril 'nccm* T«i
Ottiar ip^lil dtbt
■
-
imcHCff: nm n. nwm nnMDcanjcroFiiBBrirwQ
ousnois
375
FINANCIAL STATEMENT
NET WORTH
SCHEDULES:
1,) U. S. Govenunent securities - U. S. Savings Bonds
2.) Unlisted securities - 100 shares common stock. Bank Corporation of Ga.
3.) Real Estate Owned:
a) house and lot, Macon, Bibb County, Georgia
b) J undivided interest in building and lot Milledgeville,
Baldwin County, Georgia
4,) Real Estate Mortgages payable:
a) home mortgage: $45,127.62 *
equity line 32,434.28 **
b) i of mortgage on building & lot: $14,250.00***
*Flrst Union Mortgage Corporation
**Flrst Union National Bank of Georgia
***Century Bank i Trust
5.) Pledged assets:
a) 1993 Volvo (i/c/w its purchase, i.e. bank note)
b) grand piano *
c) some furnishings*
♦Pledged 1/c/w Associates, First Family Financial Services,
& Yamaha Music Finance
NOMINATION OF MICHAEL BROMWICH, TO BE
INSPECTOR GENERAL, U.S. DEPARTMENT
OF JUSTICE
FRIDAY, APRIL 22, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 11:04 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein
presiding.
OPENING STATEMENT OF SENATOR FEINSTEIN
Senator Feinstein. The Judiciary Committee will come to order.
This morning, the committee will conduct a hearing on the nomina-
tion of Michael Bromwich to be Inspector General of the Depart-
ment of Justice.
Let me say for the record that the nominee has completed a very
detailed questionnaire on his qualifications, his experience, his fi-
nances, and his philosophy. The portions of the questionnaire avail-
able to the public will be printed in the record of this hearing. We
will also keep the record open for a limited time just in case mem-
bers of the committee would like to submit written questions.
We have received dozens of letters in support of this nomination.
We will place these letters in the record, also.
[See letters in support of Michael R. Bromwich, p. 444.]
Of course, we will place in the record any introductory state-
ments. At this time, I would like to enter into the record a state-
ment of Senator Orrin Hatch, the ranking minority member of this
committee, and a statement by Senator Daniel Moynihan on the
nomination of Michael Bromwich. These two statements will go
into the record.
[The prepared statements of Senator Hatch and Senator Moy-
nihan follow:]
Prepared Statement of Senator Orrin G. Hatch
The Judiciary Committee today considers the nomination of Michael Bromwich to
be Inspector General of the Department of Justice.
The Inspector General's duties, as set forth in Attorney General Order 1638-92,
dated December 11, 1992, relate essentially to allegations concerning waste, fraud,
and abuse at the Department of Justice, or by the Department's contractors grant-
ees or other recipients of Departmental benefits.
Another office, the Office of Professional Responsibility (OPR), handles allegations
of prosecutorial misconduct or unethical conduct by Department lawyers and allega-
tions of misconduct by investigative and law enforcement personnel at the Depart-
ment.
(377)
378
In my view, keeping OPR separate from, and independent of, the Inspector Gen-
eral's office is very important. The Attorney General should be able to turn to an
independent office, headed by a nonpolitical, career lawyer, reporting directly to the
Attorney General. Accordingly, I was troubled by reports that Attorney General
Reno was considering the merger of the two offices.
Following correspondence from myself and several of my Republican colleagues on
the committee, I was pleased to receive an April 5, 1994, letter from Attorney Gen-
eral Reno in which she advised me that she had "determined not to merge the [two
offices] or in any other way to place OPR under the supervision of the IG. '
Attorney General Reno added, "I am convinced that the continued separation of
the functions and responsibilities of these two components will help to ensure that
we maintain the highest standards of professionalism within the Department."
I construe these remarks as meaning that OPR will retain its current responsibil-
ities as well as its status as a separate office.
I look forward to the nominee's testimony.
Prepared Statement of Senator Daniel Patrick Moynihan
Mr. Chairman, it is my great pleasure to introduce Michael Bromwich to this hon-
orable Committee. I believe he will be an outstanding Inspector General at the De-
partment of Justice.
Mr. Bromwich's credentials are exemplary. He spent almost ten years at Harvard
University, graduating in Social Studies from Harvard College summa cum laude,
receiving a Master of Public Policy Degree from the John F. Kennedy School of Gov-
ernment, and receiving his law degree from the Harvard Law School.
He has worked in the Criminal Division at the United States Attorney's Office in
the Southern District of New York, served as an Associate Counsel and Special
Counsel in the Office of Independent Counsel for the case of United States v. Oliver
North, and was a partner in the law firm of Mayer, Brown and Piatt. Mr. Bromwich
was the first non-New York lawyer admitted to the New York Council of Defense
Lawyers. Although he is originally from California, New York is proud to claim him.
He currently serves as Assistant to the Attorney General at the Department of Jus-
tice.
Many distinguished Americans have endorsed Mr. Bromwich. Leonard Garment
describes him as "an able and vigorous prosecutor." New York City Mayor Giuliani
characterizes him as "a consummate professional: fair, objective and reasonable."
Mr. Chairman and members of the Committee, I am pleased to recommend Mi-
chael Bromwich to you, and to urge his speedy confirmation.
Senator Feinstein. Although I have a statement, I would like
very much to defer and I would like to introduce Representative El-
eanor Holmes Norton and ask you if you would care to make an
opening statement of introduction.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you, Madam Chairperson. I do not
need to tell you that the Inspector General of the Justice Depart-
ment should be a person of unusually high integrity, great inde-
pendence, deep experience, and keen intellect. That is a description
of Michael Bromwich, whom I am happy to recommend to you.
Madam Chairwoman, today.
Michael Bromwich is a Harvard College Phi Beta Kappa. He
then went on to Harvard's John F. Kennedy School of Government,
where he earned his master's in public policy, and then to the Har-
vard Law School. Mr. Bromwich has extensive and varied legal ex-
perience of the kind that will hold him in good stead in the position
for which the President has nominated him.
He has had extensive experience as a U.S. attorney in the South-
ern District of New York. He has practiced here in the firm of
Mayer, Brown and Piatt, where he participated in complex litiga-
tion, including white collar crime and related matters, and the su-
pervision of internal corporate and organizational investigations.
379
We are proud that he took the leadership in his law firm in devel-
oping a pro bono program for the representation of indigent defend-
ants in the District of Columbia's Superior Court.
Mr. Bromwich was special counsel at the Office of Independent
Counsel during the Iran-Contra hearings. He had substantial re-
sponsibility for key parts of that investigation. He handled the pre-
trial proceedings for the immunized testimony of John Poindexter.
He represented the Independent Counsel's Office in the remand
proceedings in U.S. v. Oliver North and tried that case.
In the District, we are particularly proud that this talented
young man and his young family live here, although I concede that
he was born in California and his parents are still your constitu-
ents, Madam Chairwoman. With him here today are his wife,
Felice; his son, Daniel, who is 7; his son, Jonah, who is 4. I am
sorry to report that 1-year-old Kira had to be left home because of
age. In any case, we are very, very pleased that he lives here and
that the President has chosen to nominate him. I strongly rec-
ommend Michael Bromwich to you. Madam Chairwoman.
Senator Feinstein. Thank you very much. Representative Nor-
ton, and welcome to this House. As you probably know, I am a big
fan of yours and so I enjoy watching you in the House of Rep-
resentatives, and I thank you very much for taking time to be here
this morning.
Ms. Norton. Thank you so much.
STATEMENT OF SENATOR FEINSTEIN
Senator Feinstein. Now, I would like, as the Senator from Cali-
fornia, to make a few introductory remarks. I am very pleased to
also join with Ms. Norton in introducing Michael Bromwich, a na-
tive of California. He has been nominated by the President to serve
as inspector general at the Department of Justice.
The inspector general, who supervises a nationwide field struc-
ture of more than 400 employees, is responsible for investigating
allegations of Department of Justice employee misconduct and for
preventing waste, fraud, and abuse in the Department's component
operations and contracts through inspections and audits.
I won't repeat what Ms. Norton has said, but Mr. Bromwich was
bom in Los Angeles in 1953. He attended University Elementary
School in Westwood and James Madison Junior High School in
North Hollywood. He graduated from Ulysses S. Grant High School
in North Hollywood and, as a high school student, took courses at
UCLA. Then he went to a minor college, known as Harvard, some-
where on the east coast. He then returned to California to work
each summer, and as a Harvard law student he worked two sum-
mers at the Los Angeles firm of Irell and Manella.
His mother and father, Leo and Rose Bromwich, each emigrated
to the United States as a teenager. His father earned a doctorate
degree in California. This is your father, I believe.
Mr. Bromwich. This is actually both of them. Senator,
Senator Feinstein. Both of them earned doctorate degrees?
Mr. Bromwich. Yes.
Senator Feinstein. Both earned doctorate degrees in California
and taught for many years in the California State university sys-
tem. They have resided for more than 30 years in Van Nuys, CA.
380
As Ms. Norton pointed out, Mr. Bromwich is an attorney with
considerable experience in Federal law enforcement. He is well
qualified to serve as the inspector general at Justice. She men-
tioned his undergraduate work at Harvard, his master's degree in
public policy from the Harvard John F. Kennedy School of Govern-
ment, and a law degree from Harvard.
After 3 years in private practice, he became a Federal prosecutor
in the Southern District of New York. He served there from 1983
to 1986. He became chief deputy and then chief of the narcotics
unit. You heard about his prosecution as a member of Lawrence
Walsh's staff in the Iran-Contra investigation. Since 1989, he has
been a partner in the Washington, DC, law firm of Mayer, Brown
and Piatt, where he has specialized in white collar criminal defense
work.
Mr. Bromwich was nominated to serve as IG. The committee, I
must say, has received numerous letters from experienced law en-
forcement officials, and I think these letters attest to his intel-
ligence, his professionalism, his honesty, and his nonpartisan ap-
proach to Federal law enforcement.
I am very pleased to welcome you, Mr. Bromwich, and would ask
that you perhaps introduce your family directly to the committee.
Mr. Bromwich. Thank you very much. Madam Chairperson. As
Ms. Norton indicated, with me today is my wife, Felice Friedman,
who is a lawyer with the Office of International Affairs of the Secu-
rities and Exchange Commission. In the blue jacket is my son,
Daniel, who is 7 years old and will be 8 in July.
Senator Feinstein. Hi, Daniel.
Mr. Bromwich. The fellow in the green shirt is my son, Jonah,
who will be 5 next month.
Senator FEINSTEIN. Hi, Jonah.
Mr. Bromwich. And he may tell you May 10th is his birthday.
Senator Feinstein. Happy birthday.
Mr. Bromwich. In the interests of minimizing disruption to the
hearing, we have left their 1-year-old sister, Kira, at home, but she
will be fully briefed. [Laughter.]
Senator Feinstein. Thank you. We will now begin. Would you
please stand and raise your right hand? Do you swear that the tes-
timony you will give in this proceeding will be the truth, the whole
truth and nothing but the truth, so help you God?
Mr. Bromwich. I do.
Senator Feinstein. Thank you. Would you like to make an open-
ing statement to the committee?
TESTIMONY OF MICHAEL R. BROMWICH, TO BE INSPECTOR
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Bromwich. Just very briefly. Madam Chairperson, I want to
express my appreciation to the Chair for holding this hearing
today. I want to note that I am deeply honored to have been nomi-
nated to this position by President Clinton. I look forward to work-
ing with the Congress and with the leadership of the Department
of Justice in being the absolute best inspector general that I can
be.
381
QUESTIONING BY SENATOR FEINSTEIN
Senator FEINSTEIN. Mr. Bromwich, your questionnaire indicates
that while you served in the office of U.S. attorney for the Southern
District of New York, you were deputy chief, as I stated, and then
chief of the narcotics unit. It also states that you served as associ-
ate counsel and special counsel for the Office of Independent Coun-
sel on the Iran-Contra investigation.
How do you believe that these investigations and your manage-
ment background prepare you for this office?
Mr. Bromwich. Madam Chairperson, I spent roughly 7 years in
Federal law enforcement, as you pointed out, first with the U.S. at-
torney's office in the Southern District of New York and then with
the independent counsel responsible for investigating Iran-Contra.
During those 7 years, I gathered substantial experience in running,
managing, supervising complex investigations, and in my capacity
as deputy chief and then briefly as chief of the narcotics unit, I had
responsibility for supervising from 20 to 22 attorneys who were
working on a large number of quite important narcotics investiga-
tions.
I had similar supervisory duties when I worked for Judge Walsh
on the Iran-Contra investigation. I, for a substantial period of time,
supervised a group of from 7 to 9 lawyers and 7 to 10 FBI and IRS
agents in doing a fairly substantial piece of that investigation that
included looking at whether employees of the Central Intelligence
Agency and Department of State committed any crimes. •
So, I believe that my experience in Federal law enforcement and
my experience in managing people, both lawyers and investigative
agents, qualifies me for the position of inspector general.
Senator FEINSTEIN. Thank you very much. As you, I am sure, are
aware, at one time Attorney General Reno was considering merging
the Office of IG and the Office of Professional Responsibility into
an expanded Office of Inspector General. Recently, she decided not
to merge the two offices. That means, I take it, that the Office of
Professional Responsibility will continue to investigate allegations
of wrongdoing against attorneys and law enforcement agents, and
that the Office of Inspector General will be responsible for the in-
vestigations and audits relating to the economy and efficiency of
the Justice Department's programs and operations, and for detect-
ing and preventing fraud and abuse, as I have stated.
Is this your understanding of how the functions will be divided?
Mr. Bromwich. Yes, that is generally correct. Madam Chair-
person. There will be responsibilities for the Office of Inspector
General in investigating certain sorts of employee misconduct, but
you are quite right that OPR will continue to have principal re-
sponsibility for investigations of misconduct that relate to allega-
tions lodged against attorneys and law enforcement agents.
Senator FEINSTEIN. Do you believe there will be overlap, and if
so, how would it be handled?
Mr. Bromwich. There will undoubtedly be overlap. There may be
cases in which lawyers and law enforcement agents are involved
that also involve other employees of the Department of Justice, and
I am quite hopeful that I will be able to work closely with the Of-
382
flee of Professional Responsibility to work cooperatively on matters
in which we both have an interest.
At my initiative, I met recently with Mr. Shaheen and his dep-
uty, Mr. Rogers, who are the top two officials in the Office of Pro-
fessional Responsibility. It is not a secret that there has been ten-
sion in the past between OPR £ind the IG, and I am hopeful that
we will be able to launch a new era and we will be able to mini-
mize turf battles and maximize cooperation.
Senator Feinstein. I think that is excellent. One of the things
that I have been struck with is what a large department Justice
is, with over 90,000 employees, and so I think your job is really a
very critical and important one in the Department.
Mr. Bromwich. I agree with you, Madam Chairperson.
Senator Feinstein. I understand that the Office of Inspector
General is divided into four sections — investigations, audits, inspec-
tions, and management — each headed by an assistant inspector
general. What will be your enforcement priorities or goals for each
of these sections?
Mr. Bromwich. Madam Chairperson, what the inspector general
has done up until now, and this is what I plan to continue, is to
try to take a look at what are the most significant high-impact,
high-risk areas of the Department's operations, and that is not just
restricted, as you well know, to the Department of Justice. It also
includes the U.S. attorneys offices. It includes INS, it includes the
Marshals Service, it includes DEA, it includes the FBI, and so
forth.
We are the principal sentinel to make sure that the Department
is run as efficiently and effectively as possible, and we will con-
tinue to target those areas that are high-risk areas where there are
substantial public funds expended and where there is a risk that
public moneys are wasted. That is my principal job.
Senator Feinstein. What would you say would be your number
one priority when you go into that office?
Mr. Bromwich. My number one priority is, in every way that I
possibly can, both through the investigations, audits, and inspec-
tions functions, to promote the integrity of departmental personnel
and departmental programs.
Senator Feinstein. Now, it is fair to say that the Department
that you are going to head is really the watch dog for Justice. I
know that you are an employee at Justice, an assistant to the At-
torney General. Do you feel you can go in and give her bad news,
if necessary?
Mr. Bromwich. Senator, it is my job to give her bad news, if it
is necessary, and I have had a number of conversations, including
recent conversations, with both the Attorney Greneral and the Dep-
uty Attorney Generzd, and they have expressed their intention to
give me whatever access that I need to them and to the Depart-
ment as a whole in order to carry out the functions that I have.
They do recognize that I have responsibilities that require me to
be independent, and I have no indication that they expect me to
bow in that independence and to do things that will attempt to
curry favor with them. They understand what the function and the
role of the inspector general must be.
383
Senator Feinstein. If you could have your druthers in terms of
Justice within the area of this responsibility, 5 years down the line
how would you like to be looked at as an inspector general?
Mr. Bromwich. I would like in the future to be looked at as
somebody who was a leader in the inspector general community
throughout the executive branch of the Government, and someone
who has left a record of doing ever5rthing within one person's and
one organization's power to make the Department of Justice the
most efficient, the most effective department in the Federal Gov-
ernment, and to have increased integrity in the Department in a
way that everyone will acknowledge.
Senator FEINSTEIN. I will just once again put a priority of mine
out on the table for you. I have told virtually everybody as a mem-
ber of this committee when I have been present at one of these
hearings that, as a Californian, a real department within Justice
that I would like to see elevated in priority is INS, and have sub-
mitted some legislation that could be helpful in doing that by pro-
viding the funding.
I would hope that as you look at waste, fraud, abuse and other
things that you would recognize that this today is a very important
department which has functioned as more or less a stepchild or an
orphan within the Department for a long time, and the time has
really come to see that it has the wherewithal to do the job that
it should be doing.
Mr. Bromwich, I completely agree with you. Senator. As you
probably know, a tremendous amount of the work that is currently
done by the inspector general focuses on INS in audits, in inspec-
tions, in investigations, and I think that is critical to continue that
effort and, if possible, to enhance it because there is no doubt that
INS is an absolutely critical part of the Department of Justice. I
recognize that.
Senator Feinstein. Since no other Senators have come — I mean,
this is just a wonderful way to have one of these hearings, I must
say.
Mr. Bromwich. It is fme for me so far. Senator.
Senator Feinstein. Do you have any closing comments?
Mr. Bromwich. I really don't, Senator. It has been a longer road
than I expected from the time I was offered the job until the time
I appeared before this committee, and I am just very much looking
forward to moving on, if and when I am confirmed, and assuming
the responsibilities of the Inspector General of the Department of
Justice.
Senator Feinstein. Well, thank you very much. I look forward to
supporting your nomination and being able to work with you as a
Senator. I thank you very much.
Mr. Bromwich. Thank you very much. Senator Feinstein.
Senator Feinstein. This hearing is adjourned.
[Whereupon, at 11:23 a.m., the committee was adjourned.]
[Submissions for the record follow:]
384
SUBMISSIONS FOR THE RECORD
X. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (including any former names used)
Michael Ray Bromwich
2. Address: List current place of residence and office
addresses)
Residence:
3806 Military Road, N.W., Washington D.C. 20015
Office Address:
United States Department of Justice
10th and Constitution Avenue, N.W.
Rood 4121
Washington D.C. 20530
3. Date and place of birth.
December 19, 1953; Los Angeles, California.
Marital Status (include maiden name of wife or husband's
name). List spouse's occupation, employer's name, and
business address (es) .
Felice B. Friedman
Lawyer
Securities and Exchange Commission
Office of International Affairs
450 Fifth Street, N.W.
Washington D.C. 20549
5. Education : List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Harvard College, 1971-76, A.B., June 1976.
John F. Kennedy School of Government, 1977-1980,
M.P.P., 1980.
385
Harvard Law School, 1976-80, J.D., 1980.
List (by year) all business or professional
corporations, companies, firms, or other
enterprises, partnerships, institutions and
organizations, non-profit or otherwise, including firms,
with which you were connected as an officer, director,
partner, proprietor, or employee since graduation from
college.
A. Summer 1976:
Sherman Oaks Swim School
Sherman Oaks, California
Swim Instructor
B. Svimmer 1977:
Xrell i Manella
Los Angeles, California
Summer Law Associate
Summer 1978:
U.S. Department of Justice
Washington D.C. 20530
Special Assistant
Summer Law Clerk (6 weeks)
2. Irell t Manella
Los Angeles, California
Svimmer Law Associate (6 weeks)
D. School Year 1978-79:
John F. Kennedy School of Government
Harvard University
Cambridge, Massachusetts
Teaching Assistant
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386
E. Spring 1979:
Consultant (with Professors James Q. Wilson
and Mark H. Moore)
Federal Bureau of Investigation
Washington D.C.
Summer 1979:
Fried, Frank, Harris, Shriver i Kampelman
Washington D.C.
Summer Lav Associate
School Year 1979-80:
John F. Kennedy School of Government
Harvard University
Cambridge, Massachusetts
Teaching Assistant
H. June 1980 - May 1983:
Foley t Lardner
Washington D.C.
Associate
May 1983 - January 1987:
United states Attorney's Office for the
Southern District of New York
Mew York, New York
Assistant United States Attorney
January 1987 - October 1989:
November 1989 - January 1990 (part-time)
May 1991 - September 1991 (part-time) :
Office of the Independent Counsel:
Iran-contra
Washington D.C.
Associate Counsel (*87-'89)
Special Counsel (part-time assignments)
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387
October 1989 - November 30, 1993;
Mayer, Brown t Piatt
Washington D.C.
Partner
December 1, 1993-present:
Assistant to the Attorney General
United states Department of Justice
Washington D.C.
Military Service : Have you had any military service?
If so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards : List any scholarships, fellowships,
honorary degrees, and honorary society memberships that
you believe would be of interest to the Committee.
Summa Cum Laude from Harvard College; Phi Beta
Kappa .
9. Bar Associations : List all bar associations, legal or
judicial-related committees or conferences of which you
are or have been a member and give the titles and dates
of any offices which you have held in such groups.
Member of D.C. Bar.
B. Member of American Bar Association and
following sections and subcommittees:
1. Litigation Section
(Complex Crimes Committee)
2. Criminal Justice Section
(White Collar Crime Committee)
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388
C. New York Council of Defense Lawyers.
D. Criminal Justice Act Panels:
X. U.S. District Court, District of Columbia
2. 0.8. District Court, District of Karyland
10. Other Memberships : List all organizations to which you
belong that are active in lobbying before public
bodies. Please list all other organizations to which
you belong.
Lobbying Organizations ;
World Wildlife Fund
American Automobile Association
Friends of WETA (Public Television)
Other Organizations ;
Council for Excellence in Government
United states Holocaust Memorial Museum
Friends of the National Zoo
Temple Sinai
Murcta Home & School Association (DC Public
Schools PTA)
Harvard Law School Association
Northwest Branch Swim Club
11. Court Admission : List all courts in which you have
been admitted to practice, with dates of admission and
lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the same
information for administrative bodies which require
special permission to practice.
United states Supreme Court (1989)
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389
United states Court of Appeals for the 2nd Circuit
(1984)
United States Court of Appeals for the O.C.
Circuit (1989)
United States District Court for the District of
Columbia (1989)
United States District Court for the District of
Maryland (1991)
District of Columbia Court of Appeals (1980)
Superior Court of the District of Columbia (1980)
12. Published Writings: List the titles, publishers, and
dates of booJcs, articles, reports, or other published
material you have written or edited. Please supply one
copy of all published material not readily available to
the Committee. Also, please supply a copy of all
speeches by you on issues involving constitutional law
or legal policy. If there were press reports about the
speech, and they are readily available to you, please
supply them.
A. Boo)t Review, Law t Policy in International
Business . Vol. 14:1227 (1983)
B. Participant in panel discussion, subsequently
published as, "Symposium Issue on the Selection
and Function of the Modern Jury," The American
University Law Review . Vol. 40, No. 2, Winter
1991.
C. "Sentencing of Organizations," in Phylis
Skloot Bamberger, ed.. Practice Under the New
Federal Sentencing Guidelines . Prentice-Hall Law t
Business (1992 & 1993 Supp.)
(co-author) .
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390
D. Participant in symposiiun, subsequently
published as, "Iraqgate: The Making of an
Investigation," Harper's . January 1993.
E. "Today is the Day to Implement Compliance
Programs," New York Law Journal . July 26, 1993.
13. What is the present state of your health? List the
date of your last physical examination.
Excellent. February 1991.
14. Public Offices : State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such
positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for
public office.
A. Assistant United States Attorney, Southern
District of New York (1983-87)
1. Deputy Chief Narcotics Onit (September
1985-December 1986)
2. Chief, Narcotics Unit (December 1986-
January 1987)
B. Associate Counsel, Office of Independent
Counsel: Iran-Contra (1987-89)
C. Special Counsel, Office of Independent
Counsel: Iran-Contra (December 1989-January 1990;
May-September 1991) .
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1
391
15. Legal Career ;
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as a clerk to a judge, and
if so, the name of the judge, the court, and
the dates of the period you were a clerk;
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental with which
you have been connected, and the nature of
your connection with each;
b. 1. What has been the general character of your
law practice dividing it into periods
with dates if its character has changed
over the years?
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the frequency
of your appearances in court varied, describe
each such variance, giving dates.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
4 . State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating whether you
were sole counsel, chief counsel, or associate
counsel .
392
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
I did not clerk for a judge after I graduated from
Harvard Law School in 1980, nor have I ever never
practiced lav by myself. The chronology of my legal
career is as follows:
From June 1980 to 1983, I was an associate in the
D.C. office of Foley ( Lardner, a lav firm based in
Milwaukee, Wisconsin. While I worked at the firm, the
address of the D.C. office was 1775 Pennsylvania
Avenue, N.W., Washington, D.C, 20006.1/ During my
time at the firm, I worked on projects involving
litigation, regulatory enforcement, and administrative
lav, as veil as in various other areas of the firm's
practice. With the exception of one pro bono criminal
appeal, my practice consisted entirely of civil
matters. I did some legal work on behalf of a trade
association in the oil industry and for various
Milwaukee-based corporate clients of the firm. With
the exception of the criminal pro bono matter referred
to above, which I argued in the D.C. Court of Appeals,
I made no court appearances in either state or federal
court.
In May 1983, I was appointed an Assistant United
States Attorney for the Southern District of New York.
The address of that office is One Saint Andrews Plaza,
New York, New York, 10007. I was hired by John S.
Martin, Jr., now a federal judge in the Southern
District of New York, but served most of my tenure
under Rudolph W. Giuliani, now the Mayor of New York
City. My entire tenure was served in the Criminal
Division and more than 95% of the matters that I
handled while in the Office was criminal. While an
Assistant United States Attorney, I tried approximately
a dozen cases, ranging in length from three days to two
months. With one exception, these trials were all
before a jury. In all of these cases, I was lead
1/ The firm's D.C. Office has moved to 3000 K Street, suite
500, Washington D.C.
- 10 -
393
counsel for the government. 2/ In approximately half
of these cases, I was sole counsel for the government.
In January 1984, after 10 months in the General
Crimes Unit, I was transferred to the Narcotics Unit.
In September 1985, Mr Giuliani appointed me Deputy
Chief of the Narcotics Unit. In December 1986, shortly
before I left the O.S. Attorney's Office, Mr. Giuliani
appointed me Chief of the Narcotics Unit, with
responsibility to direct and supervise the work of more
than 2 lawyers. During the period I held these
supervisory positions, I continued to handle my o%m
investigations and cases. As a result, I was in court
very frequently during my entire stay in the 0.8.
Attorney's Office. In addition to the trials that I
tried to verdict, I argued approximately a dozen cases
in the U.S. Court of Appeals for the 2nd Circuit.
In January 1987, I was appointed Associate Counsel
by Lawrence E. Walsh, who in December 1986 was
appointed Independent Counsel by a special division of
the D.C. Circuit to investigate the Iran-Contra affair.
I remained an Associate Counsel until October 1989.
The address of the Independent Counsel was 555 13th
Street, M.W., Suite 701W, Washington, D.C, 20004. I
was designated by Judge Walsh as one of three members
of the trial team in D.S. v. Oliver North , which was
tried from January to May 1989. Shortly after the
North case ended, I left the Office to return to
private practice. On two occasions after my departure,
I was appointed Special Counsel by Judge Walsh to
handle matters relating to work that had taken place
while I was still with the Office. Because of the
nature of the Office, all of my work was in federal
court and all related to criminal matters. I had no
involvement in any aspect of the Independent Counsel's
investigation that took place from 1988 through 1992.
Nor did I have any role in drafting, reviewing or
editing any aspect of the Independent Counsel's final
report.
From October 1989 through November 30, 1993, I was
a partner in the D.C. office of Mayer, Brown & Piatt.
II With one exception, I tried these cases from beginning to
snd. The exception involved my completion of a trial begun by an
Assistant D.S. Attorney who was arrested in mid-trial. In that
:ase, I completed presenting the government's case, cross-
ixamined the witnesses called during the defense case, and
lelivered the summation. This case is further described in my
inswer to question # 16, item # 5.
- 11 -
394
The address of the firm's D.C. Office is 2000
Pennsylvania Avenue, N.W., Suite 6500, Washington,
D.C, 20006. I specialized in white-collar criminal
defense and handled a wide variety of criminal matters
and quasi-criminal matters (administrative
investigations that are subject to referral to the
Justice Department for criminal prosecution) , as well
as a small number of civil litigation matters. For the
most part, I represented individuals in grand jury
investigations and in connection with administrative
investigations and proceedings. In addition, I
developed an expertise in counseling companies on
formulating and implementing internal compliance
programs that satisfy the requirements established by
the United States Sentencing Commission in the
organizational sentencing guidelines, which became
effective in November 1991. I supervised internal and
private investigations on behalf of various individual
and corporate clients. I would estimate that my
practice was approximately 80% criminal or quasi-
criminal and 2 0% civil.
