Hon. Milton L. Schwartz

Miller: This is Andrea Miller and it is Friday May 11th. We are in the chambers of Milton L. Schwartz. Dick Nichols is here. Mr. Nichols and I are going to interview Judge Schwartz to prepare his oral history for the Eastern District of California Historical Society archives. Dick would you like to start?

Nichols: I would like to start. Judge would you give us briefly your family background.

Judge: Going back how far?

Nichols: Parents. Grandparents. And going back beyond that if you know it and you think it would be of interest.

Judge: I have virtually no real material on my father’s forebears. My paternal grandfather died before I was born so I really don’t have any connection personally with him except things that I’ve heard and they’re not very detailed. Maternal grandparents I know a lot about because I was raised with them and my mother and so that’s easy.

I also did a big history on my maternal grandfather who came over here from Germany and settled in Cincinnati for a short time and then came out to Sacramento in 1854 and was very young and came out to join an uncle whom he had heard of and he wanted to settle here and so he simply went to work for his uncle and then shortly after that got the idea to start an exclusively “shoe” store. There were no such things as exclusively shoe stores – you bought shoes in the general haberdashery and he felt that this was a need for this. I should say there were none west of the Mississippi.

Miller: Could I interrupt you for a second and ask you to state what his full name was.

Judge: My grandfather was Gustave Lavenson. That is created by his family because the name was something like Layvesohn which was very hard to pronounce. And so each brother that came out here, who would be my grandfather’s forebears, took a different name. They anglicized it in a different way. And so Lavenson is really a made up name that would adapt or be adaptable here.

And he started his shoe store at 5th and J Streets, just a block from here, in 1877, consisting of himself and a cobbler. And they made shoes to a certain extent. They certainly did a huge amount of repairing and reconditioning. And then my grandfather just started selling and became a merchant.

My grandmother did not come over from Germany. She was born here but here parents came from Germany also. And, I think, she started out in Portland with her family and exactly where she met my grandfather I can’t remember. But they were married early – they were married shortly after the shoe store was started in 1877.

Miller: Do you remember her maiden name?

Judge: Her maiden name was Goldman. Flora Goldman. And she had two brothers who were here in the United States in Portland and neither of them ever had any children. They were both married for a long time and we became very close with them because when some of your close relatives have no children they adopt you and they spoil you terribly.

My grandfather did very well. He was one of the founders of the Sutter Club. One of the 4 or 5 people who started the Sutter Club. And also one of the founders of the Del Paso Country Club. And in those days he did a lot of things. His great fame came during the strike in 1900. It was a huge railroad strike. And it really raised all kinds of problems here in town and all of the merchants in town boycotted the Sacramento Bee because they were a liberal newspaper and they took the side of the labor and not management. And My grandfather said I am on the side of management but C.K. McClatchy, the first, is my dear friend, and we are neighbors and I will never boycott the Bee. And so the result of that was that C.K. McClatchy, when the strike was ended, said you will never pay a dime for advertising in the Sacramento Bee as long as you live and we never did until my grandfather died.

C.K. McClatchy was the second McClatchy. James McClatchy started the Bee, and then his two sons were C.K. the First and V.S. and they did not get along well after James McClatchy died. And I remember how exciting it was because each did a secret bid to buy out the other and the person who submitted the higher bid would become the owner of the newspaper. And C.K. bid higher, he was the younger brother. V.S. then raised that other side of the McClatchy family with was McClatchy Realty and various places. [Text omitted.]

And so I grew up in the shadow of C.K. McClatchy. My grandfather, in the meantime, was prospering in the shoe business. And then he entered into some kind of huge undertaking with about 10 or 11 other men in town and they bought a huge amount of property down the river which is called the Fair Ranch. And that’s where he made his real money. I mean that was enormously successful. And I can’t remember exactly where it was but it was somewhere Southeast of Sacramento, of the main part of town. And that’s what he did, he was one of the pioneers of the retail business in Sacramento. He was the one in shoes and in those days when you opened any kind of business in clothes you got exclusives from the manufacturer’s wholesaler. You entered into contracts where they would not sell to any other competing merchant. Probably all horribly anti-trust. And so he moved the shoe store from 5th and J, and then the center of town looked like to was going to be K street, so he moved to 7th and K and he owned that building until I think it was 1929 and the town kept moving east and so he moved finally to the last location which was on K Street between 10th and 11th right across the street from the Crest Theater. That’s where he died.

So my mother . . . he and my grandmother Flora had two children – both girls – and one was, her married name was Cannon, and her husband started the Cannon Brick Company which he operated until he died. And my mother never remarried and my father died – I’m jumping around now. My father’s name was Colman, no E and no middle name, and he, my father, died when I was only 8 months old and so I don’t remember him. I was the youngest of 3 children. I have an older brother who is 5 years older and he remembers my father and he was Colman also. Named after my father. And my sister, who is now deceased, was in between in age and she barely remembered my father. I’m the only one that obviously has no recollection.

And my mother was very active in a million things. She wrote a guest column weekly for the Sacramento Union on style and fashion and these kinds of things. And she as active in almost everything. She was a charter member in the Sacramento Riding Club and she grew up riding here in downtown Sacramento as a girl. And she got involved in all sorts of charitable and social activities. And then when the depression hit, when the crash hit, in 1929 she decided that if we were going to save the shoe store and the business she was going to have to do it. And so she got rid of all the top level people in the shoe store and gave them 90 days to raise the money to buy out her stock. And of course they couldn’t raise it-in those days you couldn’t raise anything. So out they went and she started over again in 1933 and became the president of the shoe store.

Miller: At some point then she had absentee managers who were not family members – of the store.

Judge: My grandfather made probably the only serious business mistake I can remember and that was that he would give stock, that is give it to them and not make them buy it, to the three oldest and what he believed to be the best of his employees so he incorporated. Downey Brand and Seymour incorporated him. He gave them the stock but the aggregate of it still did not rise even to 49 percent. And so my grandmother inherited the controlling stock. But he felt that the three men he gave the stock to would never leave and open their own railroad because this was just too good a deal, they had a built in ownership and it was a built up business already and that he would never lose. And, it’s odd what money does, but when everybody took a terrible hit the men continued to draw their salaries but they told my grandmother that because she wasn’t working there she simply couldn’t draw a salary because there was no money and, of course, there were no dividends, so all of sudden she had no income from the store, the business, which was the principal asset. And so I can remember the night – I was 13 years old – when the annual meeting took place at my home, our home, and my mother dropped this bomb on the three senior men and said you’ve got 90 days to raise the money we’re going to settle on as the price and you get it up by then or you’re gone. And they were shouting and they were absolutely taken by surprise. It was something else. We were listening from our bedrooms upstairs and it was very exciting.