During my four years with the firm, I tried one
local and one federal criminal case to a jury. I also
tried one non-jury case. I have served on the Criminal
Justice Act panels of the U.S. District Courts for the
District of Columbia and Maryland. I handled numerous
criminal matters — plus one administrative and one
civil matter — on a pro bono basis and have
established and headed a criminal pro bono progrzun at
my firm in which law firm attorneys represent indigent
defendants in D.C. Superior Court. More than 75% of my
practice was in federal court, with the remainder in
various state and local courts. Although the frequency
of my court appearances while a partner at Mayer, Brown
was far less than when I was a prosecutor, I
nevertheless had a substantial number of court
appearances. In addition to the three cases I have
tried, I have also conducted evidentiary hearings and
argued various motions.
16. Litigation ; Describe the ten most significant
litigated matters which you personally handled. Give
the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule
summary of the substance of each case. Identify the
party or parties whom you represented; describe in
detail the nature of your participation in the
litigation and the final disposition of the case. Also
state as to each case:
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395
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for each
of the other parties.
1. Dnited States v. Anthony Bari. et al. , June-
December 1983, Case No., 83 Cr. 462 (DNE) , in the
Dnited States District Court for the Southern District
of Hew York, before the Honorable David N. Edelstein,
United States District Judge.
The decision of the Second Circuit affirming the
convictions of the defendants is reported at 750 F. 2d
1169 (2d Cir. 1984) .
I directed an investigation conducted by the
U.S. Marshals Service in conjunction with the
Bureau of Prisons into an attempted escape from
the Metropolitan Correctional Center in Manhattan.
The attempt was launched from a 9th floor
dormitory that housed approximately fifteen
inmates. Because no inmate succeeded in getting
out of the dormitory and no prison official saw
the activities of the inmates who were trying to
escape, we had to base our case largely on the
testimony of three inmate-witnesses who resided in
the dormitory at the time of the attempted escape.
Eventually, six inmates were indicted.
After a three-week trial, in which I served
as lead trial counsel, the jury convicted five of
the six inmates. The convicted inmates were
sentenced to substantial terms of imprisonment
that were set to run consecutively to the
substantial sentences they were serving when they
attempted to escape.
Opposing Counsel: Richard F. Ziegler, Esq. (Anthony
Bari), Cleary, Gottlieb, Steen t Hamilton, One Liberty
Plaza, New York, New York, 10006, (212) 225-2000; Frank
Wohl, Esq. (Tyrone Faines) , Lankier, Siffert i Wohl,
500 Fifth Avenue, 33rd Floor, New York, New York,
10110, (212) 921-8399; and Anthony J. Ferrara, Esq.
(Marc Manns), Polstein & Ferrara, Two Park Avenue, New
York, New York, 10016, (212) 725-1166.
- 13 -
396
2. Dnited States v. Richard Calvin Brovn. Rudolph
Cook, et al. . Case No. 88 84 Cr. 767 (RLC) , November
1983-April 1984, D.S. District Court for the Southern
District of New York, before the Honorable Robert L.
Carter, 0.8. District Judge.
I investigated and prosecuted a case
involving a series of armed bank robberies in
Manhattan and the Bronx, one of which included the
perpetrators taking a bank customer hostage during
the robbery. Working with the New York Joint Bank
Robbery Task Force — an entity made up of FBI
agents and New York City police detectives — we
determined that the robberies had been committed
by the members of loosely-knit organization based
in the Bronx, many of whose members had recently
been released from prison after serving federal
prison sentences for prior bank robberies.
Members of the Task Force were able to obtain
confessions from several of the persons involved
in the robberies. We obtained guilty pleas from
four of the defendants, negotiated cooperation
agreements with their lawyers, and relied on their
testimony as well as other proof to prosecute the
two remaining defendants. After a week-long
trial, the jury convicted both defendants on all
of the counts in which they were charged. The
defendants both received lengthy prison sentences.
Opposing Counsel: Thomas Liotti, Esq. (Richard Calvin
Brown) , Liotti and Skelos, 1001 Franklin Avenue, Suite
300, Garden City, New York, (516) 739-3700; Susan
Kellman, Esq. (Rudolph Cook) , 20 Vesey Street, New
York, New York, (212) 732-7200.
3. Dnited States v. Alberto Pacheco-Garcia . October
1983-May 1984, Case No. SS 84 Cr. 64 (LPG), in the
Dnited States District Court for the Southern District
of New York, before the Honorable Lee P, Gagliardi,
Dnited States District Judge.
I supervised the investigation and
prosecution in a case involving a ring of
defendants in the Bronx and Manhattan who
defrauded individuals and banks out of substantial
sums of money. The defendants' fradulent scheme
involved stealing large numbers of federal
government checks from the mails, forging the
- 14 -
397
signatures of the rightful recipients, opening
bank accounts under assumed names, depositing the
stolen checks in the bank accounts, and writing
checks on those bank accounts before the federal
government could determine that the checks were
stolen.
I coordinated the investigation conducted
jointly by the Secret Service and the U.S. Postal
Inspectors. By the conclusion of the
investigation, approximately a dozen defendants
pled guilty. The only defendant who went to trial
was Alberto Pacheco-Garcia, who was convicted of
conspiracy to defraud the United States and theft
of government property. I was sole government
counsel at trial.
Opposing Counsel: Harry C. Batchelder, Esq. (Pacheco-
Garcia), 123 William Street, New York, New York, 10038,
(212) 233-1884; Roland Thau, Esq. (E. Dulac) , Federal
Defender Services Unit of the Legal Aid Society, 52
Duane Street, New York, New York, 10007, (212) 285-
2830.
4. United States v. Harold Barr. et al. . January 1984-
June 1985, Case No. 84 Cr. 82 (MEL), in the United
States District Court for the Southern District of New
York, before the Honorable Morris E. Lasker, United
States District Judge.
The Second Circuit's decision affirming the
convictions of the defendants convicted at trial, while
remanding Barr's case for further proceedings before
the District Court, is reported as United States v.
Cohen , at 796 F. 2d 20 (1986). The District Court's
opinion on certain pre-trial motions is reported at 605
F. Supp. 114 (6.D.N.Y. 1985). The District Court's
opinion, following evidentiary hearings held pursuant
to the Second Circuit's remand, is reported at 1989
U.S. District LEXIS 4294 (1989).
From January 1984, when agents of the New
York Drug Enforcement Task Force arrested three
defendants following a large-scale cocaine
transaction, until March 1985, when a two-month
long trial ended with the conviction of the
principal defendants, I directed and supervised an
investigation of large-scale narcotics trafficking
involving cocaine, massive amounts of marihuana,
and various psychedelic drugs. We enlisted the
- 15 -
398
cooperation and assistance of federal, state, and
local police officials throughout the country and
from the Royal Canadian Mounted Police.
The lead defendant, Harold Barr, purchased
multi-kilogram quantities of cocaine from
Colombian nationals based in Florida and
distributed the cocaine and the other drugs to a
network of drug distributors in New York City.
The members of Barr's distribution network in turn
sold the drugs to customers from around the
country — including Massachusetts, North
Carolina, Michigan, and California — and from
Canada.
During the course of the investigation, we
secured the cooperation of numerous co-
conspirators, including two of Barr's top
lieutenants, one of whom was his first cousin. In
all, approximately twenty defendants either pled
guilty or were convicted at trial. The lead
defendant, Harold Barr, was convicted of
conducting a continuing criminal enterprise and
sentenced to a 2 0-year term of imprisonment. 3/
Opposing Counsel: Michael Kennedy, Esq. (Harold
Barr), 425 Park Avenue, New York, New York, (212) 935-
4500; Michael Washor, Esq. (Eliot Cohen), 275 Madison
Ave., New York, New York, (212) 980-6110; Robert
Katzberg, Esq. (Jason Steinberg), Kaplan & Katzberg,
767 Third Avenue, 26th Floor, New York, New York, (212)
750-3100; Barry Fallick, Esq. (Gary Nudelman) , Rochman,
Platzer, Fallick, Rosmarin & sternheim, 666 Third
Avenue, New York, New York, 10017, (212) 697-4090; and
Myron Beldock, Esq. (Oona Lind) , Beldock, Levine t
Hoffman, 99 Park Avenue, New York, New York, 10016,
(212) 490-0400.
5. Dnited States v. Gordon Lawson and Milan Lama. May-
June 1985, Case No. 85 Cr. 403 (EW) , in the Onited
States District Court for the Southern District of New
York, before the late Honorable Edward Weinfeld, Dnited
States District Judge; and Dnited states v. Louis . July
1985-March 1986, Crim. No. 85 Cr. 708 (KTD) , in the
Dnited States District Court for the Southern District
of New York, before the Honorable Kevin Thomas Duffy.
3/ Following my departure from the D.6. Attorney's office,
Barr's sentence was reduced by the District Court.
- 16 -
399
The Second Circuit summarily affirmed the
convictions of the two defendants in Lawson in an
unpublished order. The Second Circuit's affirmance of
the Louis conviction is reported at 814 F.2d 852
(1986) .
These two trials involved the shipment of
heroin from Hong Kong to New York City through
Seattle, Washington, in March 1985. The Lawson
case was originally handled by another Assistant
United States Attorney, who was arrested in mid-
trial for having stolen money and drugs —
including the heroin exhibit relating to this case
— from a safe in the O.S. Attorney's Office. The
United States Attorney, Rudolph w. Giuliani, asked
me to complete the trial on behalf of the
government and Judge Weinfeld granted me a
postponement of the trial over a long weekend to
become familiar with the case and review the
transcript of proceedings that had already taken
place. After the weekend adjournment, I presented
the balance of the government's case and cross-
examined one of the defendants. Both defendants
were convicted and sentenced to terms of
imprisonment. The Second Circuit summarily
affirmed their convictions.
Following the completion of the Lawson trial,
the investigation focused on the source of the
heroin in Hong Kong. DEA agents based in Hong
Kong, working together with Hong Kong customs and
police officials, located and arrested George
Kathovalappil Louis. Louis waived extradition and
was transported to the O.S. in September 1985. I
was sole trial counsel in Louis's trial. Louis
was convicted by a jury and sentenced to a
siibstantial prison term. The Second Circuit
affirmed his conviction but remanded to the
District Court for resentencing by another judge
based on its determination that the District Court
had sua sponte based its sentence on improper
considerations .
Opposing Counsel: John P. Curley, Esq. (Gordon
Lawson) , Federal Defender Services Onit of The Legal
Aid Society, 52 Duane Street, New York, New York,
10007, (212) 285-2830; Louis R. Aidala, Esq. (Milan
Lzuna), 1133 Avenue of the Americas, New York, New York,
(212) 302-4466; and David Eames, Esq. (George Louis),
450 Park Avenue, New York, New York, (212) 223-3000.
- 17 -
400
6. Dnited States v. Delvecchio . September 1985-June
1986, Case Mo. 86 Cr. 305 (ONE), United States District
Court for the Southern District of New York, before the
Honorable David N. Edelstein, United States District
Judge .
The decision of the U.S. Court of Appeals for the
Second Circuit is reported at 816 F. 2d 859 (2d Cir.
1986) .
I was sole trial counsel for the government
in a case involving a conspiracy by the two
defendants and others to sell approximately
twenty-five kilograms of high-grade heroin for
approximately $ 2.5 million dollars. Although two
other participants in the operation had been
arrested in November 1982, the identity of one of
the two defendants whom I prosecuted was not known
until the spring of 1986 and the case against the
other was at the time considered weak. In
addition, one of the key witnesses in the case had
been murdered in a gangland-style execution.
We gathered substantial additional evidence
to strengthen the case against the two defendants.
Following their arrest, the two defendants were
convicted of conspiracy to distribute heroin and
sentenced to substantial terms of
imprisonment. 4/
Opposing Counsel: David Levitt, Esq. (Richard
Delvecchio) and the late Jack Lipson, Esq., Federal
Defender Services Unit of the Legal Aid Society, 52
Duane Street, New York, New York, 10007, (212) 285-
2830; Daniel Felber, Esq. (Angelo Amen), 285 Nest
Broadway, New York, New York, (212) 422-4600.
7. United States v. Amen, et al. . February-December
1986, Case No. SSS 86 Cr. 60 (RLC) , United States
District Court for the Southern District of New York,
before the Honorable Robert L. Carter, United States
District Judge.
^1 The two defendants were also convicted by the jury of
attempting to distribute five kilograms of heroin. Their
conviction on the attempt charge was reversed by the Second
Circuit.
- 18 -
401
The decision of the 0.8. Court of Appeals for the
Second Circuit is reported at 831 F. 2d 373 (2d Cir.
1987), cert, denied (as Abbamonte v. U.S .), 485 U.S.
1021 (1988). The opinion by the District court
disposing of the defendants' pre-trial motions is
reported at 649 F. Supp. 974 (S.D.N.Y. 1986) .5/
I directed the investigation and was lead
trial counsel in a case involving high-level
heroin trafficking in New York and Washington,
D.C. Relying on court-ordered wiretaps, telephone
calls taped at FCI Lewisburg, and multiple
undercover purchases of high-grade heroin, we were
able to demonstrate that two federal prison
inmates arranged substantial heroin transactions
through their confederates outside the prison by
means of coded telephone calls and in-person
visits in the prison's visiting room. In the
final days of the investigation, we executed a
search warrant at the residence of one of the
defendants located on Long Island, New Yor)c, and
seized five )cilograms of high-grade heroin, eight
kilogrzuus of high-grade cocaine, and $ 5.6 million
in cash, which at the time was the largest cash
seizure from an individual in DEA history.
The principal defendants, many of whom had
substantial organized crime connections, either
pled guilty prior to trial, or — in the case of
the three lead defendants — were convicted after
a month-long trial. The lead defendant, Oreste
Abb2unonte, Jr., one of the most notorious drug
trafficlcers in New Yor)c City history — and whose
exploits as a teenager were chronicled in David
Dur)c's The Pleasant Avenue Connection — was
convicted of conducting a continuing criminal
narcotics enterprise and was sentenced to life in
prison without parole at FCI Marion where he has
limited access to telephones. Most of the
remaining convicted defendants, including Michael
Paradise, a close associate of Gambino family boss
John Gotti, received prison terms ranging from 20-
40 years.
Opposing Counsel: Gerald L. Shargel, Esq. (Philip
Vasta), 150 E. 58th Street, New York, New York, (212)
486-1717; Howard L. Jacobs, Esq. (Michael Paradise),
/ The second Circuit's decision on the pre-trial detention of
ne of the defendants who subsequently pled guilty is reported as
nited States v. Romano . 799 F. 2d 17 (2d Cir. 1986) .
19 -
402
401 Broadway, New York, New York, (212) 431-3710;
Martin G. Weinberg (Oreste Abbamonte, Jr.)> Oteri,
Weinberg t Lawson, the Statler Building, 2 Park Plaza,
Suite 905, Boston, Massachusetts, 02116 (617) 227-3700.
8. Dnited states v. Arnold Souitieri . Grim. No. SSS 86
Cr. 60 (RLC) , September 1985-December 1986, U.S.
District Court for the Southern District of New York,
before the Honorable Robert L. Carter, Dnited States
Distz'ict Judge.
Squitieri was a defendant in the case
described in #7 above. Although he was originally
one of the principal targets of the investigation,
and although wiretaps were placed on his residence
phones for several months, he played a limited
role in the events that formed the core of that
case. Squitieri was acquitted by the jury.
Despite Squitieri *s substantial wealth, he
claimed shortly after bis arrest that he could not
afford to retain counsel. The Court appointed
Squitieri a lawyer at government expense. After
the trial was over, we sought to compel Squitieri
to repay the government the amounts it had
expended in providing him with trial counsel. We
did so based on solid information that Squitieri
was a member of the Gambino crime feunily, was a
particularly close associate of John Gotti, and
derived substantial profits from not only
narcotics trafficking but other organized criminal
activities as well. After I took Squitieri 's
deposition and and we made a detailed submission
to the court. Judge Carter ordered Squitieri to
reimburse the goveriunent for the payments it made
to Squiteri's court-appointed lawyer.^/
Opposing Counsel: Michael Hurwits, 299 Broadway, New
York, New York, (212) 619-4240; Robert Kiernan, Esq.,
Hoffman and Pollok, 260 Madison Avenue, New York, New
York, (212) 679-2900.
9. Dnited States v. John M. Poindexter. Oliver L.
North. Richard Secord and Albert Hakim . Cr. No. 88-080-
01 (HHG), -02 (GAG), -03, and -04 March 1988 through
6/ Approximately a year later, Squitieri was convicted of
narcotics trafficking in the District of New Jersey and was
sentenced to a lengthy term of imprisonment.
- 20 -
403
January 1990, December 1989-January 1990, D.s. District
Court for the District of Columbia, before the late
Honorable Gerhard A. Gesell ( North ) and the Honorable
Harold H. Greene ( Poindexter ) , 0.8. District Judges.
I was involved in various aspects of the
cases against Admiral Poindexter, Lt. Col. Horth,
and Messrs. Secord and Hakim. The four defendants
were indicted in March 1988. During the period
March- June 1988, I participated in various pre-
trial proceedings and argued some of the pre-trial
motions. In June 1988, Judge Gesell granted the
defendants' motions for severance and ordered four
separate trials, one for each of the defendants.
I was selected as a member of the three-
person trial team that represented the government
in the prosecution of Lt. Col. North. John W.
Keker, Esg., was chief trial counsel. The charges
against Lt. Col. North included, among others,
making false statements to Congress, obstructing
Congressional investigations, altering and
destroying government documents, and accepting an
unlawful gratuity. I examined some of the
government's key accomplice witnesses and cross-
examined a number of defense witnesses. Lt. Col.
North was convicted on three counts and acquitted
on the remaining counts by the jury. Lt. Col.
North's convictions were reversed by the D.C.
Circuit. Following a remand to the District
Court, the government dropped the charges against
him.
The decision of the D.C. Circuit Court of Appeals
is reported at 910 F. 2d 843 (D.C Cir. 1990), opinion
withdrawn and superseded in part on rehearing . 920 F.
2d (D.C. Cir. 1990), cert, denied . Ill S. Ct. (1991).
The decisions by Judge Gesell on various pre-trial
motions produced twenty-three reported opinions. As
published, they are reported in clusters: 698 F. Supp.
322 (D.D.C. 1988); 708 F. Supp. 364-40S (D.D.C. 1988-
89) (ten separate opinions); 713 F. Supp. 1436-1455
(D.D.C. 1989) (ten separate opinions); 716 F. Supp.
644-656 (D.D.C. 1989) (two separate opinions) .
Opposing Counsel: Brendan V. Sullivan, Jr., Esq., and
Barry Simon, Esq., Williams & Connolly, 725 Twelfth Street.,
N.W., Washington D.C, 20005, (202) 434-5000.
- 21
404
After the Worth case was over, and after I
had left the Office to enter private practice, I
represented the Independent Counsel in certain
pre-trial proceedings in the case against Admiral
Poindexter. The pre-trial proceedings related to:
1) whether principal trial counsel for the
government, Dan K. Webb and Howard M. Pearl, had
been exposed to the immunized testimony provided
to Congress by Admiral Poindexter in July 1987;
and 2) whether the witnesses the government
intended to call at Poindexter 's trial were so
tainted through such exposure that their testimony
should be suppressed at trial.
Judge Greene ruled that there was no basis
for disqualifying Messrs. Webb and Pearl from
conducting the trial for the government. Be also
ruled that all of the witnesses from whom he
heard testimony during the pre-trial hearing could
properly testify at trial, with the exception of
certain limits being imposed on the trial
testimony of Lt. Col. North. Admiral Poindexter' s
convictions on five counts by a jury were reversed
on appeal by the D.C. Circuit. I was not involved
either in the trial of Admiral Poindexter or in
the appeal.
The decision of the D.C. Circuit is reported at
951 F. 2d 369 (1991), cert, denied . 113 S. Ct. 656
(1992). The district court's opinion on the matters in
which I participated are reported at 727 F. Supp 1488
(D.D.C. 1989).
Opposing Counsel: Richard W. Beclcler, Esq.,
Fulbright & Jaworslei, 801 Pennsylvania Ave., N.W.,
Washington D.C. 20004, (202) 662-0200.
10. United States v. Mohammad Z. Jafar . Cr. No. 91-
123-A, April-June 1991, U.S. District Court for the
Eastern District of Virginia, before the Honorable
Claude Hilton, U.S. District Judge. 7/
I represented a 31-year-old Iraqi national
who was prosecuted by the government on two counts
alleging that he violated the embargo on trade
7/ Judge Hilton presided over the trial. The pre-trial motions
and other preliminary matters were handled by the then-chief
judge, Albert V. Bryan, Jr.
- 22 -
405
between the U.S. and Iraq following Iraq's
invasion of Kuwait on August 2, 1990. I began the
representation of Mr. Jafar within a week of his
indictment in April 1991. I was lead counsel for
all of the pre-trial proceedings and conducted all
aspects of the trial in court from opening
statement through summation. Judge Hilton
dismissed one of the charges for insufficient
evidence after the government had rested its case.
Mr. Jafar was acquitted by the jury on the
remaining count. Following the acqpiittal, at my
request, the government dismissed a charge against
Mr. Jafar *s father.
Opposing Counsel: Assistant U.S. Attorney Vincent
Gambale, U.S. Attorney's Office for the Eastern
District of Virginia, llOl King street. Suite 502,
Alexandria, Virginia 22314, (703) 706-3700.
17. Legal Activities : Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the
nature of your participation in this question, please
omit any information protected by the attorney-client
privilege (unless the privilege has been waited.)
Over the last decade, I have had a series of jobs
that required not only legal experience but also the
ability to work with and supervise groups of lawyers
and investigators. The cases described in my responses
to question #16 — particularly items #1-4 and #7-10 —
required me to devise investigative strategies in
complex criminal investigations; direct and coordinate
investigations involving law enforcement personnel from
various federal, state, and local agencies; worlc
closely with prosecutors in other districts; and
supervise the preparation of complex cases for trial.
For example, the cases described at #7 and #8 in
question # 16 above were the result of approximately a
year of thorough investigation in conjunction with
agents from the New York and Washington field offices
of the Drug Enforcement Administration (DEA) and
lawyers from the U.S. Attorney's Office for the
District of Columbia. The case involved 1) frequent
consultation among the various agencies involved in the
- 23 -
406
investigation; 2) the drafting and submission of
lengthy wiretap applications based on law enforcement
intelligence information and pviblicly available
materials; 3) the monitoring and analysis of wiretaps
placed on multiple phones used by people involved in
narcotics trafficking and other organized criminal
activity; 4) the acquisition and comprehensive review
of tape recordings made at FCI Lewisburg of phone calls
placed by inmates; 5) the coordination and supervision
of large-scale undercover purchases of narcotics;
6) the supervision of other lawyers and a tezm of
agents in the execution of multiple search warrants
made at the time the investigation was terminated; and
7) the supervision of a trial team of three prosecutors
and approximately a dozen OEA agents in preparing a
month-long case for trial.
In addition to these activities, I actively
supervised a group of 2 0-25 lawyers as Deputy Chief and
briefly as Chief of the Narcotics Unit in the Southern
District of New York. These supervisory
responsibilities involved frequent contacts with DEA
supervisors and agents, members of the New York Drug
Enforcement Task Force, members of the New York-New
Jersey Organized Crime Drug Enforcement Task Force,
lawyers in the Office of the New York Special Narcotics
Prosecutor, and day-to-day supervision and management
of the lawyers in the Narcotics Unit.
While working in the Office of the Independent
Counsel, I was responsible for coordinating the
logistics of the grand jury investigation and serving
as liaison to the 1987-88 grand jury and later to Judge
Gesell. Beginning in the fall of 1987, I was assigned
responsibility to head the investigative team examining
the activities of the Department of state, the CIA, and
the "private benefactors" assisting the Contras in
Nicaragua. These responsibilities involved the
supervision of 7-8 lawyers and approximately a dozen
FBI and IRS agents.
In private practice, I worked with court officials
to establish and supervise a program enabling lawyers
in my firm to take on criminal cases in D.C. Superior
Court for indigent defendants on a pro bono basis. In
addition, one of the substantial criminal matters on
which I worked required me to devise an investigative
strategy and coordinate an 18-month long investigation
designed to uncover evidence that would support a
motion for a new trial.
24
407
II. FINAMCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock
options, uncompleted contracts and other future benefits
which you expect to derive from previous business
relationships, professional services, firm memberships,
former employers, clients, or customers. Please
describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
On December 1, 1993, I left the law firm of Mayer,
Brown & Piatt to begin working at the Department of
Justice. I will receive all monies owed, including my
capital account, which will be paid to me in a lump
sum. The payments will be based on my portion of the
firm's income for services provided to clients from
January 1993 through November 30, 1993. I will receive
no income based on any of the firm's services rendered
to clients after November 30.
I will retain my investments in my independently
managed 401 (k) plan. Because I did not spend five
years with the firm, my investments in the firm's
mandatory savings plan have not vested and will be
returned to me when I resign from the firm, along with
the other monies described above. My investment share
in the plan is reflected in the interests reported on
pages 10 and 11 of the report submitted in response to
question #4 below.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conf licts-of-interest
during your initial service in the position to which you
have been nominated.
I will seek and follow the advice of the
appropriate ethics officials of the Department of
Justice before participating in any matter in which I
or any member of my family may have a personal or
financial interest.
I do not foresee any categories of litigation or
any of my family's financial arrangements that are
- 25 -
408
likely to present conflicts of interest. With respect
to specific conflicts that may arise in the course of
fulfilling my duties, I will consult with the ethics
advisors at the Department of Justice.
3. Do you have any plans, commitments, or agreements to
pursue outside employment, with or without compensation,
during your service in the position to which you have
been nominated? If so, explain.
Mo.
4. List sources and amounts of all income received during
the calendar year preceding your nomination and for the
current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents
honoraria, and other items exceeding $ 500 or more. (If
you prefer to do so, copies of the financial disclosure,
required by the Ethics in Government Act of 1978, may be
substituted here.)
Please see the attached copy of my Public
Financial Disclosure Report, 8F-278.
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
See net worth statement and related schedules
attached at the end of this questionnaire. The
materials were updated to include all financial
transactions and related matters that took place
up through and including January 1, 1994.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
In the fall of 1992 I attended several meetings of
a group of approximately a dozen lawyers supporting the
Clinton-Gore ticket to assist the campaign in
developing positions on law enforcement and criminal
justice matters, including community policing, boot
camps, and various other issues. I had no title and no
responsibilities other than attending periodic
meetings. I estimate that I spent approximately ten
hours on this activity.
- 26 -
409
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American
Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload to find some time to
participate in serving the disadvantaged." Describe
what you have done to fulfill these responsibilities,
listing specific instances and the amount of time
devoted to each.
During the approximately seven years that I have
practiced law in the private sector, I have devoted
substantial amounts of ny time to serving the
disadvantaged .
While I was at Foley t Lardner in the early
1980 's, I represented an indigent defendant on a pro
bono basis in the D.C. Court of Appeals. I spent
substantial time speaking by phone with my incarcerated
client, researching the various potential appellate
issues, drafting the opening and reply briefs,
consulting with partners in the firm who agreed to
supervise my work, and arguing the case in the D.C.
Court of Appeals. In addition to the work on this
case, I was called upon at various times to help out on
other pro bono projects in which the firm was involved.
After I returned to private practice in 1989, I
devoted a very substantial portion of my time to pro
bono matters. I was appointed by committees of judges
in the Onited States District Courts for the District
of Maryland and the District of Colximbia to panels of
lawyers deemed qualified to handle criminal cases
involving the representation of indigent defendants. I
took on matters on a pro bono basis in both courts. In
addition, federal judges in the District of Columbia
from time to time called on me to represent individual
defendants in special circumstances, and the Federal
Piiblic Defender's Office requested that I represent
witnesses in grand jury investigations. Although these
assignments were for the most part in criminal cases, I
accepted court appointments in civil cases as well. In
addition, I established the program — mentioned in my
response to question #17 above -- in D.C. Superior
Court that enabled lawyers in my firm to represent
indigent defendants in criminal cases on a pro bono
basis.
Altogether, my time records for the four years I
spent at Mayer, Brown ( Piatt reflect that I spent a
- 27 -
410
total of approximately 800 hours on pro bono matters.
This figure does not include the time spent to arrange
for various associates in my firm to undertake pro bono
projects and my active supervision of those projects.
I describe below specific pro bono matters that X
undertook on behalf of indigent clients that took
substantial amounts of my time.
A. In 1990, I was appointed by the U.S. District
Court in D.C. to represent an indigent defendant
charged with possessing with intent to distribute
a small quantity of crack cocaine. Ultimately, my
client entered a conditional guilty plea,
reserving the right to appeal the District Court's
ruling on a suppression issue. I handled all
court proceedings in the District Court and
supervised an associate's handling of the appeal
in the D.C. Circuit. The D.C. Circuit's decision
affirming the District Court's denial of the
suppression is reported as United States v. Ramos .
960 F. 2d 1065 (D.C. Cir. 1992). Personal time
spent: 165 hours.
B. From December 1990 through April 1992, on
appointment from the U.S. District Court in D.C,
I represented a Federal Protective Service police
officer who had been sued in a personal injury
action arising out of serious injuries suffered by
the plaintiff in a high-speed chase.
The government originally agreed to represent
the officer but subsequently took the position
that his involvement in the chase was not within
the scope of his employment. We persuaded the
Court to certify that, contrary to the
government's position, our client had at all times
acted within the scope of his employment.
Accordingly, the government was substituted as the
defendant and our client was dismissed from the
case. We began the representation on a pro bono
basis. The Court on more than one occasion
requested that we file a fee petition and
subsequently ruled that we were entitled to
certain fees and costs. The case, Mebane v.
Turner, is reported at 789 F. Supp. 410 (D.D.C.
1992). The issue of attorneys' fees and costs is
currently pending in the D.C. Circuit. Personal
time spent: 2 05 hours.