And so she took it over. And she learned. There was one of the three that she fired – of course she had my grandmother’s proxy for everything – and the one she thought was the least [text omitted] objectionable [ text omitted]. And she said I’m going to keep Mr. Marsh if he wants to stay and I’ll pay him $150 a month. Mr. Marsh was drawing $650 a month which was a lot of money in those days, in the depths of the depression too. And he allowed as he could live on $150 a month. So she kept him and he did a [text omitted] good job [text omitted] until he eventually passed away.

The other two were [text omitted] embittered [text omitted]. They remained here in town and made enough money I guess running the store in the good years so that they were able to retire [text omitted].

[Text omitted.] My mother hired an outside manager when Mr. Marsh died – I think early during World War II. [Text omitted] And then, of course, at the start of World War II everybody [began to prosper]. And particularly necessaries because shoes were rationed. You got points and coupons and you saved them and that sort of thing but they needed the shoes for our boys overseas and that sort of thing. And my mother did extremely well during the War and kept the business going and it kept growing.

And my mother expected one of her sons, either Colman or I, to – I never can remember whether I should say Colman or me in that context. I, early on, decided somehow I wanted to be a lawyer. You don’t know why but you just say my father was a lawyer and I want to be a lawyer even though I don’t remember. And my brother Colman started out wanting to be a lawyer but then he changed his mind and the result of that was that at the end of World War II when we both came home, I was discharged from the military in 1946, he decided to go into the shoe business with my mother. And I went to law school and it was kind of the reverse of what we had always planned to do.

Miller: Let me interrupt you for a moment. You said your father was a lawyer. Was he employed by Downey Brand?

Judge: No.

Miller: What did he do?

Judge: He was . . . he only practiced 5 or 6 years before he died and he was with a two person law firm in San Francisco. He used to take the ferry – he lived when I was born in or near Lake Merritt in Oakland and my mother was raising the three of us kids and I was only a tiny baby when my father was diagnosed with cancer and they knew it was hopeless. And so she brought the 3 of us to Sacramento to stay with my grandmother and grandfather. Then she went back down and lived there near the hospital for six months until he died.

He didn’t really have time to develop a good practice, but he loved it and he had one partner who wrote the most beautiful letter – I guess it’s because it’s your own father – to my mother about what he was and about what kind of a person he was. I’ve met one or two people that remembered him. One was a lawyer named Lawrence Livingston who was a very able lawyer. A miserable, means person but a very good lawyer. And I met him at a wedding or an engagement party and somehow got to talking to him and told him that I was in law school. And when he found out he said “You are Colie Schwartz’s son?” and I said “Yes.” And he said “He was one of the sweetest and funniest and most clever people I’ve ever known,” and he said “You want a job for the summer?” and I said “I certainly do,” and he said “I can certainly give his son a job” and that’s how I got my summer job in 1947 in San Francisco. I took the key route across the bay and worked for $100 a month and was broke but I learned a lot and learned a lot of things not to do.

My father’s history doesn’t really – he did have tuberculosis and they sent him over to Hawaii for a time and that sort of thing and he was there 4 years working for an older brother of his in Hawaii until he recovered. And so he got behind on his legal career. I wish I could give you the figures, but my mother lied so outrageously about her age and so that it became absolutely impossible I once established, had to establish, a birth certificate. In those days a lot of people didn’t have a birth certificate because they were born at home and didn’t get around to getting them. And so my mother was going to go on a trip and she needed a birth certificate of her predeceased husband and she asked me if I could get one. You could get them by a combination of things. One of the things was by documents – affidavits of people who were alive at the time my father was born and were able to attest to the fact that they knew he was born, and so forth. And so I got my uncle, who was still alive and was my father’s older brother, I got a certificate from him. And then I got my father’s marriage license and my-both marriage license and the dates of birth of his three children. The end result was that my mother’s name, of course, appears on all of those documents. And they exist between 1914, which was the date of my mother and father’s marriage, my brother’s birth certificate which was 1920, and my birth certificate which was, I mean by brother’s birth certificate was 1915 and mine was 1920, so my mother’s age shows on all three of those documents between 1914 and 1920 and her age varies by as much as 10 years between each one. Even then she was lying about her age violently in 1914. But I finally established shortly, not too long before she died, and I said to her one day, “Mother, I think you know that I know how old you really are,” and she said “Yes, and it makes me sick.” “Well, we’re very proud of you and your three children would like to have a party for your upcoming birthday,” which was her 90th, “and we’d like to have it at a place where you like to go,” which was the Del Paso Country Club. And she said “I don’t want any party.” And she was just absolutely adamant. And she got pretty rough herself.

Miller: Well, you should have had a 70th birthday party and she would have loved it, when she was 90.

Judge: That’s right. So she called the next day and said “You know, I was not very gracious when I talked to you on the phone and I do appreciate your thought. But you don’t seem to understand.” And she said, “I play bridge three times a week, duplicate bridge, and we play for blood because you’re playing for master points. And most of the men that you play with are meaner than you can imagine. And they call you down for anything. And if they had any reason to believe or to suspect that they were playing with a nonagenarian I would never have a partner and I would never get to play.” And I said “How old do you think they think you are?” And she said “They think I’m in my late 60’s.” And she could have easily have passed for late 60’s. She was an incredible, incredible woman. And so she allowed that we could have a very close party with only the immediate family and children and grandchildren, but no party because – I don’t know how she thought people wouldn’t know. She grew up here. She was born in Sacramento and lived her all her life except for the 6 years that she was in Oakland. I don’t know how she thought she was fooling anybody but she certainly did.

Miller: How long did she live?

Judge: She lived until she was 91. Which is a very, very common death if you open the death notices. I have a feeling that you can hang on and fight no matter how young you really are until you hit that 90th. But on her 90th they took her driver’s license away. And the ridiculous thing was that she was always a terrible driver and was no worse at 90 than she was at 30. But she couldn’t pass the examination. She could still do the written. But she got very nervous when she was doing the driver training. And then quietly and secretly she started taking driving lessons at 89 and went and was turned down again on the driving test and so she finally gave up, and that broker her back because of the inability to be absolutely independent. And she had to stop riding horseback at 88. They said it was too injurious and she was pretty frail and that kind of stuff. And I think there are just a lot of people that after they hit 90 it just has a psychological effect because it’s amazing how many people you see that are 91 in the obits as opposed to any other age around that time.