- 28 -
411
C. In 1993, in an executive branch agency other
than the Department of Justice, I represented a
criminal investigator charged with serious
violations of departmental rules and threatened
with the loss of her job. After supervising an
extensive investigation into the factual basis for
the threatened dismissal, ve reached a settlement
permitting my client to voluntarily resign from
the agency. Personal time spent: 108 hours.
Do you currently belong, or have you belonged, to any
organization which discriminates on the basis of race,
sex, or religion — through either formal membership
requirements or the practical implementation of
membership policies? If so, list, with dates of
membership. What have you done to try to change these
policies?
No.
- 29
412
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^
429
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including ban:
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members o
your household.
ASSETS
UABIUTIES
Ca<h on hind and In banks *1
fi7.170
-lA
—
Notat payabia to banks — aacurwj iQ/
Nota* payabia to banks— URsacurvd
Notat payabia to ratattva*
Nota* payabia to othan
Accounts and bills dua Cexcludine
items. o;i current billing cicT.e
Raal astata mortsaget payabia — add
aehadula (schedule H)
Chattel mortjagei and othar Hans
paytbia
Othar dabts — Itamlze:
on
._
U.S. Covammant iacafrtJa»— add ,
•chadula ''
10,187
50
..
00
~
Uatad aacuritiat — add tchadula *3
Unllrtad »acur1tia« — add ichadula
339,315
20
00
—
00
—
00
00
—
Accouna and notn racarmbla:
Oua from ralatiws and friandt
OC
00
—
Dua Irom oChara
Doubtful
00
00
—
JL
240,810
,1111
98
Raal aetata ownad — add achadula *i,
■(7? 7q-(
nn
00
Rail rtuta mortsigai racaivabla
00
—
Autot and othar panonal proparty *^
37,075
00
—
00
~
on
-^
Retirement Accounts *6
122,532
80
_.
Capital Account *7
53,50(
00
__
-
ToUl liabiUUas
Nat worth
240.810
783,982
98
87
85
1,024.793
85 —
— —
Toul aiMts
Total liablllUes and n«t «>orth
1,024,793
—
CONTINGENT UABILmCS
GENERAL INFORMATION
Ai tncorur, comakar or (uanntor
00
—
A/a any assati pladgaiQ (Add aehad-
ula.)
Art you dafendant In any tuKs or
iagal actions;
No
On laasai or eontncts
00
—
l.a(al Claims
w
—
No
^Tv^io', fer rtrtanl trsr—Tit T—
nn
Otnar tpacial dabt t
00
—
Hav* you avwr tskan baniuuptcyr
No
«
-
*1
See
Schedule
A
*2
See
Schedule
B
*3
See
Schedule
C
*4
See
Schedule
D
*5
See
Schedule
E
*6
See
Schedule
F
*7
See
Schedule
G
10/ See Schedule H, footnote 4.
430
^
OWKERSHIP
JT
DRB
JEB
KAB
FBF
DRB
JEB
KAB
NRB
FBF
FBF
SCHEDULE A
CASH ON HAND AND IN BANKS
ACCT./FDND
Kemper Money Market Fund
Kemper Money Market Fund
Kemper Money Market Fund
Kemper Money Market Fund
Paine Webber Money Fund
Paine Webber Money Fund
Paine Webber Money Fund
Paine Webber Money Fund
Riggs National Bank Checking Acct.
Riggs National Bank Checking Acct.
Riggs National Bank Savings Acct.
MARKET VALtJE
$
23,850.00
$
7,291.00
$
7,291.00
$
301.00
$
33,505.30
s
3,278.00
$
3,185.00
$
5,469.44
$
2,000.00
$
500.00
$
700.00
TOTAL:
$ 87,370.74
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich" and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
I
431
SCHEDOLE B
U.S. GOVERNMENT SECURITIES
WNERSHIP SECURITY MATURITY MARKET VALUE
BF 10,000 FFCB MTN 5/15/01 $ 10,187.50
Callable rate:
8.65%
TOTAL: $ 10,187.50
•?B = Michael R. Bromwich
3F = Felice B. Friedman (wife)
r = Jointly held by Michael R. Bromwich and Felice B. Friedman
RB = Held in Trust for Daniel R. Bromwich, Age 7
SB = Helc?, in Trust for Jonah E. Bromwich, Age 4
\B = Held in Trust for Kira Anne Bromwich, Age 10 months
432
SCHEDULE C
LISTED SECURITIES
OWNERSHIP
SECURITY
WO. /TYPE
MARKET VALUE
I. INDIVIDUAL EQUITIES
FBF
FBF
FBF
FBF
Avecmco Corp.
Amoco
Catellus Dev.
Corp.
500 Conumon
2 00 Common
Bellsouth Corp. 150 Common
2 00 Common
$ 9,437.50
$ 10,600.00
$ 8,700.00
S 1,550.00
FBF
Consol . Nat.
Gas Co.
200 Common
$ 9,400.00
DRB
Consol. Nat.
Gas Co.
100 Common
$ 4,700.00
JEB
Consol. Nat.
Gas Co.
100 Common
$ 4,700.00
FBF
FBF
Dow Chemical
Fed. Paper Bd.
2 00 Common
4 00 Conv. Pref,
2.875
$ 11,350.00
$ 19,800.00
FBF
General Motors 3 00 Common
S 16,462.50
<
433
SCHEDULE C (CONT'D.)
PAGE 2
OWNERSHIP
SECURITY
NO. /TYPE
MARKET VALUE
FBF
JEB
FBF
FBF
DRB
FBF
DRB
GTE Corp.
GTE Corp.
Nynex Corp.
Nynex Corp.
Pacif icorp.
RJR Nabisco
Hldgs. Corp.
200 Common
100 Common
NYS Elec.& Gas 78 Common
2 00 Common
2 00 Common
2 00 Common
200 Cum Pref.
$ 7,000.00
$ 3,500.00
$ 2,369.25
$ 8,025.00
$ 8,025,00
$ 3,850.00
$ 5,000.00
JEB
RJR Nabisco
Hldgs. Corp.
100 Cum. Pref.
$ 2,500.00
FBF
Santa Fe Pacific 300 Common
Corp.
$ 6,675.00
FBF
Santa Fe Energy 100 Common
Res. Inc.
925.00
FBF
JEB
Schlumberger
Ltd.
Schlumberger
Ltd.
2 00 Common
2 00 Common
$ 11,825.00
$ 11,825.00
434
SCHEDDLE C (CONT'D.)
PAGE 3
OWNERSHIP
SECURITY
NO. /TYPE
MARKET VALUE
FBF
Sierra Pacific
Resources
100 Common
S 2,050.00
JEB
Signet Banking
Corp.
100 Common
$ 3,475.00
FBF
FBF
FBF
Telef. de Mex.
Texaco Inc.
200 Common
100 Common
Time Warner Inc. 320 Common
$ 13,500.00
$ 6,475.00
$ 14,160.00
SUBTOTAL:
$ 207,879.25
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
J
t 435
SCHEDDLE C (CONT'D.) PAGE 4
II. MUNICIPAL BONDS k NOTES
OWNERSHIP SECroiTY MATDRITY
FBF
JEB
KAB
MARKET VALUE
FBF Arizona Cert. 3/1/03 $ 22,196.60
of Partic.
^^^ N.Y. State Hlth. 11/4/04 $ 5,741.00
Wash. D.C. G.O. 6/1/09 $ 10,336.50
DRB N.Y. St. Urb. 1/1/05 $ 15,366.00
Corp.
DRB Ford Capital 5/1/98 $ n, 362. 50
BV Notes
NY State Dorm. 5/15/05 $ 16,345.80
Univ. Ed.
Time Warner Inc. 4/1/17 $ 21,050.00
SOBTOTAL: § 102,398.40
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
DRB - it\T]l S^^^*'^ Michael R. Bromwich and Felice B. Friedman
DRB - Held in Trust for Daniel R. Bromwich, Age 7
JEB - Held in Trust for Jonah E. Bromwich, Age 4
KAB - Held in Trust for Kira Anne Bromwich, Age 10 months
436
SCHEDULE C (CONT'D.)
PAGE S
III. UNIT INVESTMENT TRUSTS
OWNERSHIP
SECURITY
UNITS
MARKET VALUE
FBF
Unit Tax Ex.
Sec. Tr.
10
$ 3,980.30
SUBTOTAL:
$ 3,980.30
MRB
FBF
JT
ORB
JEB
KAB
Michael R. Bromwich
Felice B. Friedman (wife) „ ,
Jointly held by Michael R. Bromwich and Felice B. Friedman
Held in Trust for Daniel R. Bromwich, Age 7
Held in Trust for Jonah E. Bromwich, Age 4 ,
Held in Trust for Kira Anne Bromwich, Age 10 months
437
SCHEDULE C (CONT'D.)
PAGE 6
IV. MOTDAL FUNDS
OWNERSHIP
FBF
FUND
Fidelity
SHARES
794.901
MARKET VAT.IIB
$ 9,880.62
MRB
20th Cent.
Ultra
69.814
$ 1,466.79
MRB
20th Cent.
Select
32.729
$ 1,286.58
MRB
2 0th Cent.
Vista
147.863
$ 1,475.67
MRB
Value Line
Fund
$ 1,474.91
ORB
20th Cent,
Growth
108.573
$ 2,426.61
DRB
20th Cent.
Select
87.317
$ 3,432.43
DRB
20th Cent.
Vista
362.088
SUBTOTAL :
LISTED SECURITIES TOTAL!
$ 3,613.64
$ 25,057.25
$ 339.315.20
MRB
FBF
JT
DRB
JEB
KAB
Michael R. Bromwich
Felice B. Friedman (wife)
Jointly held by Michael R. Bromwich and Felice B. Friedman
Held in Trust for Daniel R. Bromwich, Age 7
Held in Trust for Jonah E. Bromwich, Age 4
Held in Trust for Kira Anne Bromwich, Age 10 months
438
SCHEDULE D
REAL ESTATE OWNED
OWMERSHIP LOCATION ASSESSED VALUE
JT 3806 Military Road, N.W. S 372,793.00
Washington D.C,
(Personal Residence)
TOTAL: S 372,793.00
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
439
SCHEDULE E
AUTOS AND OTHER PERSONAL PROPERTY
OWNERSHIP PERSONAL PROPERTY BOOK OR MARKET VALUE
JT 1981 Honda Civic GL $ 1,100.00
JT 1990 Honda Accord S 10,975.00
JT Furniture, Appliances, Books, Other $ 11,000.00
Household Contents
FBF Fine Arts, Silverware, China, $ 14,000.00
Crystal, Jewelry, etc.
SUBTOTAL: $ 37,075.00
MRS = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
440
SCHEDULE F
OWMERSHIP
RETIREMENT ACCOUNTS
RETIREMENT INSTRUMENT/VEHICLE
MARKET VALUE
FBF
FBF
Paine Webber Retirement Money Fund
Paine Webber IRA:
Nynex Corp.: 100 shares
$ 174.79
$ 4,012.50
FBF
Paine Webber IRA:
Upjohn Co.: 100 shares
$ 2,900.00
FBF
Paine Webber IRA:
Global Health Sciences: 100 shares
$ 1,087.50
FBF
Paine Webber IRA:
Signet Bank: 100 shares
$ 3,475.00
FBF
FBF
FBF
FBF
MRB
401(k): U.S. Trust Short-Term Fund
401 (k): Fidelity Puritan Fund
401(k): Fidelity Magellan Fund
401 (k): Fidelity Overseas Fund
20th Century IRA
U.S. Govt. Securities
$ 8,045.08
$ 7,487.90
$ 9,644.22
$ 4,204.36
$ 9,872.38
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
441
SCHEDDLE 7 (CONT'D.) PAGE 2
OWWER8HIP RETIREMEMT IH8TROMEMT/VEHICLE MARKET VALDE
MRB Mayer, Brown & PlattH/ $ 42,484.9512/
Savings Plan
MRB 401(k): Kidder, Peabody Funds $ 31,163.73
SUBTOTAL: $ 124,552.41
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
11/ This savings plan is mandatory for all Mayer, Brown &
Piatt partners and is separate from the discretionary 4 01 (k) plan
listed below. For both the savings plan and the 401 (k) plan,
each partner has the choice of four investment plans, all of
which are managed by Kidder, Peabody: 1) a money market fund; 2)
an aggressive equity fund; 3) a conservative equity fund; and 4)
a balanced fund. For approximately the last six months, I have
divided both the mandatory savings and 401 (k) portions of my
retirement plan as follows: 10% money market fund; 30% aggressive
equity fund; 30% conservative equity fund; and 30% balanced fund.
To my knowledge, I have never received a Kidder, Peabody
statement for either account that itemizes the individual
securities holdings of any of the four funds.
12/ Because I was a member of the Mayer, Brown partnership
on November 30, 1993, I was subject to the mandatory features of
the firm's savings plan as well as eligible to make a voluntary
contribution to my 401 (k) account. In order for the amounts
contributed to the mandatory portion of the firm's savings plan
to vest, I would need to have been with the firm as a partner for
five years. Since I will resign from the firm after slightly
more than four years as a partner, I will receive back as a
"forfeiture" the amounts I contributed to the savings plan.
These amounts will be taxable to me as ordinary income in 1994.
442
SCHEDOLE 6
CAPITAL BALANCE — MAYER, BRORM t PLATT
Permanent Capital Balance with firm $ 100,944.00
(January 1, 1993 requirement)
Loan balance due to The Northern Trust Company 13./ ($ 47,444.00)
MET CAPITAL BALAMCE: $ 53,500.00
11/ Approximately two years ago, Mayer, Brown & Piatt
required all partners who had not yet fulfilled their capital
contribution requirements to do so within a few months. As an
accommodation, the firm established a loan program with The
Northern Trust Company to extend loans to all partners who
required financial assistance to satisfy the balance of their
capital contributions. Mayer, Brown & Piatt has reimbursed its
partners for the interest incurred in obtaining such loans.
I
443
SCHEDDLE H
REAL ESTATE MORTGAGES PAYABLE
OBMERSHIP LOCATION OF PROPERTY PRINCIPAL BALAKCE
JT 3806 Military Road, N.W. $ 240,810.98
Washington D.C. (residence) (as of 1/1/94)
Mortgage holder:
Citicorp Mortgage, Inc.
P.O. Box 790001
St. Louis, Missouri 63179
Loan i 0002347705
SUBTOTAL : $ 240,810.98
444
LETTERS IN SUPPORT OF MICHAEL R. BROMWICH
CONTENTS
1. LAW ENFORCEMENT: UNITED STATES ATTORNEY'S OFFICE FOR THE
SOUTHERN DISTRICT OF NEW YORK
A. RUDOLPH W. GIULIANI
• United States Attorney for the
Southern District of New York (1983-89)
• Associate Attorney General
United States Department of Justice (1981-83)
• Mayor
New York City, New York
STUART E. ABRAMS
• Chief, Major Crimes Unit (1986-88)
Chief, Appeals Unit (1985-86)
Assistant United States Attorney for the
Southern District of New York (1982-89)
• Law Offices of Stuart E. Abrams
New York, New York
C. BRUCE A. BAIRD
• Chief, Securities and Commodities Fraud Unit
(1987-89)
Deputy Chief, Criminal Division (1986-87)
Assistant United States Attorney for the
Southern District of New York (1980-89)
• Special Assistant to Deputy Attorney General
Harold Tyler (1975-76)
• Partner
Covington & Burling
Washington, D.C.
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
445
CHARLES M. CARBERRY
• Chief, Securities and Commodities
Fraud Onit (1986-87)
Deputy Chief, Criminal Division (1985-86)
Assistant United States Attorney for the
Southern District of New York (1979-87)
• Partner
Jones, Day, Reavis t Pogue
Kew York, New York
JOHN K. CARROLL
• Chief, Securities and Commodities Fraud
Task Force (1991-92)
Co-lead Counsel: U.S. v. Drexel Burnham
Lambert ; U.S. v. Michael R. Milken
Assistant United States Attorney for the
Southern District of New York (1983-92)
• Partner
Rogers t Wells
New York, New York
F. ALAN M. COHEN
• Chief, Securities and Commodities Fraud
Task Force (1989-91)
Chief, Organized Crime Unit (1989)
Assistant United States Attorney for the
Southern District of New York (1982-91)
• Partner
O'Melveny & Myers
New York, New York
6. DENISE L. COTE
• Chief, Criminal Division (1991-94)
Deputy Chief, Criminal Division (1984-85)
Assistant United States Attorney for the
Southern District of New York (1977-85,
1991-'94)
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
446
H. RHEA KEMBLE DIGNAM
Chief, Public Corruption Unit
Chief, Narcotics Unit (1981-86)
Assistant United states Attorney for the
Southern District of New York (1976-88)
Deputy General Counsel — Litigation
New yor)c Life Insurance Company
New York, New York
I. JESS T. FARDELLA
Chief, Special Narcotics Unit (1991-92)
Co-lead Counsel: U.S. v. Drexel Burnham
Lambert ; U.S. v. Michael R. Milken
Assistant United States Attorney for the
Southern District of New York (1983-92)
Partner
Brobeck, Hale & Dorr, International
New York, New York
J. MARIA T. GALENO
Assistant United States Attorney for the
Southern District of New York (1985-90)
Partner
Christy & Veiner
New York, New York
* K. HELEN GREDD
• First Deputy Chief, Criminal Division
(1992-93)
Chief Appellate Attorney (1991)
Assistant United States Attorney for the
Southern District of New York (1985-93)
• Partner
Lanklert, Siffert & Wohl
New York, New York
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
447
L. HOWARD E. HEISS
Chief, Securities and Commodities Fraud
Task Force (1992-present)
Chief, Organized Crime Unit (1989-92)
Deputy Chief, Criminal Division (1988-89)
Chief, General Crimes Unit (1987-88)
Assistant United States Attorney for the
Southern District of New York (1983-present)
M. MAKK HELLERER
Chief, Major Crimes Unit (1989-92)
Assistant United States Attorney for the
Southern District of New York (1983-92)
Counsel
Winthrop & Stimson
New York, New York
N. ANNMARIE LEVINS
Chief, Special Narcotics Unit (1992)
Assistant United States Attorney for the
Southern District of New York (1985-92)
Assistant Professor of Law
University of Washington School of Law
O. EDWARD J.M. LITTLE
Deputy Chief, Criminal Division (1988-89)
Assistant United States Attorney for the
Southern District of New York (1982-89)
Partner
Zuckerman, Spaeder, Goldstein, Taylor & Kolker
New York, New York
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
448
p. ROANNE L. MANN
Deputy Chief, Criminal Division (1986)
Chief, Appeals Unit (1983-84)
Assistant United States Attorney for the
Southern District of New York (1978-86)
Partner
Stein, Zauderer, Ellenhorn, Frischer & Sharp
New York, New York
AARON R. MARCU
• Associate U.S. Attorney (1989)
Chief, Major Crimes Unit (1988-89)
Chief, Appeals Unit (1984-85)
Assistant United States Attorney for the
Southern District of New York (1983-89)
• Partner
Howard, Darby & Levin
New York, New York
R. SHIRAH NIEMAN
• Deputy United States Attorney (1993-present)
Senior Litigation Counsel
Chief, Major Crimes Unit
Assistant United States Attorney for the
Southern District of New York (1970-93)
• Associate Counsel
Watergate Special Prosecution Force (1973-74)
(on detail from the Southern District of New
York)
S. BENITO ROMANO
• United States Attorney for the
Southern District of New York (1989)
• Associate U.S. Attorney (1987)
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
449
Chief, Public Corruption Unit (1985-87)
Chief, Appellate Onit (1984-85)
Assistant United states Attorney for the
Southern District of New York (1980-87)
Partner
Wilkie, Parr fi Gallagher
New Yor)c, New York
PETER ROMATOWSKI
Chief, Securities and Commodities Fraud Unit
(1984-86)
Assistant United States Attorney for the
Southern District of New York (1979-86)
Partner
Crowe 11 & Moring
Washington, D.C.
BART M. SCHWARTZ
• Chief, Criminal Division
Assistant United States Attorney for the
Southern District of New York (1984-85)
* Chairman
Decision Strategies, Inc.
New York, New York
V. LINDA C. SEVERIN
• Assistant United States Attorney for the
Southern District of New York (1984-92)
• Bogle s Gates
Seattle, Washington
«."iiic'ra\\"c:™\t\v,rvruAr". \%fr °' ^-"-^ -" '°
450
W. PAUL L. SHECHTMAN
• Chief, Criminal Division (1994-present)
Chief, Appeals Unit (1-984-8S)
Chief, General Crimes Unit (1985-86)
Assistant United States Attorney for the
Southern District of New York (1981-86,
1994-present)
• Coxxnsel to the District Attorney (1987-94)
Manhattan District Attorney's Office
Mew York, New York
2. IRAN-CONTRA COUNSEL
A. RICHARD W. BECKLER
• Fulbright t Jaworski
Washington, D.C.
• Counsel for Admiral John Poindexter
B. DAVID P. DOHERTY
• Senior Vice-President for Enforcement
New York Stock Exchange (1988-present)
• General Counsel
Central Intelligence Agency (1986-88)
C. EARL C. DUDLEY, JR.
• Professor of Law
University of Virginia School of Law
• Counsel for Richard R. Miller
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
451
8
D. LEONARD GARMENT
• Special Consultant, Assistant and Counsel to
President Nixon (1969-74)
• Partner
Mudge, Rose, Guthrie, Alexander & Ferdon
Washington D.C.
• Counsel for Robert C. McFarlane
E. THOMAS C. GREEN
I
I
• Sidley & Austin
Washington, D.C.
• Counsel for Richard Secord
F. M. RICHARD JANIS
• Janis, Schuelke and Wechsler
Washington, D.C.
• Counsel for Albert Hakim
3. FEDERAL JUDGES
A. HONORABLE ROBERT L. CARTER
• General Counsel (1956-68)
Counsel (1944-56)
NAACP
New York, New York
• United States District Judge for the
Southern District of New York (1972-present)
Appointed by President Nixon
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
452
B. HONORABLE MORRIS E. LASKER
• United States District Judge for the
Southern District of New York (1968-present)
Appointed by President Johnson
C. HONORABLE STANLEY J. SPORKIN
• Chief, Enforcement Division (1972-81)
Securities and Exchange Commission
• General Counsel (1981-85)
Central Intelligence Agency
Appointed by President Reagan
United States District Judge for the
District of Columbia (1985-present)
Appointed by President Reagan
OTHER FORMER GOVERNMENT OFFICIALS
KENNETH I. JUSTER
• Counsel to Acting Secretary of State
Lawrence Eagleburger (1992-93)
Counsel to Deputy Secretary of State
Eagleburger (1989-92)
Partner
Arnold & Porter
Washington, D.C.
B. TERRY F. LENZNER
• Assistant United States Attorney for the
Southern District of New York (1966-69)
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
453
10
Director, office of Legal Services, Office of
Economic Opportunity (1969-70)
Assistant Chief Counsel, Senate Select
Committee on Presidential Czunpaign Activities
(1973-74)
Chairman, The Investigative Group, Inc.
Washington, D.C.
C. HERBERT J. STERK
• United States Attorney for the
District of New Jersey (1970-74)
Appointed by President Nixon
• United States District Judge
District of New Jersey (1974-87)
Appointed by President Nixon
• Partner
Stern & Greenberg
Roseland, New Jersey
D. GEOFFREY S. STEWART
• Deputy Assistant Attorney General (1983)
Office of Legal Policy
U.S. Department of Justice
• Partner
Hale and Dorr
Washington, D.C.
E. DAN K. WEBB
• United States Attorney
Northern District of Illinois (1981-85)
Appointed by President Reagan
• Chairman, Litigation Department
Winston t Strawn
Chicago, Illinois
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
454
Rudolph W. Giuliani
March 10, 1994
To Whom It May Concern:
I write this letter of recommendation on behalf of Michael Bromwich, who I
understand has been nominated by President Clinton to be Inspector General of the
Department of Justice.
I have known Michael since 1983 when I became United States Attorney for the
Southern District of New York and Michael was serving as an Assistant United States
Attorney in that office. Having served as Associate Attorney General, I know how
important the Department's Inspector General can be to the operations of the Department.
Having worked closely with Michael, I know what a superb job he would do in that position.
Michael is a consummate professional: fair, objective and reasonable. He is
apolitical. Indeed, I could not tell you what his politics are because they were never made
evident in any of his actions in my office. I consider him to be a professional prosecutor of
impeccable reputation and the highest ethical standards.
Since I am not of the same political party as President Clinton, I hope that my
attesting to the professionalism and independence of Michael Bromwich will remove any
suggestion of partisanship which may have been raised in connection with this nomination.
I commend the President for making a selection of merit and I urge you to confirm
Michael's nomination. I know he will serve with distinction.
• Rudolph W. Giuliani
Mayor of New York City
455
Stuart E. abrams
ATTORNEY AT LAW
230 PARK AVENUE
OF COUNSEL NEW YORK, NY. 10169
SANDOR FRANKEL. P C
12121 661 -5000
TELEFAX (2 12)661 S007
February 10, 1994
To whom it may concern:
I am writing in reference to my good friend and colleague,
Mike Bromwich. Mike is a lawyer of the highest integrity and
ability, and I have no hesitancy whatsoever in urgina his
confirmation as Inspector General of the Department of Justice.
I first became acquainted with Mike when we were both serving
as Assistant United States Attorneys in the Southern District of
New York. Mike and I served together in the Narcotics Unit in the
United States Attorney's office, and my memories of Mike are of a
hard-working prosecutor who was universally admired and respected
by fellow prosecutors, the defense bar, and the Bench Mike
directed the prosecution of several difficult and complex
prosecutions, involving large-scale drug trafficking, money
laundering, and tax evasion. Since I also served as Chief
Appellate Attorney in the United States Attorney's office, I had
the opportunity to review some of the appeals from convictions that
Mike had secured, and it was clear that the cases were prosecuted
in a manner that evidenced both a zeal for justice and concern for
fairness .
Later during our tenures at the United States Attorney's
office, Mike served as Chief of the Narcotics Unit at the same time
that I served as Chief of the Major Crimes Unit. As such, Mike and
I were both members of the executive staff of United States
Attorney Rudolph Giuliani, and we attended many meetings together
at which policy decisions for the Office were discussed. Everyone
who attended those meetings looked to Mike as someone who had sound
judgment, who could be counted on to analyze issues on the merits,
without considerations of extraneous factors such as politics or
public relations.
When Mike left the United States Attorney's office to join the
Office of Independent Counsel, I felt confident that he would
conduct himself in the same even-handed, yet thorough and effective
manner, in which he had always acted as a prosecutor. My knowledge
of Mike's work at the Office of Independent Counsel confirms that
assessment. I briefly overlapped with Mike at the Office of
Independent Counsel, where I served as trial counsel in the
prosecution of Thomas Clines. In that respect, I have first-hand
knowledge of the kind of person Mike is.
456
While every lawyer likes to talk about his or her successes,
I think that perhaps the best illustration of Mike's character lies
in the actions he took after the cases of Oliver North and John
Poindexter were remanded by the D.C. Circuit. Mike is one of the
only lawyers I know who has the courage and integrity always to do
what the law requires, even if that means that a conviction will
not stand. Mike was willing to come to the forefront and represent
the Government when the tough decision had to be made not to pursue
the cases further. Mike had already started in private practice at
this time, and he did not have to take on the assignment. However,
Mike's dedication to pviblic service is such that he does not shirk
from doing what needs to be done, no matter how difficult or
politically unpopular it may be.
I am delighted that Mike is willing to leave private practice
and return to Government to take on the difficult and important
assignment of Inspector General. The country is well-served to
have the dedication and talent of this honorable attorney. Please
do not hesitate to contact me if you would like to discuss Mike
Bromwich any further.
SEA/aad
457
1201 PENNSYLVANIA AVENUE, N. W
P. O BOX 7S6e
WASHINGTON. IX C. 20O44
Febniary 23, 1994
TO KaOM XT MXr CONCXRKi.
I am writing vith reapect to the nomination of Michael
R. Bxxaawich to be Inspector General of the United States Depart-
ment of <Ju8tice. I memrod with Mr. Bromwich in the United States
Attorney's Office for the Southern District of New York during
the Reagan administration. He wae known to me as a fine, able
and balanced prosecutor and lanfyer, and I believe that thia was
his reputation generally in the Office. Be rose to become head
of the K2a-cotica Dtiit before he left. He was )cnown to me not
only as a lawyer of ability, but also one of high professional
ethics. Koreorer, I know of no instance in which political
considerations or any other considerations beyond those appro-
priate to law enforceinsnt entered into his decisionoaking.
When I served there, the Manhattan United States
Atton>ey'a Office had a wealth of capable lawyers and Kike
distinguished himself in that company. I believe he is excep-
tionally well'equii^>ed to oversee investigations of prosecutors
and other lawyers for alleged breaches of pzt^fessional ethics.
I should add that I am a registered Republicsm and have
served in the United States Department of Justice as Special
Assistant to the Deputy Attorney General under President Ford and
as an Assistant United States Attorney, Deputy Chief of the
Criminal Division, Chief of the Harcotlcs Unit, and Chief of the
Seourities and Commodities Frauds Unit in the Manhattan U.S. At-
torney's Office from 1980 to 1989 tinder Presidents Reagan and
Bush. There has been no shortage in this administration of
appointments made for political purposes rather than on the
nerits, but Mr. Brooiwich is a distinguished lawyer who %fould do a
distinguished job.
Bruce A. Bair(
458
Charles M. Carbekry
599 LEXINGTON AVENUE
NEW YORK. NEW YORK 1O022
February 24, 1994
TO WHOM IT MAY CONCERK:
This letter is written to state my knowledge of Michael
Bromwich's character and legal ability. Currently, I am a member
of the law firm of Jones, Day, Reavis & Pogue. For eight and a
half years I was a federal prosecutor in New York City, where I
was Deputy Chief of the Criminal Division and Chief of the
Southern District of New York's Securities Fraud Unit. I have
known Mr. Bromwich professionally for over ten years. We were
colleagues in the United States Attorney's Office and for some
period I had supervisory responsibilities with respect to him.
We have had some professional contact since he went into private
practice.
Throughout our acquaintance I have found him to be an
ethical, thoughtful and capable lawyer. As a prosecutor, I found
him fair, reasoned and responsible. His decisions were based on
the evidence collected and not on any extraneous considerations.
He tried his cases in court and not in the newspapers.
When he was a supervisor in the United States
Attorney's Office in Manhattan, Mr. Bromwich impressed me with
his diligence and leadership. His commitment to public service
is evident from his professional service. Throughout his career
he has displayed a maturity of judgment that has allowed him to
correctly balance his duties as a prosecutor with his
constitutional obligations to the accused.
Very truly yours,
CA
Charles M. Carberry
459
\OT rOUOTTCCMTM STUCCT, «.» ^ - ._ __.^„
rAcaiMitx Cue>ar»-«aTa
P«taruary 22, 1994
To Whooi It: ffay Concern}
I bava tMon Informed that Michael BroBvldi has been
proposed to lead the Inspector General's Officse at the United
Statea Department of Juatice. I write to strongly urge his
oonf iraation .
I have known Michael since September, 1983 when we were
both serving as junior Assistant United States Attorneys In the
Office of the united States Attorney for the Southern District of
Hew Torlc. Michael and I worked closely together there for
approrimately four years.
Midiael was then and is now one of the finest
prosecutors and lawyers I have ever known. He is enormously
industrious and unooquromising in his integrity. Daring Michael's
last year in the southern District of Mew Yozic, he supervised other
proseoitors. From my observation of his performance of that job,
I have complete confidence that he is veil equii^>ed to oversee
investigations of prosecutors and other lawyers. I am fully
confident that he will fairly and honestly perform his duties
without regard to any iaproper external influences. I have never
seen Michael distracted by external forces from the duties he has
sworn on oath to uphold.
In sun, I wholeheartedly recommend Michael to you. I
believe that the Department of Justice would benefit greatly by his
appointment.
Very truly yours.
3otm K. Carroll
460
riny-lourln lloor
Oiticorp Uenter
153 East 53rcl Streel
New Yorlc.N.Y. 10022 -46U
March 7, 1994
CONFIDENTIAL
TO WHOM IT MAY CONCERN
Re: Michael Bromwich. Esq.
Dear Sirs or Madam:
I am writing this letter in support of Michael Bromwich, Esq.,
who has been nominated by President Clinton to be the Inspector
General of the Department of Justice. I have known Michael
Bromwich for over ten years. Although I am now in private practice
with the law firm of O'Melveny & Myers, for nine of the last eleven
and a half years, I worked for the Department of Justice as an
Assistant United States Attorney for the Southern District of New
York, serving at various times as the Chief of the Organized Crime
Unit and as the Chief of the Securities and Commodities Frauds Task
Force. During that period, I worked with Mike Bromwich and came
to know him quite well.
Michael Bromwich stands out as one of the finest lawyers to
serve as an Assistant United States Attorney in the Southern District
of New York. In that job, he distinguished himself in investigations
and trials of numerous complex narcotics and other criminal cases.
Throughout his tenure in the United States Attorney's Office, Michael
Bromwich was known for his intellectual flair, his tenacity in pursuing
every aspect of a case and his grace under pressure. Not surprisingly,
these attributes earned him the respect and admiration of his
colleagues and the agents with whom he worked. He quickly became
the friend, confident, and trusted advisor to many prosecutors and
agents. Ever sensitive to the legal and ethical problems confronting a
prosecutor, Michael Bromwich was someone who was widely regarded
as having "good judgment," a phrase that is high praise among
461
March 7, 1994
Page 2
prosecutors. Even his adversaries shared the view that Michael
Bromwich is a superb lawyer who exercised his prosecutorial discretion
with a sense of fairness and intellectual honesty.
In sum, Michael Bromwich is one of those rare lawyers who
combines intellectual and ethical qualities necessary to perform this
most sensitive job. He will distinguish himself and the DeiJartment of
Justice in the role of Inspector General.
Very truly yours,
Alan M. Cohen
462
Denise Cote
315 Riverside Drive
New York, New York 10025
February 16, 1994
To Whom It May Concern:
I have known Michael Bromwich from 1983, the year he became an
Assistant United States Attorney for the Southern District of New
York, and write to support his confirmation as the Inspector
General for the Department of Justice. Michael is a person of
absolute integrity, enormous energy, and superb judgment. I
believe he will make an outstanding Inspector General.
Soon after Michael joined the United States Attorney's Office,
I supervised one of his first trials. It was immediately apparent
that Michael was going to be an exceptional Assistant. As I got to
know him better over the next few years, this view was confirmed.
He is intelligent, hard working, organized, analytical,
responsible, and ethical. He also uses extremely good judgment to
resolve difficult problems. And not least of all, he is a
thoroughly decent human being.
Since leaving the United States Attorney's Office in 1985, I
have stayed in touch with Michael . I know that he became one of
the most respected and well liked Assistants in an office of
extraordinarily talented lawyers. As the years passed, he handled
increasingly complex matters and was entrusted with great
responsibility.
It did not surprise me that Michael joined the Iran-
Contra investigation or that he aspires to be Inspector General
for the Justice Department. As was apparent from his days in the
United States Attorney's Office, Michael's first love as a lawyer
is public sei-vice. I believe that, as a nation, we are extremely
fortunate that a person as talented as Michael is wishes to serve
in the Government.
I realize that the position of Inspector General requires a
person of absolute independence and integrity. Michael is such a
person. All of his colleagues from over the years share the same
view of him. He is an honest, ethical, decent human being. He
I
463
always understood that the only obligation of a prosecutor is to
do justice — to do the right thing. I am confident that he would
bring the same high standards to bear on his job as an IG.
Very truly yours,
Denise Cote
(202) 514-5746
464
RHEA KEMBLE DIGNAM
61 East 86lh Street, Apt. 62
New York. New York 10028
(O) 212-576-6446
(H)212-34S^16
To Whom It May Concern:
February 14. 1994
I write in enthusiastic support of the nomination of Michael
Bromwich to be Ii\spector General of the Department of Justice. Having
been an Assistant United States Attorney in the Southern District of New
York for 12 years (from August 1976 to July 1988), I write as someone who
cares very much about the Department of Justice and who understands the
importance of the position of Insp>ector General. With that persp>ective,
and having known Michael Bromwich well for more than ten years, I give
him my highest recommendation for this position. I believe Michael's
service will meet the highest standards of fairness and justice and be
entirely non-partisan.
Michael Bromwich joined the United States Attorney's Office for
the Southern District of New York in May 1983 and was assigned to the
General Crimes Unit, which was the entry level unit in the Criminal
Division. Michael quickly distinguished himself as someone who
prepared his cases particularly carefully and thoroughly, wrote beautifully,
and had tremendous potential as a trial lawyer.
I was Chief of that Office's Narcotics Unit at the time, and Michael
was one of the new members of the Office whose skills came quickly to my
attention. I was therefore delighted when in approximately January 1984
Michael was promoted earlier than usual from the General Crimes Unit
and assigned to the Narcotics Unit.
In the Narcotics Unit, Michael oversaw a number of complex
investigatiorvs and trials. He was entirely reliable, and his word was always
good. For that reason, he was trusted not only by federal agents and police
officers, witnesses, his colleagues and federal judges, but also by defer^e
lawyers. He honored his commitments <ind dealt with people in an
entirely ethical fashion. He also continued to develop as an exceptionally
able investigator, trial lawyer and appellate advocate. Michael was also a
pleasure to work with. This was a view shared not only by the managers
in the office, but by his colleagues and the support staff.
For all of these reasorxs, in September 1985 I selected Michael to be
Deputy Chief of the Narcotics Unit In that capacity, he continued to
handle significant investigations, trials and appeals, and demonstrated a
flair for innovative prosecutions He also took on administrative
responsibilities and proved himself an able manager Even as his
465
Rhea Kemble Dignam
Febmaiy 14, 1994
Page 2
responsibilities grew and the demands on his time expanded, his
commitment to fairness and justice was unflagging.
When the time came after nearly five years as Chief of the Narcotics
Unit for me to assume new responsibilities as Chief of the Public
Corruption Urut, I strongly recommended Michael to succeed me as Chief
of Narcotics. From having worked closely with him on a daily basis for
nearly three years, I had complete corxfidence in his skills as a lawyer and
prosecutor, and in his decency and moral uprightness as a person. J was
delighted when he was chosen, in late December 1986, to be Chief of the
Narcotics Unit.
I am confident that Michael would serve as Inspector General of the
Department of Justice in an entirely non-partisan fashion. He was
appointed as an Assistant United States Attorney by United States
Attorney John S. Martin, Jr. (now a federal judge) who was appointed by a
Democratic President. Later, Michael also served under a Republican
United States Attorney, Rudolph W. Giuliani, now Mayor of New York
City. Michael served with distinction in both Administrations. 1 am a
Republican; 1 suspect Michael is a Democrat. The happenstance of our
political party affiliations has never affected either of us in how we
approach a case or the administration of justice
Wliile Michael and I have not worked together since 1987, we have
stayed in frequent contact with each other. I respect his judgment, and
have sought his opinion on matters affecting my own career
development. Our friendship has also continued. Michael has a fine sense
of humor, and is a warm, caring friend. My husband and I have been
guests in Michael's home when we visit Washington. From personal
observation, I can say that Michael is a devoted husband and father. He
clearly enjoys his family, and — just as clearly — they love and appreciate
him.
Please feel free to contact me if 1 can answer any questions about
Michael. I hope that his confirmation wUl occur quickly, as I am confident
Michael can make a significant contribution to the country. We are lucky
that a person of his talents and character has been nominated for this
important position.
Very truly yours,
Rhea Kemble Dignam
466
JESSFARDELLA
I30I Avenue of the Americas
New Yoric, New York lOOIS
an) 581-1600
February 11, 1994
Mayer Brown ( Piatt
2000 Pennsylvania Avenue
Suite C500
WaGhington, D.C. 20006
202-778-0620
202-861-0473 (by facsimile)
Attention: Mark Gitenstein, Esq.
To Whom It May Concern:
I write to voice my support for the nomination of Michael
Bronwich ae Inspector General for the United States Department of
Justice.
Mike is both a former colleague and a good friend. I iiava
known him cince 1983, when we both began serving as Assistant
United States Attorneys in the Southern District of New York. Wc
served together in that office — much of the time in the same
units — until Mike left the office in approximately 1987 to join
the Iran-Contra Special Prosccutor'c office. (1 left the U.S.
Attoimey's Office in 1992 to go into private practice).
I have the highest regard for Mike both as a lawyer and as a
person. He is a thoroughly decent individual, affable and open,
and is a wonderful father and husband. nc has been extremely
effective as both a prosecutor and a defense attorney, and he ic
an outstanding and intrepid trial lawyer. He possesses an
unsurpassed dedication to his work, incisive intelligence, the
highest ethical standards and on unswerving eenoc of fairness.
Indeed, it is hard to imagine a better 'candidate for
Inspector General. One of Kike's earliest successes as a
prosecutor and trial lawyer came in a cacc in which prison guards
at the Metropolitan Correctional Center here in Manhattan were
convicted on corruption charges. Mike's respect for maintaining
467
February 11. 1994
PlBCC 2
the integrity and crcdlljility of law enforcement ensures that th
tough but fair approach character ictlo of hie prior tenurrne I
prosecutor will equally exemplify his command of th« sensitive
taak of policin<j prosecutors and other governmental officials and
And I have no doubt that Mike will fulfill the Inspector
General's function without fear or favor, or political
considerations. Mike is first and foremost a lawyer and a
prosecutor. He is not -political- in any sense of the word - he
does not wear his political views on his sleeve, nor does he
subordinate his ethics and values to career advancement. He is
blunt and plain-spoken, no matter who the audience or who miaht
take offense. He has decided to return to government service
because he truly loves to serve and to see that the right thing
Accordingly, I ask that this letter be consldorod in
^nD^^""^ ^''^''*' deliberations on Mike Bromwich's nomination as
inspector General, and urge that he be swiftly confirmed in this
position. "»i^
Very truly yours,
Jess Fardella
468
RICHARD A. ANOCRMAN
ROeCRT S. APPCL
STEVEN R. BEHGER
JAHES S. BOYNTON
JOHN F. CAMBRIA
ANTHONY J. CARROLL
ARTHUR H. CHRISTY
L- OAVIO CLARK, JR.
RUSSELL J. OaSILVA
RICHARD H. ESTES
HARIA T. CALENO
WILLIAM r. GRAY, JR.
P. GREGORY HESS
L. ANTHONY JOSEPH, JR.
OAVID G. LEVERE
JEROME H. LCWINE
LAURENCE S. MARKOWIT2
JON J. MASTERS
WAYNE C. MATUS
RICHARD SALOMON
SALVATORC A. SANTORO
DANIEL J. SULLIVAN
KENNETH W. TABER
FRANKLIN B. VELIE
JOHN O. VIENER
KARON WALKER
Christy & Viener
620 FIFTH AVENUE
NEW YORK, NEW YORK «0020-2402
(212) 632-S500
fACSIMILC
>212> eiI-S5SS
OIRCCT DIAL NUMBCIi
tZlZt e32-
5581
February 23, 1994
To Whom It May Concern:
I write regarding Michael R. Bromwich, who I
understand is being considered for the position of the Justice
Department's Inspector General. Having worked with Michael in
the United States Attorney's Office for the Southern District
of New York and come to value him as a friend, I wish to
provide my unqualified endorsement of him.
I have known Michael since approximately 1985, and
served under him while he was Deputy Chief of the Narcotics
Unit. I observed Michael to be a highly capable, careful and
meticulous lawyer. He always provided thoughtful and
insightful advice to unit members who sought his counsel. I
would be hard pressed to think of another attorney in the
office who was better organized or more adept at managing
large cases.
I also observed Michael to be a talented trial
lavfyer. I had the pleasure of watching Michael deliver an
opening statement to the jury in one of his cases. I was so
impressed with his style, that I incorporated some of his
techniques into opening statements which I later delivered.
I know Michael to be a decent human being of the
highest integrity. He is someone who can be trusted with the
most delicate and sensitive matters. Indeed, Michael
satisfies the highest professional and ethical standards of
the practice of law.
469
IRISTY & ViENER
Page 2
February 23, 1994
I hope the foregoing is useful and would be happy to
provide further information if called upon to do so.
Very truly yours.
^ji^C^e^
Maria T. Galeno
101U2S6
470
mclcn cncoo
«OOCntC« C. lamklCR
STACCv J. MoniTZ
^OHN s. sirrc«T
SUSAM L. SOMMCR
FRANK M. WOML
LaNKLER SiFFERT & WOHL
ATTORNEYS AT LAW
33«o Floor
500 FirxM Avenue
New York. N. Y. 10110-3393
TCLCPMOMC <2I2» ©2t-e39S
TCLCrAX 42l2t 76^0701
■4A J OLSON
r COuMSCl,
RICHARO f ALBCRT
KARL D COORCR
DAVID C. CSSCKS
KAThRVN J. JANMO^VSK)
OAViD S. JOmcS
sharon l. mccarthy
Patricia mcOOmagh
ChaRlCS T. SRADA
RICHARD H. STRASSaCRC
MARCARCT I. WATSON
March 28, 1994
To Whom It May Concern :
I am writing in support of the nomination of Michael
Bromwich as Inspector General of the United States Department of
Justice.
I first met Mr. Bromwich not long after I was sworn in as
an Assistant United States Attorney in the Southern District of New
voT-V in December 1985. Mr. Bromwich was among the senior
D?osecutors to whom I was referred for advice and guidance in
fu^ftlUng-'y duties as a prosecutor. Like those who suggested I
consilt with^him, I consistently found Mr. Bromwich's counsel wise
and his ethical standards above reproach.
I regard Mr. Bromwich to be a superb choice as Inspector
General and urge his speedy confirmation.
truly yours.
471
HOWARD E. HEISS
27 Barnes Road
Ossining, New York 10562
February 18, 1994
To v?hon It May Concern:
I am writing in behalf of Michael Bromwich's nomination
for the position of Inspector General in the Department of Justice.
I have been employed as an Assistant United States Attorney in the
Southern District of New York since January 1984. I met Mr.
Bromwich when I joined the United States Attorney's Office and
worked with him on a major narcotics prosecution, which we tried
together in 1986. I worked closely with Kr. Bromwich on that case
for more than six months. Based on that experience, I can say that
Mr. Bromwich is an exceptional lawyer and person. I think he will
imake a superb Inspector General.
Mr. Bromwich is cm outstanding lawyer. As an Assistant
United States Attorney, he combined a powerful intellect and
i formidable analytic skills with common sense. Mr. Bromwich excels
: in all areas of practice: his written work is brilliant, he is an
extraordinarily talented courtroom advocate, and a determined and
creative investigator.
I Mr. Bromwich is particularly suited to be the
Department's Inspector General. His tenacity as an investigator is
accompanied by his consistent exercise of sound judgment and a
sense of fairness. His honesty and integrity are beyond reproach.
In carrying out the sensitive responsibilities of Inspector
Seneral, Mr. Bromwich will command the confidence of both the
Department and the public, which will have in Mr. Bromwich an
tnspector General whose decisions will be respected as well-founded
ind fair.
Very truly yours,
Howard E. Heiss
472
1(33 COMHCCTICOT A*/CNUCN.W.
WASHtMCTOM. OC 20036
TclC^hOmC: 202-77596O0
TCLCrAK:202-a33e49l
695 East Maim Stocct
STAMrono.CT 06904-6760
TciX^MOMC: 203-348-2300
TciXrA.x: 203-965-8226
125 WonrM Avcmuc
Palm Bcacm. FL 33480
Tci-CMiONC: 407-6S5-7297
TCLtfAJi; 407-833-6726
WiNTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, NY I0004 - I-J90
TcLePMONE. 212-ese-iooo
TCLCrAX: 212-ase-isoo
TCLCX: ezest WINSTIM
February 14, 1994
2 Tmwocmohtom AvtMUC
LOMOON EC2N 2/y> Emglamo
TClX^MOMC OII-447I-628-4
TciXrAX Oii-447(-e3e-044)
Rue OU TACITuftNC 42
B-I040 B«USSCl.S. BCLCIUM
1tLt»nOMf OII-322-230-I392
TcitrAi OII-322-230-9288
17-2. NiSmi'Sminbasmi 2-Cm
HtMATO-HU, Tokyo IOS, Ja'AN
Ttu:^MOMC:Olt-ei3-3437-97«
TtLCTAM 011-813-3437-9261
ZSOS M<A PACirtc FiNAHCC Ton
CiTiSAMN Plaza
3 Gamocn Roao. Ccmtmal, Homc V
TciX^MOHC. OII-852-530-340
TCirrAJi: Olt-852-530'335S
Mark R. Hellerer
COUNSEL
Hi-a5«-t7e7
TO WHOM IT MAY CONCERN:
I am writing in support of the appointment o£.
Michael Bromwich as head of the Office of Professional
Responsibility of the Department of Justice.
I have known Michael for nearly eleven years both
as a prosecutor and as a private attorney. I worked directly
with Michael in the United States Attorney's Office for the
Southern District of New York for several years from 1983
until he left the office to join the independent counsel
investigation. During that time I was able to observe
Michael's performance in a number of criminal cases,
including several trials. I was also able to observe him m
his position as deputy chief of the Narcotics Unit of the
U.S. Attorney's office. Since that time I have had the
opportunity to discuss legal matters with him on a number of
occasions.
I have found Michael to be a truly outstanding
lawyer, possessing a keen intellect and a facility for legal
analysis. He has also demonstrated great trial skills and an
ability to argue persuasively both to the court and to
jurors. Moreover, he has consistently displayed a tremendous
sense of judgment and fairness in dealing with defendants,
lawyers and witnesses.
Michael is extremely well qualified to handle a
supervisory role at the Department. He has the capacity to
work extremely well under the most difficult and strenuous
situations. In addition, he has a tremendous talent for
working well with other people and for supervising their
work.
Further, I believe Michael to possess an extremely
high sense of legal and personal ethics. In my experience,
he has demonstrated a true commitment to "doing the right
thing" in every situation, regardless of outside pressures
and considerations.
473
"2~ February 14, 1994
In short, I have no doubt that Michael will make ^
l7lLT"^":''"'f -^"^^'^ib^tion to maintaining the Integrity
of the Department of Justice as Chief of the Office of
Professional Responsibility. Indeed, I cannot imagine a
person better qualified to hold that position. "^^^"^ ^
I will be pleased to elaborate further on mv
opinions. If called upon to do so. ^
Very truly yours.
Mark R. Hellerer
474
UNIVERSITY OF WASHINGTON
SlAITl r. WASIIINC. ION 98105
S(l>ool of Imw
Condon Hull. J R- 20
February 24, 1994
To Whom It May Concern:
I write to support in the strongest possible terras the
nomination of Michael R. Bromwich for Inspector General for the
United States Department of Justice. I have known Mike Bromwich
since 1985, when we both were Assistant United States Attorneys in
the Southern District of New York. He is an outstanding lawyer
with an impeccable sense of legal ethics and professional
responsibility. I can think of no one better qualified to serve in
the position for which he has been nominated.
I worked closely with Mr. Bromwich for almost a year, when I
was assigned to the Narcotics Unit. He was the Deputy Chief of
that Unit, and so I had daily contact with him. He was an
excellent supervisor in all respects: careful, thoughtful,
decisive, and open to considering all points of view. He always
had very good advice and exercised sound legal judgment. He had
the reputation of being a tireless and thorough investigator. He
was universally respected by the Assistant United States Attorneys
and law enforcement agents with whom he worked.
I also had the very good fortune of trying a six week
narcotics trial with Mr. Bromwich. The case. United States v.
Vasta et al. . SSS 86 Cr. 60, involved eight defendants, numerous
witnesses, and hundreds of exhibits. His skills as a courtroom
lawyer were simply outstanding. He was thoroughly prepared and
well-organized, and conducted himself in a most professional
manner.
Mr. Bromwich -would bring to the position of Inspector General
his considerable skills as a lawyer, investigator, and supervisor.
Given these skills and his utmost professionalism, he is
particularly well-suited to the task of overseeing investigations
of other lawyers for professional misconduct. Finally, I have
never seen Mr. Bromwich 's conduct as a prosecutor affected in any
manner by political or other improper considerations.
/ 100 Nt: Gim/i/o l'nrl;wiy. SftiiiU Wa,l„„fpon 'JHIO") 1 1 AX (206) 54} - 'if>7l
s
475
In sum, I give my unqualified support to Michael Bromwich
nomination as Inspector General. Please feel free to contact me if
I can provide any further information.
Very truly your^
(^^ It l^zit.-iU '/
Annmarie LevirTs^
Assistant Professor of Law
Telephone: (206)685-8985
476
WASMINCrOH
MIAMI
OALTIMORC
TAMPA
ZUCKFRMAN, Sl'AFDUlt, GOLDSTEIN, TaYIjOR & KoiJKEtt
1114 AVCNUe OF TM£ AMERICAS
HCW VORK, MCW YORK I003«
(2121 '«7B-«eOO
Fcbraiiy 22. 1994
TClXCOPItR
<il2l <'7»«-,l2
¥n<ITER*S NO.
(212) 479-6501
Tci Whom It May Ctinccm:
This letter is being written on behalf of Michael R. Bromwlch, whom I have
known as a colleague and Tricnd Tor over ten years. I understand that Mr. Bmmwich has been
iKiminaiod for the position of Inspector General of the IFoited States Department of Justiec.
]la.scd upon my cxtcresivc profcssiional dealings with Mr. Bromwich, I am able to give him my
enthusiastic recommendation and itutc that I believe it would be difTicult to find a more able
candidate for Inspector General.
Mr. Dromwich and I first became acquainted when wc served together as Federal
proNccutoo* in the United Sniies AlUimcy's Office for the Southern District of New York under
kudolph W. Giuliani. Mr Bromwidi initially worked under my supervision, when 1 was
Deputy Chief (if the Narcotics Unit in the United States Attorney's Office and quickly showed
him.sclf to be one of the most dedicated and conscientious lawcr^ in the Office. I also had ample
<ipportunily to observe Mr. Bromwich's performance during the following years as wc both
rotated through dirfcrcnt units in tbc Office, and I ultimately became Deputy Chief of the
Criminal Division. Mr. Bromwich became one of the stellar lawyers in the Office, known not
only for his iniclligenee and trial abilities but also for his judgment and highly developed sense
of cthic<;. 1 have not known any lawyer in ray twenty years' cxpcrieocc who surpasses Mike in
his ethical sca<(c. I have never known him to be affected by any extraneous consideration in
making decisions on how to proceed, lie never showed himself to be the sort of prosecutor wh<i
would be swayed by political considcratioas or self interest. Mike calkxl the shots exactly as
he saw them with absolutely no regard for anything but justice.
There is likewise no doubt that Mr. Bromwich has the organizational and
leadership abilities f<»r a pasition swich as Inspector General. He is a highly of;ganizcd person
who never hesitated to assume rc<5ponsibllity over complex arvl tin>c-consuming tasks and U*
supervise others in a well-siruclurcd team approach. He is definitely a "can do* sort of person
who can function in extremely complicated situations to obtain the best results.
Oftentimes one is asked to write nxommcndatioos for associates, and (vic
complies out of courtesy «ir obligation. This is not such a case. When I learned of his
nomination. I could not have been more encouraged by the fact that the political process can.
in fact, result in the nomination of someone who is not especially "political' but who ju.<it
happem to he an ouWtanding candidate for the position. I would be more than happy to answer
any questions about Mr. Bmmwich based upon my extensive experience with him. I look
fiirward to hLs confirmation and appointment. ^
477
Stein, Zauderer, Ellenhorn, Frischer & Sharp
AlCMAnO T SMAft^
MANNT rNlSCMC*
OAVIO M CLi.CMMO*M
MAMA C ZAUOCMCM
SIOMCV M STCIN
• CMTMAMO C SCi-LlCn
MOANNC L MAMN
LOUIS M. SOlOMOm
OAVtO C NACMMAN
*5 ROCKCFELLCB PLAZA
NEW YORK. NCW YORK lOHl
(212) 9S6-3700
r-AcsiMicc (2*z) vse-Aoes
JOHN J O'COMMCLL
«>CHAao O MARSMALI.
0» COWMSc^
'CLICC J. BATLAN
JOSt.M M rCRKANOCI
• Cf»i c COLOMAN
STCVCN J LCviHC
•lA^CS MOaCAT PICOTT. jf»
CAAOlinc S. AWCSS
MAL S SHArTCL
February 15, 1994
Re: Michael Bromwich
To Whom It May Concern:
It is with great enthusiasm that I write in sup-
port of the nomination of Michael R. Bromwich for Inspector
General of the United States Department of Justice.
I first met Michael more than ten years ago, when
he joined the United States Attorney's Office for the
Southern District of New York. Over the years, I got to
know Michael on both a personal and a professional level .
When we first met, I was Chief of Appeals and, in that
capacity, supervised Michael's appellate work and also
served as a sounding-board when he sought to talk through
difficult legal issues that he encountered as a prosecutor.
Michael quickly distinguished himself as one of
the young "stars" of the U.S. Attorney's Office. My own
contact with Michael confirmed that that reputation was
amply deserved. Even at a very early stage of his career,
he took on complex and otherwise difficult investigations
and trials, and handled them with the ability and self-
confidence of a seasoned lawyer.
More importantly, Michael's thoroughness and
intelligence were matched by his fair-mindedness and
decency. As a prosecutor, Michael consistently sought to
achieve the just result, without regard to any political or
personal considerations. Simply put, Michael was surely a
formidable prosecutor, but never an overzealous one.
I am aware that in connection with the Oliver
North case, the defense complained of misconduct on
Michael's part; I am also aware that Judge Gesell rebuffed
that challenge. As both a prosecutor and then a defense
X
478
Stein. Zauderer. Ellenhorn. Frischer & Sharp
February IS, 1994
Page 2
lawyer, I have seen various criminal cases in which charges
of prosecutorial misconduct - like charges of ineffective
assistance of counsel - were used as strategic tools by the
defense. Absent substantiation of a charge of that nature,
the mere fact that it was lodged (and here rejected) should
not be permitted to destroy or blemish the reputation of an
individual like Michael Bromwich, whose integrity is of the
highest order.
Respectfully submitted,
i~4^i.^t..,.4ut^ (^ VyL-t^
Roanne L. Mann
RLM/aw
HOWARD, DARBY & LEVIN
479
WARREN CCA>-\V<OOI)JK STKPICEN B LANO
WILUAM R COLUNS
LAWRENCE A DARBY III
JOHN P. COURARY
HARRY C HIVES
MICHAELS HOPKINS
PHIUPK HOWARD
iACK P LEVIN
AARON R. MARCU
SARA E MOSS
C WILUAM PHILLIPS
SCOTT F SMITH
KELLY VANCE
1330 AVENUE OKTIIK AMERICAS TELi;PIIONE 2I2«4I ,nnn
NEW YORK. NY 10019 EAX 212 »4, ,010
February 22, 1994
Re: Nominat ion of Michael R. Bromwich. Esq.
To Whom It May Concern:
It is my privilege to write in support of the
nomination of Michael Bromwich to be Inspector General of
the Department of Justice. I have known Mike since May 16,
1983, the day on which we were sworn in together as
Assistant United States Attorneys for the Southern District
of New York, and I can think of no lawyer in the United
States who could serv^e better, more effectively, or with as
much integrity as Inspector General than Mike.
I had the honor of serving for four years with
Mike in the Southern District of New York. I saw first-hand
his development as a lawyer, as a public servant, and as a
leader of others. He was a model of integrity, judgment,
determination, and professionalism. He attacked difficult
investigations with creativity and vigor, but with the sense
of fairness that all prosecutors should, but do not always,
keep uppermost in their minds in serving the cause of
justice. To be sure, Mike's work resulted in an
overwhelming percentage of convictions; but the defendants
always were convicted fair and square.