Miller: It sounds as if she stayed amazingly active.

Judge: She did.

Nichols: Now, whatever happened to the shoe company?

Judge: The shoe store, they would never sell the real property for some reason, the family that owned the property. And after the War things changed. You couldn’t have developed lines of shoes – we grew up with a number of lines of shoes and nobody else in the Sacramento could get them and so you didn’t have any competition and you built. Those people came from Redding and all over on the Fall sale and that kind of stuff but after World War II everything changed and a lot of people moved up here from San Francisco and, you know, manufacturers said these are people that are long term customers of ours just like you and we can think of no reason for legitimately denying them the right to bring those same shoes here to Sacramento, and that sort of thing. And of course she announced that they were disloyal and various kinds of things that people do when you get mad. But then the owner of the real property, almost the same time, right after the end of WW II said we’re not going to renew your lease. Well, she’d had that lease since 1929 and she said things like I’ve never missed a payment, not even been late one day, and all that kind of stuff, but they wanted the new thought was now fast, big turnover, and then the landlord would get a percentage and go on a percentage lease. And they recognized that they could do better. And so she found she was without a shoe store in 1947 and had about 6 months to close it down. And she wasn’t going to give up, so she and my brother decided that the town always moved to the East and so they optioned a piece of property up on 14th and K figuring it was all going to continue to grow. Well, it didn’t. It all stopped going to the East. And you couldn’t get a lease, a flat lease, it was all cost plus kinds of things because they didn’t know what they’d have to put in it and everything was churning. So, she reached a point where she knew the costs were going to be prohibitive. And she said “We can’t make it,” and they said “We won’t let you out,” and she said “I’m going out whether you let me or not.” And that was a tough time, but they settled the lawsuit so that she could buy her way out and it was a very difficult thing. But she closed the store in late 1947 and just liquidated and sold the merchandise out and that was the end to it. But it was tough on her.

Miller: It probably wasn’t too easy for Colman either. Just having started his career.

Judge: Right.

Miller: What did he end up doing?

Judge: He ended up going to – well it’s still actually in business named Dolan’s building material. And I forget how he got the job – interviewed for it – and they hired him as an accounting manager and that sort of thing. And then they began to grow and they opened a wholly owned subsidiary called Norco Distributing Company and they sent him out there to be general manager of that. And he was doing fine until . . .

Judge: My brother Colman, after he went with Norco – Dolan’s and then Norco – then an odd, very strange thing happened. His mother-in- law, a widow, was a half owner of – what’s the name – of the Palm Iron Works. Mr. Palm and Mr. Reese, who was Colman’s father-in- law, started Palm Iron way back, way back. And Palm had no children or grandchildren or close relatives. And he and Reese were 50-50 owners of Palm, and when he died he didn’t have anyone to leave his stock to and so he staggered everybody by leaving it to his former partner’s widow, who was Colman’s mother- in-law. So all of a sudden she became the sole owner of Palm Iron instead of a half-owner – a non-speaking half-owner. And so then she said I’m going to need some real help. And so she brought her two sons-in-law into Palm Iron. The other son-in-law had been in there for quite a while before because he was an architect and he was interested in the business and so he started in with the quite some time ago, working there. But then when it became solely owned she wanted her other son-in-law in there too, to help, and so Colman resigned from Norco and went over with Palm. And they, Palm, had a very illustrious career until a few years ago when they had a terrible lawsuit with Wells Fargo Bank, and it was awful, and the end result was they ended going out of business after 108 years. I mean it was a tough time – times were tough.

Nichols: That was in the nature of a lender liability situation, the law suit?

Judge: The law suit was that the bank, without any warning, cut off their – they had something like a $300,000 line of credit that had existed forever, and they’d never missed a payment, never gone over, never did anything and they just, without any warning, cut them out. And it was just staggering. And they weren’t able to function, so they filed their lawsuit against Wells Fargo and that was a tough law suit and ultimately they ended up settling it well enough so that Colman and his brother-in-law were able to – well they’d pretty well retired by that time anyway because that was back in the mid-80’s, no, no later than that, 90’s a guess. It was not that long ago. But . . .

Miller: Well, that’s about when all the ugliness with the banks . . .

Judge: Oh, it was terrible. They, they just cut off credit when there was no reason to. They never could figure out why. They figured apparently it was a risky time, and the steel business was in trouble because there were Japanese competition coming over, and things were changing and they didn’t want to run the risks. But boy they were tough.

Miller: So the business just disappeared then. That was the end of Palm.

Judge: The business just disappeared. They just liquidated and that was it. So there were really two – coming up on both sides of the family, old, old mercantile businesses that – and those were the things in those days. Most of the friends that I grew up with were sons of people who started local, home owned businesses. Shorrock Hardware. Hart’s Restaurant. Elkus’s was the best men’s clothing store in town. These were all local businesses. Weinstock-Lubin was a local store. And my grandfather was a very good friend of Sy Lubin and these people. And it was tough to give up that because you had all these things and all of these local businesses – Sim’s Hardware. Gosh, I can go all up and down K and J Street where peopled by sons of – and most of the sons came back from World War II and went back into business with their fathers.

Miller: Or their mothers, as the case may be.

Judge: The mothers – you bet. And then all those businesses, none of them survived. Not one. Crocker, H.S. Crocker Co. was there then although the main headquarters became after that San Francisco. What was that – Sleeper’s Stamp and Stationary Co. on J Street. One by one, one of the few guys that hung on and hung on and hung on, and actually turned it over to his daughter, was Fred Carnie. Fred Carnie and Sons was on J Street and it was awnings and tents and good yard furniture and that kind of stuff. And Fred Carnie continued as the owner, but his daughter was taking over, kind of, and they he just sort of gave up about 5 years ago and said I can’t fight – everything is different now and you can’t expect to hold on to your old customers because people can get things in a different way and so much cheaper, and it’s just a new world. But it was awful tough that every one of those places – Carmel Shorrock, do you remember her? She worked here, Judge MacBride put her on here. She was married to Dick Shorrock, the younger brother, and she’s a really nice, nice person. So Dick Shorrock and Bob Shorrock were in business together in Shorrock Hardware and that folded, or gave up, or sold out or whatever. They don’t even keep the name. There’s no identify. And so they probably just closed up. So it was terrible.