In the years that I have known and worked with
Mike Bromwich, he has scrupulously observed the law, the
constitutional rights of the accused, and the codes of
ethics that govern our profession and the work of the
federal prosecutor. I have never seen any sign that he
480
To Whom It May Concern
would permit politics or any other inappropriate
consideration to influence him in the discharge of his
duties. I have complete confidence in his integrity, and I
firmly believe that he would be an outstanding leader of the
Justice Department's internal investigative unit.
I would be pleased to answer any reader's specific
questions or to amplify these expressions of my respect and
admiration for Mike.
Very truly yours.
Aaron R. Marcu
481
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. MoUo Building
One Saint Andrew's Piaia
New Yort, New YoHc 10007
March 1, 1994
To Whom It May Concern:
Re; Michael Broinwich
I write to supply you with information regarding Michael
Bromwich, who has been nominated to the position of Inspector
General for the Department of Justice. My career has been with the
United States Attorney's Office for the Southern District of New
York where I have been an Assistant for almost twenty-four years,
during which time I also served on the Watergate Special
Prosecution Force. During these years I have seen many Assistant
United States Attorneys pass through the office, and I can say
without question that Michael, with whom it was my honor to serve
from 1983-1987, was among the best and the brightest.
Michael became an experienced trial lawyer during his
time in our office, and was promoted to a supervisory position
because of the universally held view that he had excellent
judgment. The qualities of experience and sound judgment are, in
my view, precisely what are necessary to be an effective Inspector
General. Michael will have the experience to review the actions of
prosecutors and others in context, and the mature judgment to
evaluate their conduct fairly and in light of all applicable
ethical standards.
In sum, I have no doubt that Michael would perform the
duties of Inspector General in an outstanding manner, and that the
Department of Justice would be honored by his presence in that
position.
By:
Very truly yours.
shIrah neiman
Deputy United States Attorney
Telephone: (212) 791-0045
482
\viDLLKiE FARR & Gallagher
February 23, 1994
To Whom It May Concern
This is Buhiaitted in ettipport of the nomination of
Michael Bromvich to serve aa Inspector General o£ the
D^>axtiiient of Justice. Michael and I served together as
Assistant United States' Attorneys in the Southern District
of New York in the Narcotics Unit of the Criminal Diviaion.
I continued to work with Michael %rhen I moved on to the
Appeals Unit of the Criminal Division and later when I
served in several supervisory positions under the then
united States Attorney, Rudolph W. Giuliani. Thus. I was
able to observe firsthand Michael's development as a lawyer
and his outstanding skills as a prosecutor.
Michael handled some of the office's most
significant and complex narcotics prosecutions and was
frequently called upon to advise colleagues on ixivestigative
strategies and trial tactics. One case I recall in which
Michael was the principal Assistant involved significant
comq>tion aiaong guards at the Metropolitan Correctiozi2d
Center in New York.
In all of his cases, Michael demonstrated both
courage and extremely sound judgment. He was an outstanding
Assistant United States Attorney and I have no doubt will
serve with great distinction if the ptiblic is fortunate
enough to have his services again.
Sii^cerely^
ito Romano
BS CMC SM fttwl MCAZSaBOt
iw i,^ NT iooa-€6» wvmen
483
SUITC IIOO
lOOr PENNSYLVANIA AVENUE, N.W.
WASHINGTON. O.C. 20004-2S0S
February 11, 1994
To whom it may concern:
Re: Michael Bromwich
I served from 1979 to 1986 as an Assistant United States
Attorney for the Southern District of New York, and as Chief of
the Securities and Commodities Fraud Unit from 1984 to 1986.
Since 1986 I have been a partner in a large Washington law firm.
I have known Mike Bromwich since our overlapping tours in the
U.S. Attorney's Office, and we have maintained our acquaintance
here in Washington. I regard Mike Bromwich as among my best
professional friends, although we are not close personal friends.
Mike Bromwich would rank high on my list for any sensitive
job in public service, for reasons that can only be explained by
describing the most difficult experience of our tenure in the
U.S. Attorney's Office.
About ten years ago a fellow prosecutor developed a drug
habit, and stole hundreds of thousands of dollars in cash and
large quantities of narcotics held as evidence in the U.S.
Attorney's Office safe. At the time this was discovered, this
prosecutor had actually selected a jury in order to commence the
trial of a heroin importation case, for which he himself had
stolen and disposed of the narcotics evidence.
It exaggerates only a little to say that the reaction to
this discovery in the U.S. Attorney's Office was a collective
nervous breakdown. There were those who were preoccupied with
sympathy for their colleague, and others who were determined to
see that he be made a special example. There was no one who was
not profoundly and personally affected by this shocking breach of
trust.
It was Mike Bromwich, however, who was first to ask "what
about the case?" That is, the heroin importation prosecution
that had been left in a shambles because the prosecutor had
stolen the drugs. As matters stood, unless the U.S. Attorney's
Office pursued the case immediately, the charges against two
narcotics importers would have to be dismissed for good. It was
Mike Bromwich who stepped forward and, literally over night.
484
To whom it may concern
February 11, 1994
Page 2
picked up the pieces and tried the case.
The fact that both defendants were convicted says a lot
about Mike Bromwich's lawyering skills. More important, though,
is what that experience teaches about Mike's dedication to the
mission, and his sense of obligation to the public service he has
sworn to render. At a time when others were preoccupied by a
tremendous personal shock, Mike Bromwich demonstrated a unique
strength of character and ability to put aside outside pressures
to see that the job got done.
Mike Bromwich will bring to any public service this same
resistance to outside influences and close focus on the -
obligations of the job at hand. Years down the road, those
responsible for his appointment and confirmation as Justice
Department Inspector General will take great satisfaction in
having selected him.
If you have any questions, I can be reached at
(202) 624-2745.
Very truly yours.
Peter J. Romatowski
485
Bart M. Schwartz
219 EAST 49TH STREET
NEW YORK. NEW YORK 10017
February 14, 1994
To Whom It May Concern:
I am a Republican who has supported Rq)ublican
candidates for national office. I am also proud of having supported
others, when I knew the candidate and believed in his or her ability to"
govern fairly and honestly.
I am an attorney who served as chief of the Criminal
Division under United States Attorney Rudolph W. Giuliani and served
as Mayor Giuliani's volunteer Coordinator of the Economic Development
Screening and Search Committee.
When I was Chief of the Criminal Division Michael
Bromwich was an Assistant United States Attorney who worked under
my supervision. I had the opportunity to work with Mr. Bromwich and
make judgments about him based upon my personal experience.
I always found Mr. Bromwich to be a fair, ethical and
conscientious public servant. No doubt he was a tough prosecutor who
worked to put criminals in jail. But he always worked within the
constitutional and ethical rules which govern a prosecutor's conduct.
Mr. Bromwich never allowed political considerations to enter into his
decisions. Indeed, politics were never an issue when reviewing or
discussing cases with Mr. Bromwich. He always dealt with matters on
the merits.
Mr. Bromwich displayed a keen sense of fairness and
ability to judge the conduct of others fairly and based on the facts. I am
confident that he has the ability to judge the conduct of other prosecutors
and individuals in the criminal justice system. He understands his ethical
obligations, as well as the obligations of others. He has the sti^ength of
486
February 14, 1994
Page 2
character to resist reaching the "popular" result and to ensure that the
right and correct result is achieved. Finally, I believe that he has the
ability to train others, and influence others who will work with him, so
that they will aspire to the same high standards Mr. Bromwich sets for
himself.
Without any reservation whatsoever, I endorse Mr.
Bromwich's nomination to be Inspector General of the Dqiartment of
Justice.
Very truly yours.
Bart M. Schwartz
BMS/cg
487
BOGLE& Gates
LAW OFnCES
UNDA C. SEVERIN
Two Union Square
601 Union Street
Seattle, Washington 98101-2346
Main Office: (206) 682-5151
Facsimile: (206) 621-2660
Direct Dial: (206) 621-2690
Anchorage
Bellevue
Olympia
Portland
Tacoma
Vancouver, B.C.
Washington, D.C.
March 7, 1994
To Whom It May Concern:
r,^ ■ ^ ^-^ write in support of the nomination of Michael R
orjustic5°^ r'^H^^'^e^ ^""""' ^°^ ^^^ ""i^-^ states Department
of Justice I have known Mr. Bromwich since 1984, when I became
New''?orr'"l wSrk^d ll'^^r f'^f""^ '" "^^ ^°"^^^^" Dlstrict'or
1?9? whin T ^°f^^^,3s f federal prosecutor in that Office until
1992 when I entered private practice in Seattle. Based on mv
experience working with him, I believe that Mr! Bromwich is
extremely well qualified to serve in the position ?SrShich he
has been nominated. He combines outstanding legal abilities with
a deep commitment to fairness and justice. acuities with
Drosecutn/''\?f°"''T''^ fnjoyed an excellent reputation as a
prosecutor After I joined the United States Attorney's Office
L^^ i^-^^^'"''^'' '^''^^ ^^ ^^^ ^^"'^^"^ to whom I could turn for
sound advice. He carefully considered the facts and the law
poinS ITTeT'il tr^ h'"^^"^^' ^"^ ^^ ^^^ considerate o? all
n?f?^o ■ "^.''^s highly respected by everyone in the
a tSl lawer""'f '^"^°^' ^ " '^^^^ ^^^"^^^ ^"^ writer and as
a trial lawyer. Moreover, he enjoyed excellent relations with
no H^'^J^r?''^^ ^"^ "^^^ ^^" enforcement agents. In s^m he
facet'of hirworlJ '" " thoroughly professional manner iA eJery
as a oroseinfo^ ^f f 5^*"^"^ prosecutor. Never was his conduct
imorooer ron^?H ^"^^^^^^ ^".^"^ ""^nner by political or other
reproach. "^- "^^ character and integrity are above
-hi.. c^r.^,r.f^' ^f°™"ich's many talents would enable him to serve
Drndia?nn«7 "^J i", ^^ • P°^ition of Inspector General. His
orodigious legal abilities and his professionalism make him
488
March 7, 1994
Page 2
particularly well-suited to the task of overseeing investigations
of other lawyers for professional misconduct.
Mr. Bromwich's nomination for Inspector General has my
unqualified support. Please contact me if I can provide any
further information.
Very truly yours,
BOGLE & GATES
^^ C sj^^~
Linda C. Sever in
489
U.S. Department of Justice
Uniied Slates Aiioniey
Souilient District of New York
To Whom It May Concern:
ViC Silvio J. Mollo liuildui^
One Saifit Andfc*^''s I'law
Wo.- York. Nc^- York 10007
February 15, 1994
I write to support the nomination of Michael Bromwich to the
position of Inspector General for the Department of Justice.
Michael is a superb lawyer and ethical practitioner, and is the
right person for such an important job.
Michael and I served together at the United States Attorney's
Office from 1982 to 1985, and have remained friends ever since. In
an Office that prides itself on selecting bright young lawyers to
serve the public interest, Michael was among the very best and
brightest. He was a tireless investigator who pursued the truth
wherever it led. More importantly, he was as "straight a shooter"
as one could ever wish to know. If I had a difficult call in a
case, I sought out Michael's judgment. I was not alone in that
regard. All of us knew that Michael would give sound advice --
that he was not "pro-prosecution" but "pro- justice" -- and that he
brought no preconceived biases to the task.
These qualities will serve the Department of Justice well if
Michael is its Inspector General. Michael knows the enormous power
that our system confers on prosecutors and knows that that power,
in the wrong hands, can be abused. Of two things I am certain:
Michael will not tolerate ethical lapses, but at the same time he
will not criticize before carefully determining the pertinent
facts. His touchstone will always be fairness. In short, in
Michael, the Department will have an experienced hand -- a
prosecutor tested in some of the most significant courtroom battles
of our day -- and a judicious mind, who will seek to do justice in
his every decision.
490
February 15, 1994
page 2
As a federal prosecutor and as a citizen, I applaud and
enthusiastically support Michael Bromwich's nomination. The
Department and the country will be fortunate to have him as
Inspector General.
Sincerely,
i^iu^
Paul Shechtman
Chief, Criminal Division
491
TCLCPmONC: 202/Ge2-O200
TCLCX: I»7<7t
FACSIMILE: 202/662-4e'43
vffiTcn's oiRecT dial number:
FULBRIGHT & JaWORSKI
LLP.
A REGlSTERCO LiMlTCO LtABILrTV PARTNERSHIP
eoi Pennsylvania Avenue. N W
Washington. DC. eooo^aeo^
HOUSTON
WASHINGTON. DC
AUSTIN
SAN ANTONIO
DALLAS
NEW YORK
LOS ANGELES
LONDON
ZURICH
HONG KONG
February 17, 1994
CQNFIDENTIAT.
Mark Gitenstein, Esq.
Mayer, Brown & Piatt
2000 Pennsylvania Avenue, NW
Suite 6500
Wash, D.C. 20006
Re: Michael Bromwich
Dear Mark:
As counsel for John Poindexter, from time to time I had occasion to deal
with Mike Bromwich while he was a member of the Special Prosecutor's office
investigating the Iran-Contra matter.
In my opinion, Mr. Bromwich always acted in a highly professional
manner. I have also had to meet and deal with Mr. Bromwich since he left the
Special Prosector's office, and I have found him to be an extremely principled person
whose integrity is beyond question.
If you need any further elaboration, I shall be pleased to provided
additional information.
Very truly yours,
Richard W. Beckler
RWB/ecf
492
David P. Doherty, Esq.
295 Greenwich Street. Apt. #3A
New York, New York 10007
March 14. 1994
To whom it may concern:
Michael Bromwich headed-up the independent counsel's investigative team which
focussed on the Central Intelligence Agency during the 1987 timeframe while I was General
Counsel of the Agency. As a consequence, I had extensive dealings with Mr. Bromwich
involving various investigative requests and related matters. Needless to say, much of the
information sought involved very sensitive and highly classified information.
I found Mr. Bromwich to be thoroughly professional in carrying out his assigned
responsibilities. He proved to be an experienced, conscientious and very able lawyer. While
he was aggressive in carrying out his responsibilities, he brought a sense of balance to his
work that permitted a reasoned discussion of important issues and demonstrated a concern for
the unnecessary disclosure of classified information. Most importantly, in my view, Mr.
Bromwich possessed the two most important qualities of a good prosecutor, that is, good
judgement and a respect for fairness.
All of these qualities, I believe, would make Mr. Bromwich an outstanding Inspector
General of the Department of Justice.
Sincerely,
^xfe-^^.^2^2^^^
493
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
580 Massie Road
Charlottesville, VA 22903-1789
Fax 804 / 924-7536
Earl C. Dudley, Jr.
Associate Professor of Law
804 I 924-8813
March 2, 1994
To Whom it May Concern:
I am writing with respect to the nomination of Michael R. Bromwich to serve as
Inspector General of the Department of Justice. My contact with Mr. Bromwich grew out of
his service as a Deputy Independent Counsel in the Iran/Contra investigation. I represented
Richard Miller in that investigation. Mr. Miller pled guilty to a single count of conspiracy to
defraud the United States and testified as a government witness at the trial of Lt. Col. Oliver
North.
I worked closely over a period of approximately one year with Mr. Bromwich and
others involved in the Iran/Contra investigation. I have the highest respect for his ability as a
lawyer, his ethical standards, and his judgment. I think he would make an outstanding Inspector
General.
While Mr. Bromwich and I were adversaries throughout much of our professional
intercourse, I found him to be trustworthy, reasonable, and competent. His judgments, as I
observed them, were those of a consummate professional prosecutor acting in light of the
evidence available to him. At no time did politics, personalities, or other extraneous or improper
considerations appear to impinge upon his course of action. My colleagues and I negotiated a
complex plea agreement with Mr. Bromwich and his colleagues. Throughout that process I felt
that he was fair with me and with my client, and that he displayed a true professional's concern
for the rights of my client. I feel the same way in hindsight.
I also worked with Mr. Bromwich in preparing my client to testify at the North
trial. That process confirmed my view of his professionalism and ethical standards. He never
sought to expand my client's testimony beyond what the existing record showed or what my client
was comfortable in stating as the truth. Because of my client's prior personal and professional
relationship with Col. North, I made it clear that Mr. Miller intended to meet with Col. North's
counsel in advance of the trial. Mr. Bromwich never sought either to impede or to intrude upon
our dealings the Mr. North and his counsel.
The job of Inspector General in the Department of Justice seems to me an
extremely important one in light of growing complaints of abuse of office by federal prosecuting
attorneys. There are many lawyers for whom I have great respect but whom I would nonetheless
494
hesitate to endorse for a job of this magnitude calling for such great delicacy of judgment I
have no hesitation endorsing Mr. Bromwich. I fee! confident in light of our dealings in the
Iran/Contra investigation that he possesses the skills, the integrity, and the judgment for this
demanding position.
Sincerely yours, \
Earl C. Dudley, Jr.
I
495
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February 14, 1994
To Whom It May Concern:
This brief evaluation of Michael Bromwich is based entirely on
my dealings with him in the retrial of Oliver North. I was counsel
for a principal prosecution witness, Robert C. McFarlane, and took
part in the preparatory sessions; an associate, Peter Morgan, was
present during the trial testimony.
In my dealings with Mr. Bromwich, he was consistently
professional, friendly, courteous, and thorough. He was careful to
observe the fine line between obtaining a clear idea of Mr.
McFarlane' s testimony without undertaking to "coach" or "push" him.
I would characterize him as an able and vigorous prosecutor who
felt professionally and conscientiously attached to the observance
of ethical limits in his preparatory work and, as I understood it,
in his trial conduct. (It helped that he occasionally displayed a
decent sense of humor. )
In this limited context, I am confident that he is equipped to
supervise investigations of prosecutors for alleged breaches of
profesional ethics. I never saw any evidence that his behavior as
a prosecutor was affected by political considerations or other
attitudes extraneous to the legal issues.
I discussed this letter with my client, who authorizes me to
say he agrees with my general opinion of Mr. Bromwich.
I am a registered Independent; I was a registered Democrat
before that, but with age, my political interests have become more
eclectic than electoral.
Sincerely,
Leonard Garroent
496
S I D L E Y 8c AU S T I N
A l*A»ITKi;*«SHII' IVri.l UlNt. l-RtlMlNSIftVAl « ONI*<»M At l»»KS
1722 Eye SmEET, N W
^■.,r-.^^ Washington, DC. 2000G
ClflCACO LONDON
Telephone 202: 73GaCX)0
LOS ANOELES TeLEX 80-400 SINGAPORE
NEW YORK Facsimile 202: 730-a7 1 1 tokyo
WRITBII'S DIRBCT MUMBEK »ov»v> i;'^!
(202) 736-8069
February 22, 1994
To Whom It May Concern:
I am writing to endorse enthusiastically the nomination
of Michael R. Bromwich to be Inspector General of the U.S.
Department of Justice.
I met Mr. Bromwich while representing Retired Major
General Richard V. Secord in connection with the Iran/Contra
investigation conducted by Independent Counsel Lawrence Walsh.
Based on my contact with Mr. Bromwich, which has
continued to date, I am convinced that he is extremely well
qualified to assume the position of Inspector General. Mr.
Bromwich possesses a keen intellect and is very experienced in
the conduct of sensitive investigations. More importantly, he is
a fair minded individual who will unquestionably act responsibly
and without partisanship in the execution of his duties. He is
an extremely well respected member of our legal community, and he
enjoys an outstanding reputation among h^ peers. As a result,
he is most deserving of confirmation.
TCG/jmf
'
497
LAW orFicts
JANIS, SCHUELKE & WECHSLER
I7^e MASSACHUSETTS AVCNUe, N W
WASHINGTON. OC 30036
IICHARD JANIS TclCPmOnC
I202I eei 0600
February 15, 1994
To Whom It May Concern:
I am writing on behalf of the nomination of Michael R.
Bromwich to be Inspector General of the Department of Justice.
I first met Mr. Bromwich in early 1987, when he was a Special
Counsel in the Office of Independent Counsel Lawrence E. Walsh. I
represented Albert Hakim, one of the principal targets of the
Iran/Contra Independent Counsel investigation. Mr. Hakim
ultimately was indicted in the central Iran/Contra case, along with
Admiral John Poindexter, Lt . Col. Oliver North and Major General
(Retired) Richard Secord.
During the course of these proceedings, in which Mr. Bromwich
and I were adversaries, I had occasion to deal with him on a
regular basis, both before and after Mr. Hakim's indictment. Those
contacts ranged from discussions regarding scheduling and proce-
dural matters to meetings and arguments regarding substantive
matters, as well as active litigation over disputed legal issues.
Throughout my dealings with Mr. Bromwich, I found him to be
extraordinarily capable and professional at all times. While I
have been publicly quite vocal in my criticism of the Independent
Counsel scheme in general, and the performance of Lawrence E. Walsh
in particular, I have nothing but the highest personal and
professional regard for Mr. Bromwich. I consider him to be a man
of significant experience, exceptional temperament and unquestioned
integrity and professionalism. As an adversary, I found him to be
tough, but reasonable, open-minded, ethical and fair. I trusted
him and felt that when he made a commitment or representation, I
could take it to the bank. I might add that my personal experience
in dealing with Mr. Bromwich turned out to be completely consistent
with what I had been told in advance about Mr. Bromwich by mutual
acquaintances with whom I had made inquiries.
I think it speaks volumes that, notwithstanding the stakes
involved in the Iran/Contra case, the contentious nature of the
litigation and my own strongly-held negative views about the manner
in which Mr. Walsh conducted his office, I came to have the highest
regard and respect for Mike Bromwich and now consider him to be a
498
friend. I was delighted when I heard that he had been selected to
be the Inspector General at the Department of Justice. His wealth
of experience, unquestioned integrity, fairness and professionalism
make him an exceptional choice. He is precisely the type of person
that the public needs to have serving in such an important and
responsible position. ^
NRJ: jkb
Yours truly.
N. Richard Janis
499
CO.%T?i^£NT«AL
UNITED STATES DISTRICT COURT
CHAMBCRS Of"
JUDGE ROBERT L CARTER
Unitco States Courthouse
Foley Square
NEW YORK. N. Y tOO07
February 18, 1994
Mark Gitenstein, Esq.
Mayer, Brown & Piatt
2000 Pennsylvania Avenue
Suite 6500
Washington, D.C. 20006
Dear Mr. Gitenstein:
wh^n =.= My acquaintance with Michael Bromwich dates from 1983
when, as an Assistant United States Attorney in the Southern
banr'^^Hn"' ''^\^°^''' he prosecuted a case before me involving
bank robbery, with a customer being held hostage. The trial
te™f of ^^'^ ^ "^^^ ■"^- ^'^^"•^i-h was then a young prosecuLr in
terms of time on the job, and this could have been his first
fb?litv r"-- "" ^^hibited first rate lawyering ski?il fnd the
ability to vigorously seek a conviction without untoward
anre?^?°"%'/""'- ' "^" impressed with the way he skillfully
and efficiently prosecuted the case. i^xxiruiiy
in a hiohi^^''^"^ r^" ^^^^''' "''■ Bromwich was before me again
distr?hn?i^ ^''^^'' Sk^^ involving a widespread conspiracy to
distribute heroin. The government seized $5.6 million in cash
exoerienc^f °' the trafficking. Mr. Bromwich was now an '
experienced prosecutor and handled this case with great skill
He brought home the case in a month, although a less efficient
Onf^rthe def'^^^r" "'^'""'*^' "^^ ^''^' '°^ ^ we^k or so linger,
been def^Lfn r'^^"''^'" ^^^^ proceeding who was acquitted hal
been defended by court appointed counsel. Mr. Bromwich
prosecuted him before me to require him to reimburse the
government for the costs of his defense since his financial
status did not warrant his having court appointed coCnsel
Bromwich alfhoLh^T K° f"^<^her professional involvement with Mr.
Bromwich, although I have maintained contact since then.
500
Mark Gitenstein, Esq. -2- Feb. 18, 1994
Mr. Bromwich was a first rate prosecutor. He is an
intellectually gifted and highly skilled litigator. I cannot
make a judgment as to his administrative capabilities, but as
insightful and intelligent as he is, and as organized as he was
in his case presentation before me, I would think him fully
capable of handling the oversight of the investigation of lawyers
for alleged breaches of professional ethics.
Mr. BroDwich never acted, in the cases before me, out
of political consideration. Indeed, I have no idea what his
politics are. My sense of him is of a fair minded individual,
who is governed by the highest ethical consideration. I cannot
imagine him doing any unethical act or taking unfair advantage of
an individual for political or unworthy reasons when in a
position of power.
Sincerely,
ROBERT L. CARTER
501
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES COURTHOUSE
NEW YORK. NV I0007
CHAMBERS OF
JUOCE MORRIS E. LASKER
February 16, 1994
To Whom It May Concern:
I am writing in support of the nomination of
Michael R. Bromwich, Esq, as Inspector General of the
United States Department of Justice.
I have known Mr. Bromwich since 1984 when he
first appeared before me as an Assistant United States
Attorney prosecuting a multi-defendant narcotics
conspiracy case known as United States v. Harold Barr.
et al. The case was a particularly complicated one
which required many meetings with Mr. Bromwich as
prosecutor, and counsel. Moreover, the trial of the
case lasted, as I recall, approximately one month and
post-trial hearings were held upon remand as to one
question by the United States Court of Appeals for the
Second Circuit.
In sum, my contact with Mr. Bromwich on a
professional basis were carried on over a period of
several years. Many of the meetings with him and other
counsel took place in my Chambers in an informal
setting. The proceedings required Mr. Bromwich as
prosecutor to make representations to the court, submit
affidavits and, in the instance of the post-trial
hearing to testify as a witness.
On the basis of this long and intimate
exposure to Mr. Bromwich and, as a United States
District Judge who has served since 1968, and is aware
of the importance of the position to which Mr. Bromwich
has been nominated, I declare without qualification
that I consider Mr. Bromwich to be a lawyer and
prosecutor at the highest professional level and that
he is a man and lawyer of highest ethical standards.
502
In my opinion, Mr. Bromwich is intellectually and
professionally well equipped to carry out the
responsibilities of the Inspector General as I
understand them, including the oversight of
investigations of attorneys, whether prosecutors or
not, for alleged breaches of professional ethics.
In discharging his responsibilities in the
litigation before me, Mr. Bromwich was never influenced
by any consideration extrinsic to law enforcement. I
am confident that he would discharge his duties as
Inspector General with the same circumspection.
I would be glad to answer any specific
(questions that a reader of this letter might wish to
put to me relating to Mr. Bromwich's qualifications to
fill the position of Inspector General of the Justice
Department.
Very truly yours.
/(jUj-M^
503
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF COLUMBIA
WASHINGTON 2000I
CHAMBERS OF
TANLEY SPORKIN
ITCO STATCS OlSTMlcr JUOCC
February 14, 1994
Subject: Nomination of Michael R. Bromwich
to be Inspector General of the
Department of Justice
To Whom It May Concern:
I am writing on behalf of Mr. Michael R.
Bromwich, Esq., who was recently nominated by
President Clinton to be Inspector General of the
Department of Justice. I have known Mr. Bromwich
for the past eight years. I have found him to be
an extraordinarily bright and capable attorney who
possesses the highest legal skills. Above all, he
IS a person of integrity and would make an
outstanding Inspector General.
I first met Mr. Bromwich during his
assignment as a member of the Office of Special
Counsel looking into the Iran-Contra affair.
While I found Mr. Bromwich to be a vigorous
investigator and trial attorney, at all times he
discharged his duties in a fair and responsible
manner.
I thought so much of Mr. Bromwich 's abilities
that when he completed his Special Counsel
responsibilities I appointed him on four occasions
to represent indigent defendants on a Pro Bono
basis. He accepted each of these assignments in
the highest traditions of the legal profession.
In each of the four appointments, he handled his
assignments as he would a retained client. On
these assignments, he contributed over 4 00 hours
of outstanding legal services. Mr. Bromwich never
submitted a voucher with respect to his criminal
justice appointments even though he was entitled
to compensation under the Criminal Justice Act.
504
According to the hours he spent on these four
cases, Mr. Bromwich would have been entitled to
some $30,000 in legal fees.
I always found Mr. Bromwich to be a lawyer
possessing outstanding legal skills. While he is
tenacious, he has always been fair minded.
If I can be of any further assistance, please
let me know.
Sincerely,
Stanley /Sporkin
505
KENNETH I. JUSTER
laOO NEW HAMPSHIRE AVENUE. N.W.
WASHINGTON, D.C. 20000-6883
February 14, 1994
Re: Michael R. Bromwich
To \-7hoia It May Concern:
I am writing to express my views with
regard to Michael R. Bromwich, who has been
nominated to be the Inspector General of the
Department of Justice. I have known Mike
since the early 1970s, when we were
undergraduates together at Harvard College.
We subsequently attended Harvard Law School
and the Kennedy School of Government together,
and have been good friends ever since that
time.
I regard Mike as an excellent lawyer who
has the highest ethical standards. He is fair
and impartial, and a person of great integrity
and outstanding intellect. I think he is
well-equipped to oversee investigations of
prosecutors and other lawyers for alleged
breaches of professional ethics. In short, I
admire Mike as an individual and value his
personal friendship.
I should note for the record that I am
currently a partner at the law firm of Arnold
& Porter. I previously served in the State
Department during the Bush Administration,
first as the Deputy and Senior Adviser to
Deputy Secretary of State Lawrence S.
Eagleburger, and later as the Acting Counselor
of the Department.