Nichols: Let me ask you about something. Unfortunately the idea of oral histories didn’t germinate around here early enough to take one from Judge MacBride. But I have a recollection that Judge MacBride and bankruptcy Judge Bryte Peterson had some kind of mercantile relationship in their family histories. Do you have any – there was a candy company of some kind? Does that ring any kind of a bell.

Judge: The only one I’m familiar with was Keating Candy Company which I know about because they lived next door to Barbara’s family back in the 30’s. Uh, MacBride came from a not well-to-do family. He struggled. MacBride worked very hard. He was very popular, he had a very good personality, and he worked hard and he was President of everything, you know. President of his class at Berkeley. He was in every single thing, and he just fought his way up, and people went out of their way to help him. My only knowledge of the contact between him and Bryte Peterson was that MacBride treated the court like his family [text omitted]. But he felt very – like Carmel he felt sorry for because he knew her, knew the family, and so he gave her a job here as Controller. And he gave Barbara – the Jury Commissioner – it was either Barbara Macaulay, no I don’t think it was, it was Doug Kennedy’s wife -Barbara . . .

Nichols: Yeah, Barbara Kennedy.

Judge: And he liked them and they were good friends, so he brought her in.

Nichols: His bailiff in the early days was Morv Nevis.

Judge: Morv, yes. First time – he and Bryte Peterson knew each other well and they both went to UC Berkeley Boalt, they were both at Boalt at the same time, and they were both at college at the same time. [Text omitted.]

Nichols: Well, I apparently got us off onto a, an unanticipated track.

Judge: That’s the trouble. But I will tell you this before I quit on Bryte. Bryte then, after he started working and going – and teaching at McGeorge, Tom then appointed him as the bankruptcy referee and that was the only connection I knew between them, other than they’d been classmates and schoolmates and that kind of stuff. But he was a very kind, Tom could be very kind and very nice.

Nichols: Well, I – to the extent you have knowledge about Judge MacBride from his pre-Judge days, that would be interesting to hear about.

Miller: But before you did that, let’s take you back further. And tell us where you lived as a child in Sacramento. What was your neighborhood and what was going on there then?

Judge: My mother’s father, Gus Lavenson, bought a house on 22nd Street between T and U. It is exactly a block down the street from where C.K. McClatchy and his wife lived. Actually, C.K. McClatchy and his wife lived in the place that is now called the Ella K. McClatchy library, but that was their home. And then around the corner, U Street, in back sort of is, is a Spanish style bungalow that he built for his daughter Eleanor. Eleanor McClatchy never married – at least she never acknowledged that she married [text omitted]. And so they built the house, that little bungalow place for her. And then when she took over the Bee from C.K. she always lived there and they made the family home into the library. And I lived right down the street.

A lot of people that lived in that little neighborhood. There was Senator Sheridan Downey lived on 21st Street, about, no 22nd and V, right down the street. And we had some – that was a big part of town until the fabulous 40’s were developed.

Miller: So what was the limit at that point of . . .

Judge: The City?

Miller: Yeah. Of the actual residential development going East? You were at 22nd or so, and how far did it go at that time?

Judge: The City stopped at Alhambra, which was then 31st Street. That was the limits. And it was in a perfect grid the way Sutter visualized it until everything happened and it started expanding. But you knew always where you were because it was numbers going one way and letters going the other and an alley going in between for every block. It was perfectly designed and laid out. So we started on about C Street and went to, where did we go? It was called Y Street then and then it was renamed Broadway and that was the limits that way, and then 31st Street which became Alhambra, renamed, became that boundary, and so you knew exactly where you were. And it was very nice and very convenient.

Miller: I would imagine it was very bucolic then, too.

Judge: Yeah, and I think the bad part of it was, we were very provincial, and pretty snooty. It was hard to break into old Sacramento society until quite a long time after the War, but people just came flooding back here after the end of World War II because many of them had been stationed at McClellan and Mather and many of them took the very nice local girls away from the people they should have married and married them, and then they came back with their wives in an enormous movement now and has been in the last 10 or 15 years and the people in the 40’s are buying up their former family homes or inherited them and moved into them and those kinds of things. They’ve got new generations.

Miller: It’s an interesting thing. At some point I’d like you to talk about it. I’ve just recently become aware of how those neighborhoods have continued. Elmhurst, for instance. I’ve met a lot of people in the Elmhurst, which is the T Street corridor, in the early 40’s and they’re third generation living in those houses – I mean they just love their neighborhoods. Is your old neighborhood like that? If you went back there could you see any remnant of your neighbors?

Judge: The house that we grew up in is right down through the alley and backs up – those lots were all half block deep lots – and on 21st Street is where, what’s that new beautiful place that’s . . . Viscaya. And that was built from scratch. And then next door to that is an old house that actually backs up to the house where I was raised, and they bought that one and use it as their bed and breakfast for the Viscaya because it’s quaint, and it’s big, and that sort thing. And so that house backs right up to the house where I was raised. My grandfather bought it in 1911. It was brand new. I can’t remember if it was build spec or it was built for someone who decided not to move into it. But he did not build it but he bought it brand new and that’s where he relocated. Before that they were down around 10th and O or P, but that was before I was born. This one was 1911 and so my mother was actually born in 1888, and it took me almost until I was 70 years old to be able to find out for sure that’s when it was. So she went to high school and grew up in that house, and it was a great, great house. Her wedding in 1914 was in that house and Judge Peter J. Shields performed the ceremony. And in 1938 my sister was married in that house and Peter J. Shields performed the ceremony. He was a neighbor – he was just a block. He was on 23rd and U and we were at 22nd between T and U. And so I lived there from the time I was three months old, when my mother brought us home – back to her parents – I lived there until after the War. My mother remained there and finally sold it, and then had to take it back. And Barbara and I wanted to buy it bad. It was a great, great house. Not only was it a great house, but it burned down in 1935. It was completely gutted from the inside, but all the structure was left. And my mother had a field day with the insurance money rebuilding that house into what was then a very modern house with far more bedrooms. We ended up with like 6 bedrooms and 5 baths. And, oh, it was a neat place, and it was brand new then in the mid-30’s. But it’s never been anything since. It’s been a children’s home for wayward boys, and a residence club for elderly men that needed a place to live, and – the neighborhood is still pretty good, but it isn’t considered a choice area, particularly, although the McClatchy homes and those places – the greatest criminal lawyer that I know of in Sacramento history was S. Luke Howe, who became a partner of Raymond Timothy Coughlin and everybody thought oh, my, crime will run rampant in the streets of Sacramento with those two highbinders together. But by God Coughlin became what I believed was a great criminal law Judge. He would not handle any civil cases. He said, you know, all my life I’ve done this and I’m too old to learn, so just give me the criminal stuff. And he was, I thought, absolutely fair. I went before him as a prosecutor for the first two years, and any qualms you might have had about his background – he’s one of those people who was a fine outstanding lawyer, but now he’s a Judge and he did that . . .

Miller: He knew the difference.

Judge: He knew the difference. You bet. [Text omitted.]

Miller: Well, tell us what boys did in East Sacramento when you were, let’s say, pre-teen and teenager. What did you guys do to entertain yourselves?

Judge: Well, we did everything by – there were no organized things like Little League and those kinds of things. You did it all sandlot. But you faithfully observed the seasons. You played football, touch- tackle in the street, or tackle in one of the big lots with lawns and stuff only during the right season. But we roller skated certain seasons, and we played basketball and we played baseball and we did all these things. And everybody did them. And a lot of the things – not a lot, but some of the things I couldn’t do because I was too fat and they didn’t have clothes that would fit me.

Miller: I can’t even imagine that.

Judge: Oh, boy. Oh, boy. And it was a good place to grow up. Then, while Barbara and I were first going together and I was down at college some of the leading lights – the most prominent families in town – decided it would be a neat idea – they were clearing the ground where McClatchy High School was built, and these wonderful young men – scions – went out into that field and set fire to it. There were haystacks that were piled up out there where they had cleared the land and, anyway, they thought it would make a great fire and it certainly did. And they were all in the slammer and there was a terrible scandal. But they took care of it. The families came in and said we’re not going to have any of this. And none of them tried to beat the rap. I mean the families were furious. And it was a lot of stuff but they took care of it and boys would be boys kind of thing.

I grew up riding horseback. My mother was just very much into that and she was a very good horseman, horsewoman. And she started me out with my first horse that I bought when I was six, and started showing it at the California State Fair, and then became – I bought a hunter or jumper and unfortunately it took more time that I thought it ought to take. It was 6 days a week that I had work with my horse and I missed out on things that I would liked to have done, but I also got a lot of joy out of that.

Miller: Did you jump competitively?

Judge: Oh, yeah. For, right up until the time I went away to college and then there was no way I could keep it up.

Miller: Do you have pictures of yourself in your great equestrian stuff?

Judge: Oh, yeah, you bet.

Miller: We need some of those for our archives. That’s fascinating. Was that a big thing in Sacramento?

Judge: The horse show, annual horse show, was run in conjunction with the State Fair. And it coincided with and was part of the Fair and a very important part. And there were a lot of people here in town that participated. Wendy and Tink Downey, Jack Downey’s younger sisters-both were very active in Sacramento equestrian activities. [Text omitted.]

And when we started mobilizing and getting ready and then starting the Air Force fields and all that, we knew that we had to clean up the red light district which was the biggest red light district anywhere, I mean within anyone’s memory. I mean that was the thing to do on Friday and Saturday nights was to drive down around the older part of town and the slums and the ladies would sit in their windows – their front windows – where you could see them. And you’d drive around and these were wonderful days.

Miller: What part of town was that?

Judge: That was the slums of Sacramento which was awful. It ran from the river right up to 6th and K, and 6th and K was anchored by the old Breuner’s store and it never jumped – the slums never jumped over Breuner’s. It literally stopped – the slums did – but it was awful because you drove home, I mean you drove up from San Francisco, and Berkeley, and everyplace else and there were no freeways, and you came right in to what was called M Street, which of course is Capitol Mall now, and it was the worst possible part of town, and you drove right up through the slums until you got as far as 6th. And that was the first big redevelopment project was that lower West End.

Miller: You know, it’s really interesting. Your telling that store explains to me comments Judge Wilkins used to make when we’d drive out N Street. When we’d go from the courthouse and then go down N Street, he would always say something and I never quite understood what he was talking about. And that’s what he was talking about, right? ‘Cause he said “They moved,” you know, he’d say “They moved, they used to be here,” and then we’d pass somebody and he’d say “This must be the new N Street.” And I’d say “What are you talking about?” “Oh, you don’t need to know that.” But that’s what he was remembering.

Judge: Sure.

Nichols: Well, I moved to Sacramento in late 1961, and the slums that you are describing were still the slums as recently as then.

Judge: We were able to save the old Traveler’s Hotel as a landmark, and the old Ramona Hotel, there were a few places that we allowed, that the Redevelopment Agency allowed, but it was a wonderful time because our law firm pioneered that. Martin McDonough and Bruce Allen worked out the whole redevelopment thing and represented the Redevelopment Agency and then I came in to do all the condemnation, where we had to condemn these properties. And it was a kind of an exciting time.

Miller: So, as a boy it was kind of an adventure to drive around this area and see what was going on?

Judge: Oh, yeah. That was big time.

Miller: Did your parents know, Judge?

Judge: I meant to tell them. I meant to tell them. But there are wonderful stories. The one – every retail store, major store, had a slogan on it, like they weren’t all that clever. But ours was “Shoes for the Entire Family,” and then there would be a cartoon of different people in the family. And the Albert Elkus – Albert Elkus the first was the mayor of Sacramento and his son, grandson I grew up with and all that. And they all worked there in Elkus’s store and that was on about 10th and that slogan was “Every Man is Odd, But We Can Fit Him.” Well, you can imagine what happened with that one. One night some of the gentry around town decided that it would be a nice idea, and they pried that great brass plaque off of Elkus’s and took it down to Fanny’s Whorehouse on 2nd Street and tacked it up there.

Miller: God, you all sound like Cowboys. Why don’t we take a quick break. Maybe 10 minutes and then take a run at noon. Can you make it to noon do you think?

Judge: Oh, sure.

Miller: Are you enjoying this enough to keep going that long?

Judge: Oh, hell. What are you talking about? You ask a man to talk about himself and you have a captive audience – I can talk all day. And pay you to let me do it.

Miller: We’re going to take a break then.

Miller: So let’s ask you just one more question and then we can move on. Did you play any role in the movement of the sign?