Sipci^rely,
/Kenneth I - Juster
506
TERRY F. LENZNER
February 21, 1994
To Whom It May Concern:
I have worked for both Republican and Democratic
administrations as follows; Trial Attorney, Civil Rights
Division, 1964-66; Assistant U.S. Attorney's Office,
Southern District of New York, 1966-69; Director, Office
of Legal Services, Office of Economic Opportunity,
1969-1970; Assistant Chief Counsel, Senate Select
Committee on Presidential Campaign Activities, 1973-74,
I have known Mike Bromwich as a professional
colleague for the last several years, having worked with
him and his law firm on a number of cases. I can state
without hesitation that Mike is an even-handed extremely
competent attorney. My judgment of him is that his legal
brilliance alone would dictate actions of only the
highest integrity. Beyond his skills, I know Mike to be
a person of total professionalism and I cannot imagine
any situation where his judgment would be affected by
anything except the merits of the matter at issue.
Indeed, as a government employee for over ten years,
I can imagine how intimidating it might be to have an|
Inspector General's investigation of ones career possibly
leading to criminal prosecution. I can only say that
anyone — including myself — would be fortunate to have«
Mike Bromwich conducting such an inquiry because it would
guarantee an absolute fair impartial review protected by
all appropriate safeguards of due process. Mike's whole
career and character guarantees that he would never
succumb to the greatest public or political pressure.
I cannot imagine finding another attorney better
qualified to serve as Inspector General of the Department
of Justice.
Very truly,
Lenznefr
507
Stern &. Greenberg
COUNSELORS AT LAW
HERBERT J STERN
STEPHEN M GREENBERG
JEFFREY SPEISEH
DAVID S STONE
JOEL M SILVERSTEIN
HOWARD O COHEN
75 LIVINGSTON AVENUE
ROSELAND. NEW JERSEY 07068
aOI 53S1900
FAX: 20I-535-9664
February 14, 1994
TO WHOM IT MAY CONCERN:
To introduce myself, I am a former United States Attorney
for the District of New Jersey, serving from 1970 to 1974,
and a former United States District Judge for the same
district haviny served from 1974 to 1987.
I have known Michael R. Bromwich for approximately seven
years. I came to know him when I was asked by Judge Walsh
to be special outside counsel for him in order to handle
the pretrial Kastigar motions in In the Matter of the United
States vs. Oliver North, etals. During my service with
Judge Walsh's office, I Ceime to know Mr. Bromwich quite
well. Mr. Bromwich is an outstanding lawyer and a truly
fine and dedicated prosecutor. He not only has exceptional
legal ability but is a very fine and very ethical person
as well. I haven't the slightest doubt that he has both
the moral and intellectual capacity to lead other attorneys
in investigating alleged breaches of ethics in the legal
or other professions.
I not only have not ever seen any evidence of Mr. Bromwich
having been influenced by political considerations, but
I know full well through my many contacts with him that
he conducts himself as a professional prosecutor wholly
separate and separated from politics.
HJS/jp
508
Hale and Dorr
CoUNSELLOkS AT LaW
The Willard Office Building
1455 Pennsylvania Avenue, N W , Washington, DC 20004
202-942-8400 • FAX 202-942-8484
February 25, 1994
To Whom It May Concern:
I write this letter in support of Michael Bromwich's
Ccmdidacy as Inspector General for the Department of Justice. Mr.
Bromwich is one of the outstanding lawyers of my generation, and
the country is fortunate that men of his caliber are prepared to
make personal sacrifices to enter public service.
I am a Republican of long standing. I have been a
registered Republican for many years, consistently voted for
Republican candidates, contributed money and resources to
Republican causes, and served in the Justice Department's Office
of Legal Policy during the Reagan Administration. I am sensitive
to issues of partisanship in the Executive branch cind, in
particular, in the Justice Department.
I know of no fairer or decent person than Michael
Bromwich, and can say with confidence that he would discharge the
duties of Inspector General aggressively and impartially. I can
say this from personal experience. From 1987 to 1989, I was a
member of the staff of Independent Counsel Lawrence Walsh and, for
a time, reported to Mr. Bromwich. The assignment of the
Independent Counsel, of course, was to investigate and, if called
for, prosecute persons who violated the law in connection with the
sales of arms to Iran and the provision of support to the anti-
Sandinista forces in Nicaragua. Many judgments of the political
branches of the government were called into C[uestion in that
investigation, and there was the real danger that partisan biases
could come into play.
In those years working with Mr. Bromwich, I found him to
be corrpletely ethical and fair in approaching such issues. He
expressed no political views on the prosecution and refused to
entertain partisan dialogue. He was painstaking in his regard for
individual rights and, in fact, was the Office's leading exponent
that the defendants should have the broadest possible access to
the evidence we had collected. Although a zealous advocate for
the government, he took equal pride in the fairness with which he
treated his adversaries. By the end of the investigation, Mr.
Bromwich was the lawyer in the Office who had won the broadest and
unqualified respect of all who caime into contact with him,
colleagues and adversaries alike.
509
February 25, 1994
From my own years in the Justice Department, I
understand -- and fully agree with -- the principle that those
charged with policing the Department's conduct must be above
partisanship and beyond reproach. I can say from personal
experience that I have known no lawyer that better meets these
standards than Michael Bromwich . I would urge that his candidacy
he given every favorable, and pron^t, consideration.
Please do not hesitate to contact me with any questions
you might have .
Very truly yours,
Geof fre
Stewart
-2-
510
V^nn^STON & STRAWN
FREDERICK M WINSTON (ieS3-t886|
SILAS H STRAWN (1691 1946)
DAN K. WEBB
(312) 558-S856
35 WEST WACKEH DRIVE
CHICAGO. ILLINOIS 60601-9703
(312) SS8'S600
FACSIMILE (31?) 556 5700
February 17, 1994
NEW YORK OFFICE
>'5 WATER STREET
NEW YORK. NY 10038^86.
(212) 269.ZSO0
WASHINGTDN. OC OFFICE
1«0 L STREET. NW
WASHINGTON, OC 200(»-3SO2
(202) 371.5700
To Whom it May Concern:
Michael Bromwich is among the most talented attorneys I
have worked with in my more than 20 years as a practicing lawyer.
He is an individual of impeccable integrity. For these reasons, I
enthusiastically support his nomination for the position of
Inspector General of the United States Department of Justice.
I met Michael in 1989 when I was selected to lead the
Government's trial team in United States v. John Poindexter .
Michael was near the end of his tenure at the Office of Independent
Counsel when I first became associated with that office. Shortly
thereafter, I worked with him extensively in connection with the
pre-trial proceedings in the Poindexter case. Michael's role in
those proceedings was of critical importance in our obtaining a
favorable result in the trial of the case.
Michael's conduct throughout those proceedings
demonstrated his considerable legal talents, wisdom and experience.
His approach to this prosecution was consistently guided by his
strong sense of ethics and a professionalism that reflected the
highest traditions of the Department of Justice. I was also
impressed with Michael's ability to handle the very sensitive
matters involved in that case with the utmost discretion.
In 1981, President Reagan appointed me as the United
States Attorney for the Northern District of Illinois, a position
in which I served until 1985. On the basis of my experiences as
the United States Attorney and as a colleague of Michael's, I am
confident that Michael is particularly well suited to oversee
sensitive investigations of prosecutors, other lawyers and
professionals for breaches of their ethical duties. Michael's
talents as a lawyer, guided by his uncompromising ethical sense and
unfailing discretion make him a perfect candidate for the position
of Inspector General.
cerely.
d^^'^-uJdL^
'Dan K. Webb
DKW/med
NOMINATIONS OF ROBERT HENRY, TO BE
U.S. CIRCUIT JUDGE; DEBORAH BATTS, RAY-
MOND FINCH, AND SOLOMON OLIVER, TO
BE U.S. DISTRICT JUDGES
FRffiAY, APRIL 29, 1994
U.S. Senate,
Committee on the Judiciary.
Washington, DC.
The committee met, pursuant to notice, at 10:19 a.m., in room
5D-226, Dirksen Senate Office Building, Hon. Howard M. Metzen-
3aum presiding.
OPENING STATEMENT OF SENATOR METZENBAUM
Senator Metzenbaum. I open this hearing with an apology to all
)f you. I apologize for being late. It is my understanding that the
/arious Senators who are with us this morning have all agreed
ihat, because Senator John Glenn has another commitment, we are
joing to let him proceed first.
Senator Glenn.
STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM
THE STATE OF OHIO
Senator Glenn. Thank you, Mr. Chairman. I appreciate it very
nuch. I am very happy today to introduce a man who I believe is
?oing to be a real superstar in the Federal courts: Dean Solomon
Dliver. I am also pleased that his wife, Louisa, and his sons, Solo-
non and Jonathan, could be here today, along with Mr. and Mrs.
Solomon Oliver, Sr. I would like for them to stand, if they would,
please.
Now, Mr. Chairman, there are also 16 brothers, sisters, in-laws,
and other family members here today. I am not going to read all
:heir names. Stand up, please, all of you. I think it is just great
'or you to all be here on this occasion.
Dean Oliver's inspiration to go into law did not come from read-
ing books or watching Perry Mason on TV. His inspiration came
Prom being beaten up as a young 16-year-old boy while driving
l;hrough the Deep South on the way to a church function in Florida.
The car young Oliver was riding in stopped at a gas station, and
when the 16-year-old boy tried to use the only men's room there,
a white gas station attendant assaulted him, hitting him repeat-
sdly and shouting that Bobby Kennedy had sent young Oliver there
to cause trouble.
(511)
512
All Solomon Oliver knew at that time was that Bobby Kennedy
was the Attorney General, and if a lawyer could instill such fear
in a man so filled with hatred and racism, he wanted to be a law-
yer, too.
He did become a lawyer, and a good one. After graduating from
New York Law School, Dean Oliver clerked for Judge William
Hastie, the first African-American appointed to the Federal bench.
Thankfully, Dean Oliver then came to Ohio. He joined the U.S. at-
torney's office, serving as chief of the civil section, where he super-
vised more than 4,000 cases, and later was the founding chief of
appellate litigation.
Dean Oliver currently serves as associate dean of the Cleveland-
Marshall College of Law. He has been very active in community ac-
tivities in the Cleveland area, including service for his church, for
the College of Wooster, and the Cleveland chapter of the NAACP.
Mr. Chairman and members of the committee, I could go on all
morning about Solomon Oliver, but I am not the one you want to
hear from today. I know Dean Oliver will serve with great distinc-
tion on the Federal bench. And, Mr. Chairman, I know that you
join me in this because we went together in suggesting this nomi-
nation to the President. So I am sure you will join me in expressing
the very highest of recommendations for Dean Oliver, and I am
glad to be here to have a chance to introduce him this morning.
Thank you very much for changing the order of the hearing.
Senator Metzenbaum. Thank you very much. Senator Glenn. I
want to tell you, you have convinced me. [Laughter.]
Senator Moynihan, we are delighted to have you with us.
STATEME>fT OF HON. DANIEL PATRICK MOYNIHAN, A U.S.
SENATOR FROM THE STATE OF NEW YORK
Senator MOYNIHAN. Thank you. May I ask Prof. Deborah Batts
to come up here at this point?
Mr. Chairman, Professor Batts has her mother with her today
and some family. Perhaps you would like to introduce them.
Senator Metzenbaum. We would love to meet them.
Ms. Batts. My mother, Ruth Batts; my sister, Denise Batts; my
sister, Mercedes Ellington; my daughter, Alix McCown; my son
Jamie McCown. And I also have some friends with me: Sandy
Farber and her son, Ben; Howard Clyman and his wife, Kathie
Roberts.
Senator Metzenbaum. It has got to be a very proud day for the
entire family and friends.
Senator Moynihan. Thank you, Mr. Chairman. And it is a very
proud day for New Yorkers. I appear here for Senator D Amato as
well. We have here one of our exemplary teachers and practitioners
of the law in New York. She is a graduate of Radcliffe College and
of the Harvard Law School. She went directly back to New York
where she served with some distinguished firms that would be fa-
miliar to you — Cravath, Swaine & Moore — and then in 1979 joined
the criminal division of the U.S. attorney's office for the Southern
District of New York. This is the court to which we respectfully rec-
ommend her.
After service, distinguished service, in the U.S. attorney's office,
she became a professor of law at Fordham University, where she
513
teaches regularly, teaches courses in property and domestic rela-
tions law, and is also simultaneously, and has been for the last 5
years, 4 years, a member of the Law Revision Commission of the
State of New York, a very dense and, to my mind, inassessable
subject which engages them over the years.
We are proud to recommend her, sir. She has the highest aca-
demic credentials. Her experience in the criminal division has in-
volved her in many things of great consequence and with great suc-
cess, and it is our honor to present her to this honorable commit-
tee.
Senator Metzenbaum. Your recommendation is very meaningful
to this committee. Senator Moynihan, and we appreciate it very
much. We will be very pleased to go forward with the hearing in
connection with Ms. Batts a little bit later. Thank you very much.
Senator MOYNIHAN. Thank you, Mr. Chairman.
[The prepared statement of Senator D'Amato follows:]
Prepared Statement of Hon. Alfonse M. D'Amato, a U.S. Senator From the
State of New York
Mr. Chairman, I am honored today to present to this committee Ms. Deborah A.
Batts, whom the President has nominated for appointment to the U.S. District
Court, Southern District of New York. I would also like to recognize Ms. Batts'
mother, Ruth, her children, Alix and Jamie, her sisters, Denise and Mercedes
Ellington, and her friend Sandy Farber, and her son Ben.
Ms. Batts comes before this committee with a comprehensive legal background.
After graduating from Harvard Law School in 1972, she began her legal career as
a law clerk to Judge Lawrence W. Pierce who was appointed to the U.S. District
Court for the Southern District of New York by President Nixon, and later ap-
pointed to the Court of Appeals by President Reagan.
After clerking for Judge Pierce, Ms. Batts went on to an associate position with
the firm of Cravath, Swaine and Moore in New York City, where she worked until
1979. , ^
After leaving this firm, Ms. Batts became an Assistant U.S. Attorney with the
U.S. Attorney General's OfRce in the Criminal Division. While working in the Major
Crimes Unit of the Criminal Division, Ms. Batts tried 9 cases and served as sole
or chief counsel on all but one during her 5 years with the office.
Ms. Batts currently teaches law at Fordham University in New York City, where
she has taught for the past 10 years. During her summers, Ms. Batts works with
the city of New York Corporation Counsel Trial Advocacy Program at Fordham Uni-
versity.
Ms. Batts is an active member of many worthwhile organizations in her commu-
nity and has served on such important committees as the nominating committee of
the New York City Bar Association.
As Ms. Batts advances in her distinguished legal career, she continues to set an
example for all those around her. Mr. Chairman, I am confident that Deborah Batts
will prove worthy of this committee's support. She has the experience necessary to
undertake the tough job of a U.S. District Court Judge with the highest degree of
competence.
Senator METZENBAUM. Our next witness is a man who has told
the world within the last few days that he is going back to the
world of academia, going to leave the U.S. Senate, a long-time good
friend of mine. We are happy to have you with us, Senator Boren.
STATEMENT OF HON. DAVID L. BOREN, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator BOREN. Thank you very much, Mr. Chairman. It is a
real pleasure for me to be here this morning to present to you and
to the members of the committee Robert Harlan Henry, who has
been nominated by the President to be a judge of the U.S. Court
of Appeals for the Tenth Circuit.
514
Before I make further remarks, I would like to ask Robert to in-
troduce the many members of his family and friends who are with
him today.
Senator Metzenbaum. Please do.
Mr. Henry. Thank you, Mr. Chairman. I would like to introduce
my wife, Jan Ralls Henry, and my daughter, Rachel, and my son,
Joshua; my stepsons, Scott and Daniel. My father, the late Judge
Lloyd Harlan Henry, could not be here, but my mother, brother,
and sister are here, if they would stand, and my niece, Meghan;
friends, Larry and Jean Lucas, Brooks Richardson, Miles Tolbert,
Pete and Stacia Glavas, and Jack and Lorene Akins.
Thank you, Mr. Chairman.
Senator Metzenbaum. Rachel, do you think your Daddy will
make a good judge?
[Ms. Henry nods affirmatively.] [Laughter.]
Senator Metzenbaum. OK.
Senator BOREN. Let me say, Mr. Chairman, I do not think I could
add anything after the very convincing and credible testimony that
you have just heard. I would say to my friends from Oklahoma who
are here today: you have just seen why Chairman Metzenbaum is
one of the most beloved figures to all the family members in the
U.S. Senate, including my two children to whom he has shown so
much kindness over the years.
Senator Metzenbaum. Thank you.
Senator BOREN. It is a real privilege and a special pleasure for
me to be able to present Robert Henry to you. The friendship be-
tween our two families goes back all the way to our grandparents
who were very close friends, living in a small community together,
where Robert's grandparents were teachers. Of course, I also knew
his late father. Judge Henry, who was an outstanding member of
the bench in Oklahoma, and I had the opportunity to observe Rob-
ert beginning in his elementary school days. And when he was in
high school and I was a college professor at a nearby school in the
town where he grew up, I had the privilege of coaching him in the
youth legislature in which he participated. So our friendship has
been a very strong one and a very special one.
He is one of the most able young people to come from our State
in many, many years. He is currently serving as the dean of the
Oklahoma City University School of Law. He began serving as
dean in 1991. Before that, he was attorney general of the State of
Oklahoma from 1986 to 1991, where he established a wonderful
record and was one of the most respected public officials we have
ever had. His service was recognized by very many different orga-
nizations, including the American Indian Bar Association, which
gave him their special recognition award for fostering positive dia-
log between Native Americans and other Oklahomans during the
time that he was State attorney general.
Before that, he served in the Oklahoma State House of Rep-
resentatives for five terms. The last four times he was reelected in
the best way that you can be reelected — completely without opposi-
tion. His being elected four times to the State legislature without
opposition indicates to you the respect with which the people of his
home community held him.
515
During all of this time, he served as an adjunct professor at
Oklahoma City University and at the University of Tulsa, and from
time to time at Oklahoma Baptist University in his hometown. He
graduated from the University of Oklahoma School of Law and the
University of Oklahoma as an undergraduate with high honors in
political science in 1974.
He was very active nationally when he was attorney general of
the State of Oklahoma. He chaired the Agriculture and Rural Af-
fairs Committee of the National Association of Attorneys General,
he chaired the Constitutional Law Advisory Committee, and he
was vice chair of the Committee on Civil Rights. He has been a
commissioner of the National Conference of Commissioners on Uni-
form State Laws. He was chairman of a special study commission
that considered revision of the Oklahoma State Constitution.
He has been a very ecumenical person. I mentioned that he has
been an adjunct professor at Oklahoma Baptist University. He has
also been past chairman of the board of St. Gregory's College, a
Catholic institution in our State. And he currently serves as presi-
dent of the Oklahoma City Chapter of the National Conference of
Christians and Jews.
He is a person that, through his leadership and through his per-
sonal integrity, has really brought people together and helped to
create a spirit of community in our State. So he brings to this as-
signment and to the bench, a brilliant mind, and a good heart as
well. I think that we are all blessed as a Nation when we have peo-
ple willing to take on this kind of public service who bring with
them that combination of qualities.
So, Mr. Chairman, it is a real privilege for me to be able to
present Robert Henry to you for his testimony later this morning.
Senator Metzenbaum. That is a very strong recommendation.
Senator Boren, and you may be certain the entire committee will
take your recommendation into account as we consider the con-
firmation process.
Senator BOREN. Thank you very much, Mr. Chairman. I might
also mention that Senator Nickles had to be away today, but he
asked that I also convey to you and to the committee his very
strong recommendation for the confirmation of this nominee.
Senator Metzenbaum. Thank you very much.
Senator BoREN. Thank you.
Senator Metzenbaum. Now we have Representative Ron de
Lugo, Congressman Ron de Lugo, Lt. Gov. Derek Hodge, and Jus-
tice Verne Hodge, presiding judge of the Virgin Islands Territorial
Court.
Now, I want to say to all of you that I have discussed this entire
matter with the Judiciary Committee, and no matter how great the
nominee is, I think the Judiciary Committee would like to take a
week down in the Virgin Islands and continue the hearings down
there. [Laughter.]
Please proceed.
STATEMENT OF HON. RON de LUGO, A REPRESENTATIVE IN
CONGRESS FROM THE U.S. VIRGIN ISLANDS
Representative de Lugo. Mr. Chairman, thank you very much
for this warm welcome to the committee, and I want to say that
516
it is a great pleasure to present our nominee to you. I think that
we have a first here. Judge Raymond Finch has been nominated
by three Presidents, and we checked on that, and that has never
happened before. You have had nominees who were nominated by
two Presidents, but this is the first one nominated by three. He is
an outstanding judge and member of our community, and before we
get into the recommendations, may I ask Judge Finch to recognize
some members of his family who are here with him today. We have
quite a number of people up here from the Virgin Islands.
Judge Finch, I think you have some cousins with you.
Judge Finch. Thank you, Congressman de Lugo, Mr. Chairman.
I would like to introduce my cousin from the Virgin Islands, Mrs.
Norman Armstrong, and her daughter, Kyra Armstrong, who is an
attorney with the firm of Howrey & Simon. There are so many peo-
ple here from the Virgin Islands. All I would do at this time is to
say to everyone from the Virgin Islands in the audience to please
stand.
Senator Metzenbaum. I was wondering why we had such great
attendance this morning. Now I know. We are delighted to have
you all here, and I think it is a great testimonial to you, Judge,
that so many came from so far to be with us this morning.
Judge Finch. Thank you, sir.
Representative DE LuGO. It certainly is, Mr. Chairman, because
right now is the biggest day of Carnival in the Virgin Islands, so
they are giving up
Senator Metzenbaum. I am telling you, we ought to adjourn this
hearing and hold it there. [Laughter.]
Representative DE LuGO. Judge Finch has been nominated by
President Carter. It came too late in his administration for the
Senate to act. The same thing happened with the Bush administra-
tion, and now we have the nomination of Judge Finch again be-
cause we want to see him on that bench and so does the President.
Senator METZENBAUM. How many years ago did President Carter
nominate him?
Representative DE LuGO. How many years ago was that?
Judge Finch. I think that was in 1980. Either 1980 or 1982. His
last year in office.
Senator METZENBAUM. That is when there was an aircraft shot
down?
Judge Finch. That is correct. My nomination came immediately
after that aircraft was shot down in the Mideast desert.
Senator Metzenbaum. And then President Reagan also nomi-
nated you?
Judge Finch. President Bush.
Senator Metzenbaum. And what happened to that?
Judge Finch. That nomination came late in his term, and it died
in the committee.
Senator Metzenbaum. You have been to the mountain many
times. [Laughter.]
Representative DE LuGO. There was a little more to it during the
Bush administration, but we will not go into that today. We will
let things ride. There were two nominees put forward, and one
nominee, you know, the Bush administration pushed it quickly,
and our Democratic nominee they did not quite
517
Senator Metzenbaum. Got lost in the shuffle.
Representative DE LuGO. Yes, got lost in the shuffle. You know
how those things are.
So the Clinton administration has taken care of that and gotten
it up here, and I want to say to this committee because the nomi-
nation just got up here a month ago that we greatly appreciate
your moving Judge Finch forward.
Judge Finch is an outstanding candidate, and from 1966 to 1969,
he served with distinction in the U.S. military. He was a first lieu-
tenant when he entered. He attained the rank of captain, and he
was awarded the Army Commendation Medal and the Bronze Star.
In 1976, Judge Finch, a graduate of Howard, was appointed to
the bench of the Virgin Islands municipal court, the same court
with which he had clerked a decade earlier. As a Virgin Islands
territorial court judge for the past 17 years. Judge Raymond Finch
has garnered a well-deserved reputation as a man who possesses
excellent credentials and a wonderful judicial temperament.
Since 1980, he has served as the administrative representative
of the presiding judge in the St. Croix division, and the presiding
judge is with us here today. Judge Hodge, who has come here to
support this candidacy, as is the lieutenant governor. He super-
vised all court personnel, and he coordinated all of the fiscal mat-
ters of that division.
Judge Finch's confirmation would stabilize a court which has en-
dured a prolonged period of transition. Most importantly, as a na-
tive Virgin Islander, Judge Finch is thoroughly knowledgeable in
local customs and conventions and is a highly qualified, highly re-
spected member of our judicial and social communities.
I urge this committee to give Judge Raymond Finch's candidacy
favorable consideration, and I would like to ask that my entire pre-
pared statement be put in the record.
Senator Metzenbaum. Without objection, the entire statement
will be included in the record.
[The prepared statement of Mr. de Lugo follows:]
Prepared Statement of Hon. Ron de Lugo, Virgin Islands, Chairman,
Subcommittee on Insular and International Affairs
Mr. Chairman, members of the Senate Committee on the Judiciary. First, I want
to personally thank Chairman Biden for responding to my handwritten note on
March 28 and moving so expeditiously on the nomination of Judge Rajrmond Finch
to the District Court of the Virgin Islands.
It is with great pleasure that I introduce Judge Finch to the committee today.
With me are the Lieutenant Governor of the Virgin Islands, the Honorable Derek
M. Hodge, and the Presiding Judge of the Territorial Court of the Virgin Islands,
the Honorable Verne A. Hodge.
Both gentlemen know Judge Finch personally and will speak to his career and
his qualifications, and they, too, will recommend this fine nominee to the committee.
As I wrote Chairman Biden last March, the Virgin Islands has had at least one
vacancy on the bench of the District Court since 1987, almost seven years now, and
had two vacancies for nearly three years. The seat for which you are considering
Judge Finch has been unfilled since 1989.
During this entire time, visiting judges from the Third Circuit Court fiUed in.
I want to express my appreciation to those jurists, and particularly Chief Judge
Stanley Brotman, for their hard work and their good work in keeping the system
functioning during those long vacancies.
But visiting judges cannot operate the system properly for such a long period of
time.
Inequities must inevitably occur, as they did when, in cases for example, when
one judge would hear a case and another judge would do the sentencing.
518
The result was a community left confused and with some diminished faith in the
federal court.
The previous administration had real problems filling these two seats on the Vir-
gin Islands federal bench because there simply were not enough qualified Repub-
lican jurists to assume both positions.
After months of work, we reached a compromise with the last administration so
that two candidates acceptable to both political parties wovild be moved in tandem.
But the administration did not adhere to the agreement.
One candidate was moved quickly, but the other was delayed until it was too late
for this committee to act.
As a result, the St. Croix community had to wait another year and a half for the
new administration to make the second nomination.
I sincerely hope we will never have these long vacancies on the bench again.
Today, the nominee first proposed by President Carter in 1980 appears before the
committee.
It is indeed my honor to have the opportunity to familiarize this committee with
a man who is well known to all Virgin Islanders for his judicial accomplishments
and his contributions to our community.
Judge Finch has dedicated nearly thirty years of his career to public service and
a better way of life for the citizens of the Virgin Islands.
Three decades ago, after completing his undergraduate studies at Howard Univer-
sity, Raymond Finch served as a temporary duty marshal for the United States Jus-
tice Department. Upon graduation from Howard University Law School, he spent
two years as a legal assistant to the Judges of the Municipal Court of the Virgin
Islands.
From 1966 to 1969, Judge Finch served with distinction in the United States
Anny — entering as a First Lieutenant and later attaining the rank of Captain. For
his service, Judge Finch was awarded the Army Commendation Medal and the
Bronze Star Medal.
In 1976 Judge Finch was appointed to the bench of the Virgin Islands Municipal
Court — the same coiut for which he had clerked a decade earlier.
As a Virgin Islands Territorial Court Judge for the past seventeen years, Ray-
mond Finch has garnered a well deserved reputation as a man who possesses excel-
lent credentials and judicial temperament.
Since 1980, he has served as the Administrative Representative of the Presiding
Judge in the St. Croix Division, supervising all court personnel and coordinating all
fiscal matters of the division.
Judge Finch's confirmation wovdd stabilize a court which has endured a prolonged
period of transition.
Most importantly, as a native Virgin Islander, Judge Finch is thoroughly knowl-
edgeable in local customs and conventions and is a highly-qualified, highly-respected
member of our judicial and social communities.
I urge this committee to give Judge Raymond Finch's candidacy its favorable con-
sideration.
Mr. Chairman, it is my privilege to introduce to your committee the Honorable
Raymond L. Finch, Judge of the Territorial Court of the Virgin Islands and a nomi-
nee for the District Court of the Virgin Islands.
Mr. DE Lugo. And at this time, may I ask that the Chair recog-
nize the Lieutenant Governor who has journeyed up from the Vir-
gin Islands to support this nomination.
Senator Metzenbaum. Happy to have you with us, Governor. If
you have a short statement, go ahead and proceed.
STATEMENT OF DEREK M. HODGE, LIEUTENANT GOVERNOR,
U.S. VIRGIN ISLANDS
Mr. Hodge. Thank you, Mr. Chairman. Ciood morning.
Mr. Chairman, thank you for this opportunity to attest to this
committee my support of President CHnton's appointment of Judge
Raymond Finch to the U.S. District Court of the Virgin Islands. To-
day's hearing ends a long struggle to advance Judge Finch to the
Federal bench — a struggle that has spanned two decades and the
administrations of more than one U.S. President.
519
I endorse Judge Raymond Finch and heartily urge this commit-
tee to confirm him with dispatch.
I hope that your confidence in him will match mine, because I
know Raymond Finch from three perspectives: I know him for his
brilliant career as a lawyer and his distinguished record as a judge
in our local court. I know him as a fellow Virgin Islander. And I
know him as a lifelong friend with whom I grew up.
The modern political history of the Virgin Islands began at the
end of the 1960's as the territory prepared for the popular election
of its first Governor in November 1970. It was in those years also
that our first native-born Federal judge, Almeric Leander Chris-
tian, was appointed by President Nixon. This brilliant Crucian ju-
rist served his people and his country with historic distinction for
two decades as chief judge, and his presence on the bench served
as an enduring symbol of justice, self-governance, and equality to
all Virgin Islanders — and so it will be with Judge Finch.
After Judge Christian's appointment, the next three appoint-
ments to the second seat on our Federal bench were of individuals
who, although undeniably part of our community, were not natives.
These three men — Judge Warren Young, Judge David O'Brien, and
our current Chief Judge Thomas Moore — each earned their ap-
pointments because they were remarkable practitioners and schol-
ars, because they understood the Virgin Islands and our diverse
population, and because they chose to make our islands their home.
They were Virgin Islanders — not by accident of birth but by
choice.
But for nearly 5 years, since the death of Judge O'Brien, the ter-
ritory has been without its second permanent local judge. Many
visiting Federal judges have filled this void at great cost to the U.S.
Government, and for a few years — ^between Judge O'Brien's death
and Judge Moore's appointment — even the position of chief judge
was held by a visiting Federal jurist, U.S. District Court Judge
Stanley S. Brotman.
Judge Brotman made a great contribution to the Virgin Islands
during that period, especially in the chaotic months after Hurri-
cane Hugo devastated our homeland, and he continues to serve to
this day. We will be forever grateful to Judge Brotman for his com-
mitment and for his understanding in those years of transition and
hardship. And the people of the Virgin Islands are equally appre-
ciative of the scores of Judge Brotman's colleagues who have filled
temporary positions on our district court.
The list of these dedicated men and women is long, and my time,
Mr. Chairman, is short. But with your permission, I would like to
enter their names in the record of this proceeding with the com-
mendation and appreciation of the people of the U.S. Virgin Is-
lands.
[The list follows:]
Visiting U.S. District Court Judges to the U.S. Virgin Islands, 1989-94
Stanley S. Brotman— Visiting Chief Judge
Daniel H. Huyett, Jr., Edward N. Cahn, Joseph J. Faman, Ann E. Thompson,
Clifford S. Green, Joseph L. McGlynn, Alfred M. Wolin, Lawrence W. Pierce, Ben-
jamin F. Gibson, James L. Watson, Barbara Hackett, Leland Nielsen, Mark
Constantino, Robert L. Carter, Wendell A. Miles, Frank Kaufman, James T. Giles,
520
John P. FuUam, Richard P. Conaboy, Aubrey E. Robinson, Robert F. Peckham, Ray-
mond Broderick, William P. Gray, Morton I. Greenburg, Robert J. Kelleher, and
Constance B. Motley.
Mr. Hodge. Now comes the nomination of Judge Finch — and
none too soon.
Mr. Chairman, it is painful for me to acknowledge that our beau-
tiful American paradise has not been immune to the same prob-
lems of crime that afflict every U.S. locality. Although the fre-
quency of this activity is no greater than any other American town
with its share of unemployment, illicit drugs, recessionary econ-
omy, idle youth, and shrinking public resources, every citizen feels
personally the impact of every criminal incident because we are so
small — ^three tiny islands, 140 square n^iles, 100,000 residents.
But we are resolved to eliminate this scourge, and we have taken
measures in the public and private sectors to win the battle.
The criminal justice system is at the vanguard of this struggle,
and as an integral part of that structure. Judge Finch's experiences
as a deputy U.S. marshal, as an attorney, as a member of our Law
Enforcement Planning Commission, as director of our Boys Club,
as a judge of the territorial court, and as an occasional judge of the
U.S. district court by special designation all speak eloquently to his
fitness, his temperament, and his place in the Virgin Islands com-
munity.
Mr. Chairman, each of the Virgin Islands celebrates a cultural
festival each year. On St. John, it is celebrated on the days leading
to July 3 and 4, our local Emancipation Day and the U.S. Inde-
pendence Day, respectively. On St. Croix, it is celebrated between
Christmas and Three Kings' Day. And as Congressman de Lugo,
who revived the tradition 40 years ago, can tell you and has just
said, on St. Thomas, Carnival is being celebrated literally as we
speak.
In our rich culture, these celebrations recall the past, celebrate
the present, and give us all hope for the future. From all walks of
life, from all backgrounds, from many places of origin, our multira-
cial, multicultural population celebrates at once our diversity and
our commonality; our "Caribbean-ness" and our "American-ness";
our lifestyle and life itself. Most of all, these unique celebrations
are the quintessential expressions of freedom — individual emanci-
pation and the institutional freedoms and human rights only a
country like ours can offer.
And it is freedom I speak of when I ask you, Mr. Chairman, to
give us this able jurist; give us this native son of our soil; give us
Raymond Finch for our district court.
Such a favorable decision will reaffirm our pride as Americans
and our participation in the greatest democracy in history, and it
will reaffirm our pride and identity as self-governing, self-judging
Virgin Islanders.
Thank you very much, Mr. Chairman.
Senator Metzenbaum. Thank you very much. Governor.
Justice Hodge, do you care to msike a statement?
521
STATEMENT OF HON. VERNE HODGE, PRESIDING JUDGE,
VIRGIN ISLANDS TERRITORIAL COURT
Judge Hodge. Mr. Chairman, I can assure you mine will be
much briefer than that.
Mr. Chairman, on behalf of the judges and staff of the territorial
court, I am pleased to take this opportunity to recommend that
your committee approve the nomination of one of our colleagues.
Judge Raymond Finch, to the position of judge of the district court
of the U.S. Virgin Islands.
Judge Finch and I have served together on the territorial court
bench since 1977, and I can, therefore, attest to his excellent per-
formance during those 17 years. As a presiding judge of the court,
I know that we will all regret losing his services if he is confirmed.
But the appointment of native Virgin Islanders to Federal service
in the Virgin Islands is such an imperative at this time that we
strongly support his selection by President Clinton.
While Judge Finch's qualifications by training, experience, and
character are well documented in his file, I think you should know
that he is a quiet, observant individual whose calm demeanor is
complemented by his firm and decisive decisionmaking, thereby
justifying my reference to him as one who wields an iron fist in a
velvet glove.
Accordingly, we recommend his confirmation, and, Mr. Chair-
man, I have an even briefer statement that Governor Farrelly
asked me to read briefly to you, and I have a copy of his statement.
I would like to submit it to the committee for the record. He briefly
states as follows:
I wish to join many Virgin Islanders in my support of the nomination of Terri-
torial Court Judge Raymond Finch to become the Federal District Court Judge for
the District of the Virgin Islands. Because this position has been vacant since 1989,
I am particularly pleased by your prompt scheduling of committee hearings on his
nomination. I have had the privilege of nominating Judge Finch as a judge of our
Territorial Court, and I am pleased to report that he has served in that position
with distinction.
It is beyond doubt, therefore, that he will continue to render outstanding service
to the people of the Virgin Islands as a judge of the district court. Accordingly, I
recommend that Judge Finch's nomination be given speedy confirmation by your
committee.
And this is signed by Alexander A. Farrelly, Ciovernor of the U.S.
Virgin Islands.
Thank you very much, Mr. Chairman.
Senator Metzenbaum. Thank you very much, Judge Hodge.
We will proceed in order. Judge Finch, if you would be good
enough, we will call you back at a little bit later time. And I think
we will now proceed to the nomination of Robert Henry, nominee
to be U.S. Circuit Judge for the Tenth Circuit.
This is a very difficult job for me, and so I thought that maybe
Rachel and Josh might like to come up here and help me in this
confirmation process. Rachel and Josh, would you like to come up
here and sit while your Daddy is sitting over there?
If they do not want to, don't embarrass them. [Laughter.]
Mr. Henry. We think, Mr. Chairman, that my daughter will. She
left momentarily.
Senator Metzenbaum. OK.
522
Mr. Henry. One hesitates to give her another chance to say any-
thing, but she might want to do that.
Senator Metzenbaum. Mr. Finch, do you solemnly swear to tell
the truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Finch. I do.
Senator Metzenbaum. Thank you.
Do you care to make an opening statement?
Mr. Henry. No, Mr. Chairman, I do not.
Senator METZENBAUM. Dean Henry, if you are confirmed as an
appellate judge, it is not at all unlikely that at some point you may
be faced with applying a Supreme Court precedent with which you
do not personally agree? Would you consider yourself bound by
such a precedent?
TESTIMONY OF ROBERT HENRY, OKLAHOMA CITY, OK, TO BE
U.S. CIRCUIT JUDGE FOR THE TENTH CIRCUIT
Mr. Henry. I believe, upon taking the oath, I am bound to follow
precedent of the Supreme Court of the United States.
Senator METZENBAUM. Your questionnaire indicates that you
have served as a State representative with the Oklahoma House of
Representatives, as a litigator in private practice, as the Attorney
General of Oklahoma, and as the dean and professor of law at the
Oklahoma City University School of Law. In what way do you be-
lieve that your legislative, litigation, and academic experiences
have prepared you for a position on the tenth circuit.
Mr. Henry. Mr. Chairman, there are a variety of and great dif-
ferent numbers and kinds of cases that come before the circuit
court. My experience in the legal profession has been broad. I have
been privileged to serve in the State legislature as an executive.
Service in those branches has taught me and helped me under-
stand the separation of powers, and I believe that my broad back-
ground with the constraint I would feel from understanding how
the other branches operate, I believe that would help me very
much should I be privileged to be confirmed.
Senator METZENBAUM. Rachel, would you like to come up here
and help me in this hearing, or would you rather sit where you are,
dear?
[Pause.]
Senator Metzenbaum. If you have any questions for your Dad,
you can ask those, too.
questioning by senator metzenbaum
Since their inception, the Federal Sentencing Guidelines devel-
oped by the Sentencing Commission have been the subject of de-
bate, largely by reason of concerns about mandatory minimum sen-
tences. What do you see as the pros and cons of mandatory sen-
tencing?
Mr. Henry. Well, as a judge, I would be obligated to follow the
sentencing guidelines, and the debate has been a lengthy one. On
the one hand, we have sought as a society to promote certainty,
equality of sentencing. On the other hand, judges sometimes feel
the need to look at particular circumstances where they might
523
want to make an adjustment based on one thing or another. That
debate continues to rage.
I am happy that this committee, Mr. Chairman, has had inter-
action with the Federal judiciary to continue to discuss and mon-
itor these developments, and I would have no problem following the
guidelines.
Senator Metzenbaum. What would you do if you were faced with
a situation where you felt that the sentencing guidelines were just
too harsh?
Mr. Henry. Senator, I would be obligated to follow those guide-
lines.
Senator Metzenbaum. Your questionnaire states that as Attor-
ney General of Oklahoma, you served as Chair of the Oklahoma
Constitution Revision Study Commission. I understand that after
2 years of review, the panel proposed a complete redrafting of the
State Constitution.
Would you care to discuss some of the significant changes in the
Oklahoma Constitution that the commission proposed and the rea-
sons behind those suggestions?
Mr. Henry. Well, Mr. Chairman, Oklahoma's Constitution was a
product of the progressive era around the turn of the century, and
at the time it was written, it was the longest constitution ever
penned by the hand of man. It included such wonderful things as
the flash point of kerosene, and
Senator Metzenbaum. The what?
Mr. Henry [continuing]. The flash point of kerosene, and regula-
tions for railroad passenger fares were set by constitution. Public
officials were required by constitution to swear numerous oaths
that they would not accept free rides on the railroads.
Not meaning to besmirch William Jennings Bryan, who was a
great man, he praised that constitution as being the greatest con-
stitution ever struck off by the hand of man, greater than the Con-
stitution of the United States.
Well, Mr. Chairman, it was not. It was too long. It was too in-
flexible. And we sought to vastly shorten it and mirror the majesty
and flexibility of the U.S. Constitution.
Senator METZENBAUM. I understand you were recently named to
a new uniform committee to review the uniform evidence code to
conform with Federal changes and to address new technologies not
adequately handled by either the current Federal or uniform act.
Would you be good enough to explain what new technologies this
committee addressed and whether your experience has provided
you with any insights concerning the challenges that Federal
judges face?
Mr. Henry. Mr. Chairman, the committee has not met yet. It
will meet in Chicago at the Uniform Law Conference in July. The
committee is concerned with several things that this committee has
dealt with: videotaped depositions of witnesses, television, those
sorts of things. And it seeks to suggest to the States that the States
work together with the Federal Rules of Evidence so that we can,
where uniformity is desirable, try to mirror the good work of the
Federal Rules of Evidence.
Senator Metzenbaum. Is there anything else that you would like
to add. Dean Henry?
524
Mr. Henry. No, Mr. Chairman.
Senator Metzenbaum. Do you solemnly swear that if you are
confirmed as a circuit court of appeals judge that no matter how
difficult a day is on the bench that you will be kind, considerate,
and loving to Joshua and Rachel? [Laughter.]
Mr. Henry. I will do everything in my power to do that.
Senator Metzenbaum. Do you have any questions that you want
to ask?
She does not. OK. Thank you for coming and helping me.
Mr. Henry. Thank you, Mr. Chairman.
Senator Metzenbaum. Professor Batts, would you be good
enough to come to the witness table?
Do you solemnly swear to tell the truth, the whole truth, and
nothing but the truth, so help you God?
Ms. Batts. I do.
Senator Metzenbaum. Do you have any little ones with you that
you want
Ms. Batts. Mr. Chairman, I am afraid to ask them to join you
up there. [Laughter.]
Senator Metzenbaum. Whatever your pleasure. We would be
happy to have them if you wanted them.
Do you have an opening statement. Professor?
TESTIMONY OF DEBORAH BATTS, NEW YORK, NY, TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW
YORK
Ms. Batts. Mr. Chairman, the only opening statement that I
would like to make is that my twin sister, Diane Batts Morrow,
and her husband, John Howard Morrow, and their children, Kieran
and Evan Batts Morrow, were not able to be here today, but they
are here with me in spirit. Thank you.
QUESTIONING BY SENATOR METZENBAUM
Senator METZENBAUM. We miss them, and we are glad to know
that they are here with you in spirit. I am sure that had they been
able to, they would have been pleased to be here on this very mo-
mentous occasion.
You have been a law school professor at Fordham University
since 1984. Why do you want to switch gears at this time?
Wouldn't the life of being a professor be more relaxing and com-
fortable?
Ms. Batts. Without question, Mr. Chairman, the life of a profes-
sor, I think, has been a delightful one. I have had many wonderful
experiences and have taught literally thousands of students
throughout the years.
I do feel, however, that the honor and the challenge of being a
Federal district court judge would make leaving the life of ease of
a professor definitely worthwhile.
Senator Metzenbaum. Professor Batts, tell us something of your
background. I notice you went to Radcliffe. How were you able to
go to Radcliffe? Was it a scholarship? Was your family able to pro-
vide?
Ms. Batts. I was extremely lucky. My father, who unfortunately
passed away in 1992 and, therefore, obviously is not able to be with
525
me today except also in spirit, was a wonderful man and a good
provider for his family. He was a doctor, and, in fact, at the time
I started college, he became a professor of obstetrics and gyne-
cology, so that I was extremely lucky to have had the benefits of
a loving father and mother, and my sisters as well.
Senator Metzenbaum. Your Dad passed away in 1992?
Ms. Batts. Yes.
Senator Metzenbaum. It is a sad commentary that he could not
be with you on such a momentous occasion.
You also served as an assistant U.S. attorney for the Southern
District of New York for years, and I think you took that position
after you had been with Cravath, Swaine & Moore for 6 years.
How did you happen to make the change from the private sector
to the public sector, and I would guess with some financial sacrifice
as well?
Ms. Batts. Mr. Chairman, I think that I have had an extremely
fortunate and lucky professional career. Every time that I have
made a switch in career, it has always been at a point when I have
truly enjoyed what I was doing before I made the switeh. I think,
though, that you have wisely caught on that as my job satisfaction
increased, my financial remuneration kept going down, so that I
have a downwardly mobile financial spiral. This is true.
Senator METZENBAUM. When you were in the U.S. district attor-
ney's office, what kind of work did you do?
Ms. Batts. I was in the criminal division, Mr. Chairman, and I
had a variety of cases. I dealt with some international art theft
cases, armed bank robbery, bank embezzlement, tax evasion, immi-
gration cases, a wide variety. I did not, however, have much experi-
ence, if any, in narcotics or in major crimes, that is, organized
crime.
Senator Metzenbaum. You say you have not had experience?
Ms. Batts. I have not.
*^enator Metzenbaum. You have written a number of public pub-
lications and served on a number of committees that address devel-
oping areas of family law such as family leave. Would you give us
some idea of the thrust of those articles, please?
Ms. Batts. Mr. Chairman, the work that I did involving family
leave particularly was work that I did as a member of the Sex and
Law Committee of the Bar Association of the City of New York.
And New York State at that time had proposed some legislation
dealing with family leave, and our committee — and I was one of the
members of the subcommittee — worked on trying to make com-
ments and helpful points and amendments to the suggested legisla-
tion by New York State.
I have written in the area as well. I wrote an article dealing with
whether or not we should have a right to inheritance for children.
I believe also that I still mean what I said in the first footnote of
that article, which is that my parents should take that article very
seriously because I did recommend that children should have a
right to inheritance. And I also said that my children should not
take it very seriously. [Laughter.]
Senator Metzenbaum. If you are confirmed as a Federal district
court judge, which I assume you will be, at some point you may be
faced with applying a second circuit court precedent with which
526
you do not personally agree. Would you consider yourself bound by
such a precedent?
Ms. Batts. Absolutely, Mr. Chairman. As a Federal district court
judge in the Southern District of New York, I would be absolutely
bound by second circuit precedent.
Senator Metzenbaum. Of course, you may also be faced with
cases involving issues on which the second circuit has not ruled.
Can you give us any idea of the perspective that you would bring
to a case in which there was no precedent, no Supreme Court deci-
sion, a matter of original issue, and how you might approach it as
a jurist?
Ms. Batts. Mr. Chairman, what I would attempt to do is to find
the nearest analogous situation where there is precedent and to be
guided by that to see if that could help me in terms of figuring out
where to go on that new issue. But I would certainly use precedent
as a basis for attempting to see where that precedent would lead.
Senator Metzenbaum. Rule 11 of the Federal Rules of Civil Pro-
cedure allows judges to impose sanctions against lawyers or parties
who file frivolous lawsuits. Recently, there has been much debate
over the courts' increased willingness to punish litigants under rule
11. Some lawyers argue that the rule is being applied to chill pur-
suit of creative arguments in developing areas of the law such as
civil rights.
Given your experience as a litigator whose practice has become
more defense-oriented over the past 2 years, what do you think of
these concerns, and how might you respond to them in the court-
room?
Ms. Batts. Mr. Chairman, I think that the debate is well rep-
resented on both sides. I can see, indeed, the need initially which
created rule 11, where people felt that the courts were being inun-
dated with frivolous lawsuits, and I believe that there are cases
where, indeed, the application of rule 11 sanctions are appropriate.
But in each instance, I think that the best way of dealing with it
would be looking at the particular facts before me. I think that, in-
deed, yes, there could be times when there was abuse of rule 11
and other times when application of rule 11 is totally appropriate.
But each case would be the basis upon which to make that deter-
mination.
Senator Metzenbaum. I have become disturbed about the appli-
cation of rule 11 because I could see where, in years past, and
maybe even now, some civil rights cases, human rights cases,
rights of minorities of all kinds, might have been looked upon
askance by the court, and that the lawyers practicing in those
areas might very well have felt constrained as far as going forward
if they were going to suffer a penalty.
Do you have any thoughts on that subject?
Ms. Batts. Mr. Chairman, I think that there is a distinction be-
tween novel and frivolous, and I believe that if rule 11 is appro-
priately applied, it would restrict or inhibit frivolous lawsuits as
opposed to individuals seeking redress for wrongs through the
court which may not have been brought before. So hopefully, jurists
are able to make that distinction, and I would hope that I would
be able to do so as well.
527
Senator Metzenbaum. I noticed as I glanced through the cases
in which you were involved, it appears that you were on the de-
fense side in the main. Is that the case?
Ms. Batts. No, Mr. Chairman. In active cases, I was the assist-
ant U.S. attorney who was prosecuting the case on behalf of the
U.S. Government.
Senator METZENBAUM. I see. OK. Thank you very much, and I
wish you well in your new endeavor.
Ms. Batts. Thank you very much, Mr. Chairman.
Senator METZENBAUM. Our next witness is Judge Raymond
Finch.
Judge, do you solemnly swear to tell the truth, the whole truth
and nothing but the truth, so help you God?
Judge Finch. I swear.
Senator METZENBAUM. Do you have any young members of the
family that you would like to have help me up here?
Judge Finch. No, I do not. Senator.
Senator METZENBAUM. Judge Finch, do you have an opening
statement that you care to make?
TESTIMONY OF RAYMOND FINCH, KINGSHILL, ST. CROIX, VI,
TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF THE VIR-
GIN ISLANDS
Judge Finch. Not per se, Mr. Chairman, except to express my
deep appreciation for the honor of being here today.
QUESTIONING BY SENATOR METZENBAUM
Senator Metzenbaum. Let me ask you a question. Is the former
Senator from Massachusetts with whom I served, is he in the Vir-
gin Islands these days or is he in the States? I am speaking of
Judge Finch. Is that Edward Brooke?
Senator Metzenbaum. Ed Brooke, yes.
Judge Finch. No; he is not in the Virgin Islands these days. Sen-
ator.
Senator Metzenbaum. I see.
Judge Finch. I think he might be on the island of St. Maarten.
Senator Metzenbaum. There has been a great deal of attention
paid to the increased caseloads of Federal courts and the resulting
problem of docket backlogs. Newspaper accounts state that 17.6
percent of the civil cases in the Virgin Islands pend for 3 or more
years and that few jurisdictions have a higher backlog.
Now, a backlog, as you well know, has an adverse effect on the
litigants before the court who have been forced to suffer at least
some delay in the resolution of their claims.
Can you tell us what you know about the reason for the backlog
which is so high in the Virgin Islands?
Judge Finch. The primary reason for that backlog, Mr. Chair-
man, is because of the fact that we do not have a permanent U.S.
district court judge assigned to the Virgin Islands, and a result of
that, only criminal cases are heard in the U.S. district court. Civil
cases have not been processed since 1989.
Senator Metzenbaum. That is a real travesty. If confirmed, what
steps will you take to ensure that the docket is caught up as quick-
ly as possible, being both fair and reasonable?
528
Judge Finch. Mr. Chairman, I believe firmly that a hands-on ap-
proach by the judge, who works very closely with the clerk of the
court and is deeply involved in the processing of the cases, helps
to a large extent to move cases along. I do not believe that a judge
should sit back in his chambers and await for cases to flow to him.
I believe that he should be actively involved in the processing of
those cases. I have done that in the past, and it has worked.
Senator Metzenbaum. Would you make a special effort to bring
that backlog of cases up to a current period?
Judge Finch. If I am confirmed, Mr. Chairman, I shall make
that special effort.
Senator Metzenbaum. If confirmed, at some point you could be
faced with applying a decision of the court of appeals for the third
circuit with which you disagree. Would you have any difficulty ap-
plying and enforcing precedents with which you did not agree?
Judge Finch. No, Mr. Chairman. I have absolutely no problems
in applying precedent.
Senator Metzenbaum. Is there any special area of the law.
Judge Finch, which has been of particular interest to you, whether
it is a Federal law or a Virgin Island law? Is there any particular
area of concern or interest for you?
Judge Finch. Yes, Mr. Chairman. I am very concerned with juve-
nile laws, the structure of the domestic relations court, and the
process of juvenile cases in that court. In our time, we are now ex-
periencing an influx of minors in the courtroom for serious and not-
so-serious offenses. And I believe that it is time that the juvenile
courts be properly staffed, and not only with support personnel but
with judges so as to give minors the proper guidance and direction
which they need from the judiciary.
Senator Metzenbaum. Do the district courts of the Virgin Is-
lands have different kinds of cases than you might find in the
States?
Judge Finch. That is so. It was more so up until January of this
year. The U.S. District Court of the Virgin Islands hears criminal
cases to a larger extent than the U.S. district courts in the U.S.
mainland. As of January of this year, a large part of the local
criminal caseload was shifted to the territorial court. So now that
is not such a big problem in the U.S. district, but still, nonetheless,
there are those cases, those criminal cases which the district court
may still hear.
Senator Metzenbaum. The committee has heard from many indi-
viduals who support the appointment of a native Virgin Islander to
this judicial vacancy. I understand from your questionnaire that
you were bom in the Virgin Islands, and after completing law
school in the United States at Howard University, you returned to
clerk for the Virgin Islands Municipal Court and then went on to
practice with the law firm of Hodge, Sheen, Finch & Ross.
How do you feel that your background and experiences in private
practice and on the bench in the Virgin Islands have prepared you
for this position?
Judge Finch. Well, my experience in private practice was very
general, and I did that general practice for a number of years. And
in the municipal court and the territorial court, my experience has
been broad-based. I have done all kinds of cases, from traffic court
529
through the domestic relations type cases, divorces, probates. I
have done criminal cases, admiralty cases. So with that broad-
based experience, I think I can bring a wealth of experience to the
U.S. court.
Senator Metzenbaum. In evaluating candidates for the bench,
this committee has traditionally looked not only at the nominee's
credentials and professional background, but also at the question
of temperament. I have to say that good temperament and de-
meanor are characteristics which, I think everyone would agree,
are some of the most important qualities needed in a judge.
I understand that since 1979 you have served on the Judicial
Ethics Committee of the American Judges Association. Your ques-
tionnaire states that this committee reviews cases involving allega-
tions of past judicial misconduct. Given your background and prior
experience on this committee, would you tell us about the role and
significance of judicial temperament and indicate what elements of
this temperament you consider most important?
Judge Finch. One of the factors in temperament that I consider
to be most important is patience, and courtesy. Particularly in the
Virgin Islands where the tradition has been to allow litigants, not-
withstanding the fact that they are represented by counsel, to ad-
dress the court. And I think that I have exhibited that degree of
patience over the years that has stood me well.
I pride myself in not being result-oriented, and that comes, of
course, from years on the bench, and it comes from being patient
and listening to all of the evidence that flows from the litigants.
Senator Metzenbaum. Thank you very much. Judge Finch, and
I wish you well. I feel certain that the committee will look favor-
ably on your nomination.
Judge Finch. Thank you, Mr. Chairman.
Senator Metzenbaum. Our last witness is of particular interest
and concern to me since I was one of those two Senators who nomi-
nated Dean Solomon Oliver for this position. So I am very happy
to see you here now.
I see some young members of your family here. Dean Oliver,
would you care to introduce me to them and let me invite them to
join me up here if they would like to.
Mr. Oliver. Yes, Mr. Chairman, I would like to introduce my
family. Senator Glenn did introduce certain members of my family,
and he had the others stand. But because my family is so impor-
tant to me and has been over the years, if you do not mind, I would
like to take a little bit of time to introduce those who are here.
Senator Metzenbaum. Take as much time as you would like.
Mr. Oliver. You already met my wife, Louisa, but I would like
them to stand, and they can sit down immediately, if they would
like, after I call their names: My wife, Louisa; my son, Solomon Mi-
chael Oliver, who is a freshman at Amherst College; my son, Jona-
than Douglas Oliver, who is in his last year of high school and is
trjdng to make up his mind from some good choices right now. My
father. Rev. Solomon Oliver, Sr., and my stepmother. Queen Oliver;
my sister, Mary O. White; my sister, Eunice O. Boswell; my broth-
er-in-law, Alexander Boswell; my sister, Barbara O. Richards, and
her son, Timothy; my sister, Diane O. Gibson, and her sons, John
Gibson and Phillip Gibson, and her daughter, Sallee Nicole; my
530
brother, Daniel Oliver; my brother, Nathan Oliver, Sr., and his
sons, Nathan Oliver, Jr., and William Leigh Oliver; my niece, Anita
Winfield, and her children, Nia Winfield and Cameron Winfield.
I would like to say that I am sorry that my other three brothers
could not be here. They wanted to be, but they had obligations
which kept them from being here: my brother, Leroy, my oldest
brother; my brother, Paul, who is a lawyer and an excellent one in
his own right; and my brother, David.
I am also sad that my mother, Willie Lee Oliver, could not be
here. She was so instrumental in raising all of us and giving us,
along with my father, obviously, Reverend Oliver, their most ster-
ling examples to us all.
I have two CSU Cleveland-Marshall College of Law — that is
where I teach — colleagues here. They surprised me this morning:
Assistant Dean Louise Dempsey and Administrative Assistant Lou-
ise Mooney. They flew down early this morning about 6 o'clock, and
I just wanted to recognize them.
Thank you very much for giving me the opportunity to introduce
them.
Senator Metzenbaum. Thank you. Now, I am going to say to all
of the young people that you introduced — that goes up to about 21,
I guess, including your 2 sons — you are all welcome to come up
here and sit and listen during this hearing. If any of you wants to
come up, just come right on up.
There is kind of a symbolism, Mr. Oliver, in bringing the chil-
dren up, because in the last analysis, so much of what we do re-
lates to the future of their lives, and so much of what you would
be doing on the court relates to children and the kind of life we all
live. Some of us will pass on, but they have a whole future ahead
of them, and I am very glad that you are here.
Do you understand what this is? We are deciding, the seven of
us, we are going to have to decide if that man, who is related to
you, Mr. Solomon Oliver, whether or not he should be a judge. So
when he gets done speaking, I am going to have a vote. So you pay
close attention to what is said. OK? All right. And no speaking out
during the questioning. I will do the questioning, and you will do
the voting when we get done.
Mr. Oliver, do you solemnly swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Oliver. I do.
Senator Metzenbaum. Do you have an opening statement?
Mr. Oliver. No; I do not, Mr. Chairman.
questioning by senator metzenbaum
Senator Metzenbaum. You have served as a law clerk to a man
who is unquestionably one of the most distinguish ed Federal appel-
late judges this Nation has ever had and, in the opinion of this
Senator, should have been on the Supreme Court. You have also
served as an assistant U.S. attorney and as a law professor.
How have these experiences prepared you to be a Federal district
court judge?
531
TESTIMONY OF SOLOMON OLIVER, JR., CLEVELAND HEIGHTS,
OH, TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DIS-
TRICT OF OHIO
Mr. Oliver. Each one of those experiences you mentioned, Mr.
Chairman, I think has prepared me to be a Federal judge, has con-
tributed to my preparation. I think clerking for Judge William H.