Judge: In the movement of what?

Miller: In the movement of the sign.

Judge: I’d better refuse to answer.

Miller: I think the statute ran, Judge. So when did you get your first car, that you had access to on a regular basis?

Judge: My first car was given to me at the end of my Freshman year from Berkeley. There was a lawyer here in town named Albert Sheets. Are you familiar with that name? He and my mother went together – in those days you certainly did not live together. She met him at Governor Jimmy Rolfe’s Inauguration Ball. That was 1931. And that started a romance that lasted until the early 50’s – it was better than 30 years. And he wanted to get married, he wanted to have a different house. He wanted to buy the house next door so that my mother could be close to her family, her children, and her mother, but not live in the same house because he didn’t want a bunch of kids in the same house, and my mother said “That won’t work.” But he was a regular, seriously regular, attendee at our house and had an enormous influence on my life and he was very, very good to me. I came home one night from my summer job at the shoe store in 1938 and, I came home, and he said to me “You’re always making fun of my car and so I thought I show you one that looks better than my car.” And I looked and said, “You’re right. That’s a good looking car.” And he said, “Why don’t you take the keys because it’s yours.” Wow. 18 years old and he just gave me a brand new car.

Miller: How did you court before you had a car?

Judge: I didn’t really – oh, I could always drive my mother’s car. My grandmother had a car and a chauffer – she never learned to drive, and we lived at her house and she had a full-time chauffer that lived in.

Miller: Oh, so you courted very well!

Judge: Yeah. And if I really was in trouble, I’d borrow the chauffer’s car if he’d let me. And everybody drove or had access to their parent’s car and that sort of thing. And my mother I talked into allowing me, on my 12th birthday, to take the car and go around and visit friends of mine because of my birthday. I can’t believe that happened, but it did in those days. Things were very relaxed. And we got our driver’s license at 14 if you passed the test and that sort of thing. So we were all driving from the time we were 13, 14, 15 years old. [Text omitted.]

But because of [text omitted] all of our military troops around here, the City Council decided to create a new position of Police Commissioner answerable only to the Council, not to the City Manager. Otherwise it was a pure City Manager type of government, and the mayor didn’t have anything other than ceremonial duties. I mean he didn’t have any more power than any other Councilperson. So the Council decided we’ve got to do something. We’ve got bad things happening, and the War is coming, and all that. And they had an employee who was Superintendent of the Sacramento Water and Sewers Department. And he was also the Adjutant General of the National Guard in his spare time. He grew up in the military. And they said here is the perfect guy, and we won’t have to pay him any more money because it will be in addition to his other duties, and he will have this position of considerable honor. And he’s got the full salary, and he’s got the Adjutant General’s salary for the work that he’s done. And he did. He went in there and cleaned things up, and heads rolled, and he’s a Brigadier General, and he’s very patriotic, and the War is coming and all that, and everybody’s very concerned about all these things. And so the interesting part from my point of view is that I ended up as his aid, aide-de-camp right after the whole division was mobilized in 1941 before the actual Pearl Harbor. But everyone knew it was coming, so that Division was mobilized and he ended up not too long after that sending for me to come and be his aide, which was in Hawaii.

Nichols: And his name was?

Judge: The General? Mittelstaedt. R. E. Mittelstaedt. Absolutely no sense of humor whatever, but was a very able, able guy. And he was furious because the then War Department changed its table of organization, and he had as his aides two Captains who he thought were the best officers he’d ever seen, and he was right. One of them he liked so much – his name was Carl Jennings – and he was working for Mittelstaedt in the Department of Water and Sewers, he was an engineer, and he talked Carl into joining the National Guard and taking what they called the “10 Series” so you could get your commission by studying correspondence, and it took you about a year and then you took your examination and all that kind of stuff. And Carl did, and then Mittelstaedt was high enough up that he was able to get Jennings detailed to him as his aide, one of his aides. And the other young man that he had was an incredibly able guy who came from the Citadel, the military school, and he was a real soldier. And with the combination of those two people, Mittelstaedt had the best he could. And then the War Department came along and changed the tables of organization and they eliminated – what they did was for Brigadier Generals they could only have as asides no more, or no higher, than a First Lieutenant and a Second Lieutenant. And then for a Major General it could be a Captain and a First Lieutenant. And then for a Lieutenant General it could be a Major and a Captain and that sort of thing. And so Mittelstaedt had to get rid of his two Captains. And he was beside himself, and he sent for me, and he wasn’t kidding when he said “I haven’t got a second aide yet, and it may take me a while, so you’re going to have to do the work. But I want you to know you’re going to be replacing two of the best soldiers I ever served with and I doubt very much whether you’re going to measure up.” I immediately doubted very much whether I was either.

Miller: How did you know him? Or how did he know you is probably better.

Judge: He was President of the Sacramento Riding Club, and one of its founders, along with my mother and several other people. The only thing was that nobody dared replace him. You wanted to change the Presidency occasionally, but nobody ever dared challenge him. He got furious if you did. And so they went along with him until he was mustered into active duty and then I became, shortly after that when they changed the tables, I became his aide then and I served for about a year and a half [text omitted]. When I was asked to describe my service as an aide to a General, I said in all honesty, “The best way I can say this is that 95% of the assignments that are given to me could be done successfully and very well by any reasonable Private First Class, and the other 5% is so hard that no Five Star General could do it. I never found anything that was commensurate with what I thought I could do. And he wasn’t very understanding. He was kind of tough.

I remember one night, I will never forget this, but his Orderly – he was grouchy because the Infantry Division triangularized and he was left without a command. Before that it was what we called a square Division and he commanded a Brigade, so he had his own command and then, of course, he was under the Major General who commanded the whole division. And they took out the Brigade. And so you went from a Regiment, commanded by a Colonel, to Major General who commanded the Division, and Mittelstaedt was left without anything, really, to do. But he was the Division – the tables of organization classified him as the Assistant Division Commander, which means do whatever the Division Commander tells you to do. Sort of the Vice President. And he didn’t like it very much because the only staff he had, really, was his personal staff, and he caught me saying “I’m the Chief of Staff of the Personal Staff,” which consisted of his Secretary, a male secretary that did just regular typing and that kind of stuff, his chauffer, and his orderly, and then his two aides. And so it didn’t seem like there was a whole lot that I was supposed to be doing until we went overseas, and then the Division split up and they assigned him the defense of Maui, Molokai and Lanai. And then the Division Commander took the one that was more critical, that was further North, and West, and that was Kauai and that place. So, in any event, then Mittelstaedt liked what he was doing because he had a command and he had a staff and he had me to beat up on.