Hastie, who, as you say, was a great judge — he was the first Afri-
can-American judge to sit on the Federal court — was a wonderful
experience.
Senator Metzenbaum. He was the first African-American to sit
as a Federal judge in this country's history?
Mr. Oliver. That is correct.
Senator Metzenbaum. I did not know that.
Mr. Oliver. Initially, he sat in the Virgin Islands in the terri-
torial court, but he was the first article III judge as well. He was
appointed by President Truman in 1949 to the third circuit court
of appeals. He was a man who was well trained in the law, who
had a distinguished background when he came to the court, a won-
derful temperament, and working under him, I not only learned
what clerks learn about the full range of the kinds of legal issues
that come before the court, but I think I learned how one ought to
behave and how one ought to conduct oneself from one of the top
people who served as a Federal judge. So that was a wonderful ex-
perience.
I worked in the U.S. attorney's office, and, of course, as you
know, the United States is the litigant that comes before the Fed-
eral court more often than any other. And so I got to work on a
large range of cases there. I also was
Senator Metzenbaum. Under who?
Mr. Oliver. In the U.S. attorney's office in Cleveland when
President Carter was the President of the United States, Jim Wil-
liams was the U.S. attorney in our district. I was chief of the civil
division for almost 4 years. I was chief of appellate litigation. And
being chief of appellate litigation, I was in charge of both civil and
criminal appeals that went before the sixth circuit. So I think that
experience has contributed to my knowledge of Federal cases, and
I think that has been a wonderful experience.
I also have been teaching for the last 12 years at Cleveland-Mar-
shall College of Law, and I teach courses that involve litigation in
the Federal courts. I teach a course on Federal jurisdiction. I teach
a course on Federal civil procedure and a course on child advocacy.
These are all courses, I think, which have made me very aware of
the Federal court system, the kinds of issues raised and the com-
plexities that are involved in the cases that come before the court.
Senator Metzenbaum. You indicated you have given legal advice
to disadvantaged clients on a pro bono basis and that you have
served on the board of a fair housing organization and the board
of FHC Housing Corp. which backs loans made by banks for home
repairs to persons who have poor credit.
What role, if any, do you think a judge has in ensuring that the
poor and disadvantaged have access to the legal system?
Mr. Oliver. I think the judge and the legal profession itself has
an obligation, both have an obligation to ensure the disadvantaged
have representation. But as a judge, I think that especially in the
532
criminal context, there are certain laws which require that criminal
defendants be afforded counsel. And I would try to make sure in
choosing counsel, for example, for indigents that they have com-
petent counsel. I think, though, that in our profession a judge can
set the tone by serving with other members of the bar to create a
culture where lawyers feel that it is their obligation to give to those
who cannot afford. I think we have got to do that in our profession
if the profession is to work properly.
Not all persons can afford a lawyer, and yet our legal system op-
erates on the basis of having lawyers. And so I would make it very
clear in any capacity that I would have, as a judge and otherwise,
that lawyers ought to give something back, that they ought to feel
some duty to help those who are disadvantaged.
Senator Metzenbaum. Mr. Oliver, I, just as a member of the
public and not necessarily as a Senator, have had a great concern
about the number of cases where I hear some individual commits
a heinous crime or maybe a crime of securities fraud, bank fraud,
something of the kind, well represented by counsel, winds up being
found guilty or pleads guilty, gets 1 year or 3 years or 5 years, the
sentence is suspended, and then is given 200 hours of community
service, winds up really doing very little of that. If he did, it really
did not make that much difference.
I have concluded that it is a terrible kind of justice. You only get
this kind of arrangement if you are represented by high-priced law-
yers, normally. And I am just wondering about your own reaction.
You will be dealing with some criminal cases as well as civil cases.
What do you think of this idea of so many suspended sentences?
Sometimes I read articles in the paper about some of the judges
suspending sentences, and it is revolting to me. It is repulsive.
You are going to be a judge. Give me your reaction to this treat-
ment of defendants who have either pled guilty or been found
guilty.
Mr. Oliver. Senator, I could only say that if I am appointed to
be a Federal judge, I will try to be equal in my treatment of the
defendants who come before the court, that I will try to be even-
handed in the way that I participate and rule on sentencing issues
and other issues. That is really I think all I could say, is that you
could trust that I would be fair across the board with all kinds of
defendants from all kinds of backgrounds and all kinds of cases.
That would be my aim.
Senator METZENBAUM. Would you have any difficulty applying or
enforcing precedents set by the sixth circuit even in those cases
which you disagree with the conclusion of the sixth circuit?
Mr. Oliver. I would have no difficulty. As a district judge, it
would be my duty and responsibility to apply the law as it exists,
and that law would include the laws interpreted by the sixth cir-
cuit, and so I would have no difficulty doing that, even in the face
of some disagreement personally.
Senator METZENBAUM. Congress is contemplating legislation
aimed at reducing pervasive overcrowding in Federal courts by al-
lowing Federal judges to assign some of their smaller cases to
court-appointed arbitrators. Some suggest that settling appropriate
cases early would relieve some of the docket backlog. While that
533
may be true, some litigants would prefer their day in court even
more than a favorable settlement.
I know you have served on the Civil Justice Reform Act Advisory
Group for the Northern District of Ohio since 1991, and you have
also served as a member of a panel of Federal court mediators and
arbitrators appointed by the judges of the Northern District of
Ohio.
Given your experience, what role do you think arbitration should
have in Federal court, and what role, if any, do you intend to play
in the settlement process?
Mr. Oliver. As you pointed out. Senator, I have been on the
Civil Justice Reform Act Advisory Group in the Northern District
of Ohio, and that group recommended arbitration, mediation, and
early neutral evaluation as ways to help reduce the backlog of
cases in that district. We also suggested some other things.
I think arbitration and mediation and other alternate dispute
resolution devices can be very helpful in alleviating backlog and
delay in the Federal system. I do not think it in any way could be
or should be mandatory. I think if a party decides they really want
their day in court, they should have it.
However, I think a lot of parties now are coming to realize the
benefits, with some explanation, the benefits of having these de-
vices available. If I were confirmed, appointed as a judge, I would
try to make use of those devices. As you say, I have been already
involved by volunteering my time in our district court hearing some
of those cases as a mediator, as an early neutral evaluator, to help
move along some of those cases, and they have settled. So as a
judge, I will be trying to use the lawyers who do work for free in
the Northern District of Ohio to help evaluate some of those cases
and move them along.
In terms of my role in settlement as a judge, I would try to facili-
tate it. Again, I would not strong-arm the parties, but I would meet
with them early, and I would meet with them often, and I would
try to encourage them to — try to help them do a realistic evaluation
of their case and to see if we can get a meeting of the minds. Be-
tween 90 and 95 percent of the cases in the Federal courts do set-
tle. They are settling too late in some instances. They should settle
much earlier. And I would be involved in trying to facilitate that.
Senator Metzenbaum. Thank you very much, Mr. Oliver.
Do you think that secrecy orders are sometimes overused in seal-
ing cases, particularly those involving public health and safety?
Mr. Oliver. I cannot really say whether they are overused or
not. Senator, but I would say that it is important to balance kind
of the right of citizens to know. If we are going to live in a demo-
cratic society and people are going to make informed judgments, we
are going to have to be as open as we can.
However, I do realize, based on then representing parties myself
before the court in very delicate situations, that there are some cir-
cumstances under which there is a need to seal. So I could not say
without the facts and circumstsinces whether a particular situation
would be appropriate, but I would be mindful of the need to bal-
ance the interests of the litigants in not revealing certain propri-
etary information with that of the public and their interest in
knowing and their right to know what is going on.
534
Senator Metzenbaum. Thank you very much, Mr. OUver. Now
the final decision is about to be made.
Do you think that he should become a judge?
Nathan Oliver, Jr. Yes.
Senator Metzenbaum. Yes. How do you feel?
William Leigh Oliver. I think he should be a judge.
Senator Metzenbaum. Do you think he would be a good judge?
OK.
John Oliver Gibson. Yes.
Senator Metzenbaum. Yes? OK. How is your vote?
Philip Gibson. Yes.
Senator Metzenbaum. Can't hear you.
Philip Gibson. Yes.
Senator Metzenbaum. Yes? OK. All right. [Laughter.]
Mr. Oliver. I was worried there for a moment.
Senator Metzenbaum. Now we have two more. Do you think he
will be a good judge?
Timothy Richards. Yes.
Senator Metzenbaum. OK. All right. And how about you, young
lady? Yes?
Nia Elizabeth Winfield. Yes.
Senator Metzenbaum. Well, Mr. Oliver, on the basis of these six,
you are a judge.
Mr. Oliver. I would hope that the committee would be as favor-
able, Mr. Chairman.
Senator Metzenbaum. I will report this to the other members of
the committee and to the U.S. Senate. I think it will make a big
difference in their deliberations.
Thank you very much, Mr. Oliver.
Mr. Oliver. Thank you, Mr. Chairman.
Senator Metzenbaum. With that, this committee stands ad-
journed.
[Whereupon, at 11:33 a.m., the committee was adjourned.]
[Submissions for the record follow:]
535
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATE
Conunittee on the Judiciary
Washington, DC 20510-6275
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Robert Harlan Henry
Address: List current place of residence and office address (es).
Home: 322 Northwest 15th Street
Oklahoma City, Oklahoma 73103
Office: Oklahoma City University School of Law
Office of the Dean
2501 North Blackwelder
Oklahoma City, Oklahoma 7 3106
Date and place of birth.
April 3, 1953; Shawnee, Oklahoma
Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married
Dr. Janice Loraine Ralls Henry (Maiden name: Baker)
Dentist and Instructor
University of Oklahoma College of Dentistry
Division of Community Dentistry
Native American Center of Excellence Consortium
1001 Stanton L. Young Boulevard
Oklahoma City, Oklahoma 73104
Education : List each college and law school you have attended,
including dates of attendance, degrees received, and dates degrees were
granted.
University of Oklahoma
Norman, Oklahoma
1971-1974
Bachelor of Arts (with High Honors)
May 1974
University of Oklahoma
College of Law
Norman, Oklahoma
1974-1976
Juris Doctor
December 1976
*
536
Employment Record . List (by year) all business or professional
corporations, companies, firms, or other enterprises, partnerships,
institutions and organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
June 1991 - Present
Dean and Professor of Law
Oklahoma City University School of Law
2501 North Blackwelder
Oklahoma City, Oklahoma 73106
January 1987 - June 1991
Attorney General of Oklahoma
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
October 1983 - January 1987
Partner
Henry, Henry & Henry
4419 North Bryan
Shawnee, Oklahoma 74801
May 1977 - October 1983
Associate (later Partner)
Henry, West, Sill & Combs
231 North Broadway
Shawnee, Oklahoma 74801
November 1976 - Noyember 1986
State Representative
Oklahoma House of Representatives
State Capitol Building
Oklahoma City, Oklahoma 73105
May 1976 - May 1977
Legal Intern
Henry, West & Sill
231 North Broadway
Shawnee, Oklahoma 74801
Partnerships:
June 93 - Present
Henry's Antiques
322 Northwest 15
Oklahoma City, Oklahoma 73103
Organizations:
Boy Scouts of America, Last Frontier Council, Board of Directors,
1989 - 1991
Jasmine Moran Foundation Children's Museum, Advisory Board, 1990 -
Present
537
KCSC Radio, Board of Directors, 1986-88
League of Women Voters of Oklahoma, Member, Financial Advisory
Committee, 1991 - Present
National Conference of Christians and Jews, Oklahoma City Region,
Board of Directors, 1991 - Present; currently President
Oklahoma Nature Conservancy, Board of Directors, 1991 - Present
Oklahoma Federation of Parents, Board of Directors, 1989
Oklahoma Academy for State Goals, Executive Committee, 1989 -
Present
Oklahoma University Press, Board of Visitors, 1989 - Present
Oklahoma Independent Colleges Foundation, Board of Directors, 1990 -
Present
Oklahoma Alliance against Drugs, Board Member, 1988 - 1989
REST (Project of Downtown Outreach Committee, Inc.)/ Board of
Directors, 1989 - 1990
Southwest Regional Center for Drug Free Schools and Communities,
Board Member, 1989 - 1990
St. Gregory's College (Catholic-Benedictine), Board of Directors,
1983 - Present; formerly Chair of the Board, 1986 - 1990
Western History Collection of the University of Oklahoma, Board of
Trustees, 1991 - Present
7. Military Service ; Have you had any military service? If so, give
particulars, including the dates, branch of service, rank or rate,
serial number and type of discharge received.
No
8. Honors and Awards ; List any scholarships, fellowships, honorary
degrees, and honorary society memberships that you believe would be of
interest to the Committee.
University Scholar - University of Oklahoma, 1971
United States Senate Youth Program, William Randolph Hearst Foundation
Scholar, 1971
National Winner of Elk's Leadership Award (Named by United States
Senators Ernest Hollings and Barry Goldwater) , 1971
Legislator of the Year - Oklahoma Trial Lawyers Association, 1979
Distinguished Service Citation - Oklahoma Baptist University Alumni
Association, 1982
Appreciation of Sincere Efforts for Promotion of Pakistan-American
Friendship - Pakistan Student Association, University of Oklahoma,
1983
National Black Caucus of State Legislators and Oklahoma Legislative
Black Caucus A. C. Hamlin Award, 1984
Outstanding Young Men of America, 1986
Annual Human Rights Award - Oklahoma Human Rights Commission, 1988
Outstanding Assistance - Oklahoma Chapter of International Association
of Arson Investigators, 1988
Outstanding Comrounication and Leadership - Toastmasters, International,
1988
Certificate of Appreciation - Oklahoma Crime Victims Compensation
Board, 1988
Three Outstanding Young Oklahomans - Oklahoma Jaycees, 1988
Outstanding Young Men of America, 1989
538
Recognition and Appreciation for Service - Asian-American Leadership
Conference/Asia Society of Oklahoma, 1990
Certificate of Appreciation - Association of Oklahoma Narcotics
Enforcers, 1990
Conservationist of the Year - Oklahoma Wildlife Federation, 1990
Oklahoma Indian Bar Association Award ("For Outstanding Service to the
Profession and for Improving Relations Among the Tribes and the
State"), 1991
Participant, United States Department of Justice, Federal Bureau of
Investigation, "Addressing Violent Crime Through Community
Involvement," October 15-18, 1991
Farmers Union Award, 1991
Phi Beta Kappa - Alumni membership for leadership in the study of the
constitution of the state, 1993
Oklahoma City Chapter of Hadassah - Myrtle Wreath Award: Contribution
Towards the Betterment of the World in Humanitarianism, 1993
Bar Associations ; List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of any offices which you have held in such
groups.
Oklahoma Bar Association, 1977 - Present
Uniform Laws Committee, 1988 - Present
American Bar Association, 1991 - Present
National Conference of Commissioners on Uniform State Laws Commissioner
for Oklahoma, 1982 - Present
"Victims of Crime" Drafting Committee, 1989 - Present
"Civil Forfeitures" Drafting Committee, 1991 - Present
Study Committee on the Uniform Rules of Evidence, 1993 -
Present
Oklahoma County Bar Association, 1992 - Present
Oklahoma Fellow of the American Bar Foundation, June 1992 - Present
American Inns of Court, William J. Holloway, Jr. Inn, Master, Appointed
by Federal District Judge Layne Phillips, 1989 - Present
Oklahoma Trial Lawyers Association, 1993 - Present
National Association of Attorneys General, 1987 - 1991
Supreme Court Committee: Member, 1988-1991; Chair, 1991
State Supreme Court Project Advisory Committee: Member, 1988 -
1989
State Constitutional Law Advisory Committee: Member, 1989-1991;
Chair, 1990-1991
Agriculture and Rural Legal Affairs Committee: Chair, 1988 - 1990
Civil Rights Committee: Vice Chair, 1990-1991
Phi Delta Phi, 1977
Civil Justice Reform Act Advisory Group, United States District Court,
Western District of Oklahoma, appointed by Chief Judge Ralph
Thompson, 1993 to Present
American Bar Association: United States Office of Personnel
Management Administrative Law Judge (ALJ) Interview Panel, 1993
Oklahoma Criminal Justice Center Board, 1981 - 1983
Supreme Court of Oklahoma Appellate Judicial Conference; Presentation,
1988
Chairman, Oklahoma Constitution Revision Study Commission, appointed
by Governor Henry Bellmon, 1988-1992
539
Sovereignty Symposium (Native American Legal Symposium sponsored by the
Supreme Court of Oklahoma); Presentations, 1988, 1989, and 1990;
Moderator, 1991
10. Other Memberships ; List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other
organizations to which you belong.
The following organizations to which I belong occasionally make
legislative recommendations:
Oklahoma Academy for State Goals
League of Women Voters (Advisory Member)
American Bar Association
Oklahoma Bar Association
For other organizations, please see question #6:
11. Court Admission ; List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse of membership. Give
the same information for administrative bodies which require special
admission to practice.
United States Supreme Court
January 12, 1987
United States Court of Appeals for the Tenth Circuit
December 22, 1986
United States District Court for the Eastern District of Oklahoma
March 20, 1987
United states District Court for the Western District of Oklahoma
October 27, 1993
Oklahoma Supreme Court and all Courts in Oklahoma
April 22, 1977
12. Published Writings ; List the titles, publishers, and dates of books,
articles, reports, or other published material you have written or
edited. Please supply one copy of all published material not readily
available to the Committee. Also, please supply a copy of all speeches
by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily
available to you, please supply them.
PUBLICATIONS:
"The Oklahoma Powers of Appointment Act of 1977." Rarick, J., Henry,
R. , Oklahoma Law Review . Vol. 32, pp. 787-811. (See Attachment 12 I.)
"The Oklahoma Constitutional Revision Commission: A Call to Arms or
the Sounding of Retreat?" Henry, R. , Oklahoma Citv University Law
Review, Vol. 17(1), Spring 1992, pp. 177-199. (See Attachment 12 II.)
540
"The Constitution of the State of Oklahoma: Recommendation for
Revision" (Report of the Oklahoma Constitution Revision Study
Commission, Robert H. Henry, Chairman) , Oklahoma Citv University Law
Review . Fall 1991, Volume 16(3).
"Nations Within A Nation," Oklahoma Today . May-June, 1992, p. 35. (See
Attachment 12 III.)
The Office of Attorney General; Powers and Duties . Ross, Lynne,
Editor. National Association of Attorneys General, 1988. Henry,
Robert H., et al.. Editorial Board.
Life and Times of Henry Bellmon . Bellmon, Henry, Council Oak
Publishing Co., Inc., 1992. Preface by Robert H. Henry.
Oklahoma Business Organizations; Formation and Representation .
Faught, Irving L. , Aspen Publishers, 1990. Preface by Robert H. Henry.
(See Attachment 12 IV.)
Oklahoma Government; Politics, and Policies . Morgan, David, et al..
University of Nebraska Press, 1990. Foreword by Robert H. Henry. (See
Attachment 12 V.)
"A Black Hat for the Lone Ranger? The Attorney General as Defender of
Tort Claims," The Journal of State Government . May-June, 1988, p. 112.
(See Attachment 12 VI.)
"Constitutional Convention Gains Support as One Answer to Economic
Stagnation," Oklahoma Business . January, 1987, p. 27.
"Little Giant: A Tale of Quiet Nobility," Book Review in The
Chronicles of Oklahoma . Volume LXIX, Number One, Spring 1991.
Then to the Rock Let Me Fly: Luther Bohanon and Judicial Activism .
Weaver, Jace, University of Oklahoma Press, 1993. Foreword by Robert
H. Henry.
SPEECHES;
Most of my speeches were delivered from notes which I did not retain.
Those that I have texts for are attached.
13. Health ; What is the present state of your health? List the date of
your last physical examination.
Excellent
October 1993
14. Judicial Office : State (chronologically) any judicial offices you have
held, whether such position was elected or appointed, and a description
of the jurisdiction of each such court.
Not applicable
/
541
15. Citations ; If you are or have been a judge, provide: (1) citations for
the ten most significant opinions you have written; (2) a short summary
of and citations for all appellate opinions where your decisions were
reversed or where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulingson such opinions.
If any of the opinions listed were not officially reported, please
provide copies of these opinions.
Not applicable
16. Public Office ; State (chronologically) any public offices you have
held, other than judicial offices, including the terms of service and
whether such positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for elective public
office.
State Representative, State of Oklahoma, 1976-1986 (5 terms, last four
reelected without opposition)
Attorney General of Oklahoma, 1987-1991 (reelected without opposition,
resigned to become Dean and Professor of Law, Oklahoma City University
School of Law)
17. Legal Career ;
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the name of
the judge, the court, and the dates of the period you were a
clerk;
Not applicable
2. whether you practiced alone, and if so, the addresses and
dates;
Not applicable
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
May 1976 - May 1977
Legal Intern
Henry, West & Sill
231 North Broadway
Shawnee, Oklahoma 74801
542
November 1976 - N ovember 1986
State Representative
Oklahoma House of Representatives
State Capitol Building
Oklahoma City, Oklahoma 73105
May 1977 - October 1983
Associate (later Partner)
Henry, West, Sill & Combs
231 North Broadway
Shawnee, Oklahoma 74801
October 1983 - January 1987
Partner
Henry, Henry S Henry
44 09 North Bryan
Shawnee, Oklahoma 74801
January 1987 - June 1991
Attorney General of Oklahoma
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
June 1991 - Present
Dean and Professor of Law
Oklahoma City University School of Law
2501 North Blackwelder
Oklahoma City, Oklahoma 73106
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has
changed over the years?
1976 - 1986
In the summer of 1976 I was elected to serve in the state
legislature. I entered the Oklahoma House of Representatives
in January of 1977. In May of 1977, I began law practice with
Henry, West & Sill, a small-town general practice law firm
where I had interned. (Legislative service is "part-time" in
Oklahoma; the legislature usually convenes in January and
adjourns in May.)
My law practice was very general and varied, ranging from
probate practice to family law to criminal law. I handled
juvenile matters, corporate organization, real estate and title
opinions. I represented victims and defendants in criminal
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matters and, in general, engaged in a very broad legal practice
customary in small towns. My representation of clients
included numerous appearances in courts in trials mostly non-
jury.
1987 - 1991
As Attorney General of Oklahoma, a state constitutional
officer, I represented the State of Oklahoma in both civil and
criminal matters. In addition to involvement in and
responsibility for administration of 50 attorneys and 40
support personnel, I was directly involved in the management
and oversight of some 5,500 criminal cases and 5,500 civil
cases. I issued some 209 formal opinions of the Office of
Attorney General. I proposed and drafted legislation. I
worked closely with numerous state district attorneys. United
States Attorneys, and other state, federal and local
enforcement agencies. I argued before federal and state
administrative agencies, testified twice before a United States
Senate Sub-committee, reviewed and drafted appellate briefs
filed in federal and state courts, and appeared as co-counsel
in cases before the United States Supreme Court and the United
States Court of Appeals for the Tenth Circuit.
Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
In private practice my clients included farmers, teachers,
business persons, and firms. I worked for several charitable
concerns, several banks, and several small businesses. I
specialized in probate and family law.
As Attorney General my clients included ratepayers (in utility
regulation cases) , citizens of the State of Oklahoma and state
agencies. I concentrated on reorganizing the state's law firm
and expanding the Attorney General's statutory powers into
utility and insurance rate cases (in order that the Attorney
General could appear as an intervener for the ratepayers) ; in
collection of student loans; in Medicaid fraud; and in drug
abuse. I specialized to some extent in Indian law. I also
initiated the first state-federal white collar felony trial in
recent years. My office handled numerous other cases in the
federal courts.
As Dean of the School of Law at Oklahoma City University my
primary tasks have been administration and teaching. However,
I have on a pro bono basis consulted with the Oklahoma County
Public Defender and several not-for-profit entities. I have
also lectured or spoken at continuing legal education seminars
specifically in the areas of openness in government ("Sunshine"
Laws) and ethics. I have taught or lectured in Legislation,
Administrative Law, and Jurisprudence.
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Did you appear in court frequently, occasionally, or not at
all? If the frequency of your appearance in court varied,
describe each such variance, giving dates.
I appeared in court fairly frecjuently from 1977 until 1985. As
legislative duties (including serving as Chair of the House
Judiciary Committee and as Commissioner for Oklahoma to the
National Conference of Commissioners on Uniform State Laws)
increased, my court appearances became less frequent.
As Attorney General I have appeared before several courts and
numerous state regulatory agencies. I monitored court
proceedings in numerous other criminal and civil cases in which
the Office of Attorney General was involved. In federal court
my office handled hundreds of cases including 42 U.S.C. S 1983
cases, federal Habeas Corpus matters, and capital litigation.
While Dean of the Oklahoma City University School of Law I have
made only a few court appearances.
What percentage of these appearances was in:
(a) federal courts;
15 percent
(b) state courts of record;
75 percent
(c) other courts.
10 percent
What percentage of your litigation was:
(a) civil;
90 percent
(b) criminal.
10 percent
State the number of cases in courts of record you tried to
verdict or judgment (rather than settled) , indicating whether
you were sole counsel, chief counsel, or associate counsel.
Total Private Practice (estimate) 80 cases
Sole counsel 50 cases
Chief counsel 15 cases
Associate counsel 15 cases
10
I
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As Attorney General I have been directly involved in the
oversight and management of thousands of cases. I have
personally been involved with making prosecutorial decisions in
many of the criminal matters, as well as litigative decisions
in many civil cases. (See Attachment 17 c 4.)
5. What percentage of these trials was:
(a) jury;
10 percent
(b) non-jury.
90 percent
18. Litigation ; Describe the ten most significant litigated matters you
personally handled. Give the citations, if the cases were reported,
and the docket number and date if unreported. Give a capsule summary
of the substance of each case. Identify the party or parties whom you
represented; describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-
counsel and of principal counsel for each of the other parties.
(1) United States of America v. Elvin Leon Hibbs. Jefferson B.
Kinney. Jr.
CR 89-8
Substance of Case:
On January 11, 1989, a federal grand jury in the Western District of
Oklahoma returned a forty-two count indictment against defendant Elvin
Leon Hibbs. Jefferson B. Kinney, Jr. was named as a codefendant and was
charged in Count 42. The initial forty-one counts in the indictment
charged mail fraud, in violation of Title 18 U.S.C. 1341. The forty-
second count alleged that the defendant and Kinney conspired to commit
mail fraud in violation of 18 U.S.C. 371.
The defendant entered pleas of not guilty to each count of the indictment
on January 17, 1989. On a motion by the government, the court dismissed
Counts 16, 35 and 37 of the indictment, with prejudice, on June 12, 1989.
This was the first cooperative federal/state white collar prosecution in
Oklahoma in modern times. Defendants, one of whom was a state college
president, were charged with defrauding the state of Oklahoma, through
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a scheme to convert public money to personal use. The case began with
a state investigation which involved evidence of violations of both state
and federal law. In order to invoke the investigative power of the FBI
and the federal grand jury process, the United States Attorney and I
determined to proceed on the federal charges. With the permission of the
United states Attorney, I cross-designated two of my lawyers as Assistant
U. S. Attorneys, who cooperated fully with the federal government and
participated in all aspects of the case. Under the Oklahoma
Constitution's prohibition against "dual office holding" I, as Attorney
General, could not be cross-designated. The resulting case allowed the
state and federal government to proceed in trying a most difficult matter
and laying the foundation for future joint effort.
Party Represented:
My staff represented the state of Oklahoma's interest as well as that of
the United States. Chief co-counsel was Ms. Arlene Joplin, Esg.,
Assistant United States Attorney.
Nature of Participation:
Evaluated investigation by the State Auditor and Inspector, arranged for
cross-designation of senior staff, evaluated evidence presented before
federal grand jury, devised strategy, participated in all prosecutorial
decisions, and attended portions of trial.
Disposition of case:
Jury trial began on June 12, 1989, and continued through July 7, 1989,
when the jury found the defendant Elvin Leon Hibbs guilty on each of the
remaining counts in the indictment. On July 21, 1989, defendant
Jefferson B. Kinney, Jr., entered a plea of guilty to a superceding
information which charged misprision of a felony.
Date of Trial:
June 12-July 7, 1989
Court :
United States District Court, Western District of Oklahoma
Judge :
Honorable Ralph G. Thompson, Chief Judge
United States District Court
200 Northwest 4th
Oklahoma City, Oklahoma 73102
(405) 231-5153
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Co-counsel:
Chief Trial Counsel: Arlene Joplin
United States Attorneys Office
200 Northwest 4th, Room 4434
Oklahoma City, Oklahoma 73102
(405) 231-5281
Susan Stewart Dickerson, Cross-designated
Special Assistant United States Attorney
(Also Oklahoma Assistant Attorney General)
United States Attorneys Office
200 Northwest 4th, Room 4434
Oklahoma City, Oklahoma 73102
(405) 231-5281
Charles M. McLoughlin, Cross-designated
Special Assistant United States Attorney
(Also Oklahoma Assistant Attorney General)
United States Attorneys Office
3 33 West 4th Street
3900 U. S. Courthouse
Tulsa, Oklahoma 74103
(918) 581-7463
Counsel for Other Parties:
D . C . Thomas
201 Robert S. Kerr Avenue, Suite 504
Oklahoma City, Oklahoma 73102
(405) 235-4300
(2) In the Matter of the Workers ' Compensation Rate Filing by the
National Council on Compensation Insurance
Filing No. 87-2318
Substance of Case:
Workers' compensation carriers sought an increase of 33.8% in rates
charged to Oklahoma businesses in an application filed before the State
Board for Property and Casualty Rates. I, as Attorney General,
intervened on behalf of ratepayers pursuant to gubernatorial request,
necessary under Oklahoma law to authorize the Attorney General to protect
the collective interests of insurance consumers of the state in rate
proceedings before the Board.
Party Represented:
Citizens and ratepayers of Oklahoma pursuant to request by the G 