Miller: We’re kind of ahead of ourselves, but did you stay with him throughout your tenure in the War?

Judge: No. I stayed – it was about a year. And then he said, “You know you’re never going to be able to get another promotion,” because by that time I was a First Lieutenant and that was as high as I could go. And he said “I don’t want you to have to stay here,” and he didn’t say “I’d just as soon get rid of you.” But, so I left then and found another job in Division Headquarters that I had a chance to go up higher. And so I stayed with Division Headquarters and liked it a lot better. But I found things to interest me that he’d always find out about. But when he was going to be away he’d say “I won’t be here until around 3:30 or 4:00 this afternoon, so you can take care of some of these things that you have to do then. So then I’d go off to other places and I would let the high ranking officers think that I had enormous, enormous power with the General and they’d just treat me wonderfully. They’d get good food out and I’d have meals with them. It was that kind of stuff. But, it was kind of a tough time. And he insisted in speaking in the third person, and I didn’t really understand that. No, in the second person. I understood the military protocol where you’d say “Does the General want this or that.” And that I did fine. But he used the royal “We.” He’d say, “Don’t you think we ought to do so and so,” and I’d say “Yes, sir. I think that’s a good idea.” And he meant “Don’t you think that I”, and he didn’t mean “We.” And I would slip up on that and, you know, things like we came out and got in the car one day and he said – he wanted the chauffer to open the trunk of the car for something. Oh, I guess he wanted to get his gas mask. We had to have equipment on all the time when we’re out. And he said “What the hell is that?” And I said “That’s my gas mask.” And he said “What is your gas mask doing in the trunk of this car?” And I said “You said don’t you think we ought to put our gas masks in the car,” and I’d say “Yeah, yeah.”

And the time that was the worst was when he said “I think we need a haircut.” And I said, “Yessir.” And so we went to some barbershop where there were Japanese women that were the barbers in these little civilian places. And he wouldn’t look, so he didn’t know what I was doing exactly. But he climbed in the chair, and so I climbed up in the chair next to him. And his barber worked faster than mine. And so they would cut – the Japanese women barbers would cut one side of your head only, and then pad around and work on the other side. And so when his hair was cut, he said “Where the hell’s my aide?” looking around. And I said, “I’m over here General.” He said “What are you doing over there?” And I said “We were getting our hair cut.” And he said “Well, get the hell down here, I’m ready to go.” And so I had to climb down out of the chair with one side of my hair cut – it was those kinds of things that made my aideship difficult. And so it culminated with 2 a.m. his orderly came rushing into this little tent that I was in, nearby. And he said “Wake up Lieutenant, the General wants to see you right now.” And I said, “Oh, God, what do I wear. I don’t want to go over in pajamas.” And he said “Wear anything, but he’s mad and he wants to talk to you right now.” And I said, “What about.” And he said “I don’t know, but don’t waste any time, because you and I will both be in trouble.” So I slipped on something real fast and came over. And he’s sitting on his bunk is this is 2 – 2:30 in the morning. And he’s obviously been thinking, and he gets made when he thinks about some things. So I’m standing at attention, terrified. And he said, “Why don’t you not be at attention, just stand at ease and listen to me.: He said, “the job of an aide has been created by the War Department because the General is so busy with all of the things that he has to do that he doesn’t have time to take care of his laundry, or his place where he’s going to sleep, or where his bed clothes are, or anything. And that’s why the aide is there – to see to it that these things are done for his General. And I said “Yessir.” And he said “What I’ve noticed is that whenever we move anywhere, you always see to it that you find a place where you’re gonna sleep, and that you find a place where you’re going to eat.” And, he said, “You should be thinking of your General.” So . . .

Miller: How old are you at this point?

Judge: 21, 22. Very, very lonesome having been just newly married, and overseas, and feeling very abused, and being you know. So part of these things – and then I realized that I wasn’t supposed to be doing what I was doing. But it was difficult.

Miller: Well, we have to go back to Sacramento for a moment. We got your courting concept. What did young people – high school, college age – what did they do for their recreation and their little courting ceremonies in Sacramento?

Judge: In Sacramento, oddly enough, the only movie theatre that still is remaining and in the exact shape it was in in the 1930’s when Barbara and I started going together was the Crest Theatre, which was called the Hippodrome and they haven’t changed it any. They’ve just maintained it and that sort of things. And it was very meaningful to me because when I would come home, I don’t know – because everybody would do different things and I don’t remember what they did – but they’d come home, I’d come home Friday night from school and usually go to a movie. And it would be probably in one of the 3 or 4 theatres in town. One of them was the Alhambra which it’s just a travesty that they demolished it. And, you know, there were high school football games, and there were baseball games. Baseball was a big, big place to go. It was always over there where Gemco used to be on 10th and Broadway.

Miller: The Sacramento Solons – is that?

Judge: They were the Sacramento Solons. But they were first Moering Field, and then it burned down – there were wooden bleachers and that kind of stuff – and so then they rebuilt it and they called it Edmonds Field, but it’s the same place. And we had the Pacific Coast League, was a very – it was a Triple A League and there was the San Francisco Seals, and the Oakland A’s, and it was good baseball.

Miller: And the Hollywood Stars and the Los Angeles Angels.

Nichols: San Diego Padres, Portland Beavers, Seattle Raniers.

Judge: You betcha.

Miller: Great games to go watch.

Judge: Great games. We all grew up and went there. In the summer time, in the summer time the other thing that you did was to go to the dog races – the Whippet races. Very . . .

Nichols: Where were they run?

Judge: Oh, I can’t remember. Not too far away from that – that they had

Nichols: At the State Fair? State Fair track, or . . .

Judge: I can’t remember. I honestly can’t. I used to go there. We loved them. We also loved motorcycle races which were at Hughes Stadium, which was an all-purpose stadium. I’ll tell you, and that was another thing my grandfather and grandmother were in. They were subscribers to building that Stadium, which was a City Stadium. And then they gave it to the Sacramento City Unified School District ultimately. But it was first a City Stadium and we got script where we could go for all of our lifetime for nothing if you were a subscriber from the beginning for the building of the Stadium. And Sacramento Junior College football was there, and . . . So there were quite a few outdoor things to do, and quite a few activities, there were movies and there just wasn’t any television, but apart from that . . .

Miller: Well how about – that was the beginning of the “Big Band Era.” Did the Big Bands come to Sacramento?

Judge: Oh, some. Dick Jergins started here and everybody knew him and this was where he started his national thing. When I came home from overseas he was playing at the big hotel, the big wonderful hotel in Oakland, Berkeley – the

Miller: The Claremont?

Judge: The Claremont. And then he’d play up at Tahoe.

Miller: Did you have a ballroom in Sacramento? To speak of?

Judge: Wills Point, which was Bob Wills and his Western Swing Band, and then Billy Jack Wills, his younger brother took it over. And it was out Auburn Blvd. around – yeah, just out toward McClellan, McClellan Field and visiting bands would come there and there would be good bands that would come by and then we’d go to that. And there was a lot of that. Kay Kaiser used to come, and there were a bunch of them. And that was fun and we went to all of those things – Neil Tippets and that kind of stuff. And then there was, the one bad thing we had, I thought, and I was responsible, almost solely, for getting rid of them, were high school fraternities and sororities, and some of us thought that kids were too young for that kind of discrimination and being blackballed and all that. And when I was on the City School Board I started a move– . . . I was in a good position to do it because I had been a fraternity boy. If you weren’t you don’t have the credibility because you’re made and you’ve been passed up, but I was in a good position to do it because I had been in it and my mother had been in and my sister had been in, and those sort of things, and so you didn’t have to say I was passed over. And I really fought a battle, and ultimately won, and then, God, we went into litigation for ages. Went to the Court of Appeal and then finally Fred Pierce wrote the opinion on the Court of Appeal and upheld the ban of fraternities and sororities. But, boy, they never let me forget it, I’ll tell you. Wow.

Miller: You went to Sacramento High School, right?

Judge: Thank you. That was the only high school there was.

Miller: I was just going to say, was that the only high school then? Was Christian Brothers here then?

Judge: Yeah.

Miller: Were there any other private schools in Sacramento?

Judge: There also were some in the County. Grant Union was there from the early 30’s. And of course, San Juan is an old, old school and there were a lot in the surrounding areas. But the Sacramento City Unified School District boundaries were coterminous with the City politically. If you were annexed to the City you were automatically annexed to the City Unified School District. None of that is true now, but that’s the way it was then. And so in the Sacramento Unified School District the only public high school was Sacramento Senior High School. McClatchy opened in the Fall of ’37 and I graduated in January ’37, so I was just barely gone. Barbara moved over from – she was 2-1/2 years behind me, so she started at Sacramento High and then in ’37 she moved over to the new McClatchy High School. So they still to this day do their reunions together because some of them were both classes and that kind of stuff.

Miller: I wondered – when I went to High School we had special teen clubs that were connected to their high school. We don’t have things like that anymore. Did you have things like that in Sacramento? When you went to high school?

Judge: Yes. You mean other than the fraternities and sororities?

Miller: Right.

Judge: Well, there were honor societies, and there were things that were centered around the school – the Key Club which was the Junior –

Miller: Rotary, or something? Nichols: Junior Achievement?

Judge: Not Junior Achievement . . . Junior – it was a service club.

Miller: Junior Lion’s Club, or . . .

Judge: Well, there was Rotary, and there was Kiwanis and there were those kinds of things. And then there were a lot of Eastern Star kinds of people that grew up – there were always Junior versions of those things. There were plenty of organizations. And the fraternities and sororities had dances all of the time. And the Eastern Star, and the Elks Club, you’d rent those places and you’d have your Spring Ball and like that. There was a lot more to do and people knew each other better, and it was just an easier, a lot easier time, if you want to know the truth.

Miller: A lot easier to be a kid than it is now.

Judge: A lot easier to be a kid. And it was much easier to be in the military in the War in which I was than in any of these other wars, because, you know, they were unpopular wars and we shouldn’t be there. Nobody ever argued when – it was much easier to be in service than it was for a man not to be, and you had to wear your uniform. You could not wear civilian clothes during World War II.

Miller: And I seem to remember that the men who couldn’t go – my father for instance couldn’t go because he was a steel mill supervisor and he was one of those people that they forced him to remain exempt. And those men suffered internally and hated it.

Judge: Hated it. And if you were home on leave or something you were wearing your uniform. Nowadays, and for many years since World War II, people had another wardrobe and sometimes it was not very popular to be a soldier and so the minute they got finished for the day they’d go into civilian clothes. While we were not permitted to do that and so we were always in uniform except in a bona fide athletic contest and when we were doing gubby work and then we wore what we called fatigues. But when you’d run into young men downtown that were in civilian clothes, I felt awfully sorry for them because there’d be a lot of people around angry, and half drunk, and choosing them – it was lousy to be, to be in that time to not be in service.

Miller: I know there was a large Chinese community in Sacramento. Was there any Japanese community at all that was affected by the internment? Judge: Well, the Japanese were all of course, they were swept up and moved into the interior.

Miller: Right. And was there a reasonably large population here, of Japanese?

Judge: Yeah, oh yeah.

Miller: How did the community deal with that at the time.

Judge: You know, it was so simplistic. You’re ashamed of yourself really, but it was – they were – no matter how much you like them and how nice they are they’re Japanese – I mean that’s their heritage and if you turn your back they’ll stab you in the back no matter what, and all that kind of stuff, and everybody was afraid of them.

Miller: So there was no resistance to it at all. It’s what people – everybody

Judge: Everybody.

Miller: Interesting, huh.

Judge: And everybody was afraid because we’d gone through this stuff of the Fifth Column in Austria with moving from within rather than attacking from outside and we were always afraid of the loyalists who were working, you know, behind the scenes to take over. It was pretty tough when we were sent to Hawaii and 80% — I was originally stationed in Kauai, and over 80% of the people on Kauai were Japanese. What do you do, you know.

Miller: Shut the island down?

Judge: Yeah.

Miller: Amazing.

Judge: But it was, it was tough here, but people just said “Well, we can’t take any chances.” And that’s the way you believed.

Nichols: That was the information that the government put out.

Judge: Oh, yeah.

Nichols: And, you know, people didn’t have any reason to believe otherwise.

Miller: Okay. So, what year did you graduate from Sacramento High School?

Judge: January ’37.

Miller: And you went directly to Berkeley?

Judge: Well, I couldn’t do it because the semesters overlapped and Berkeley got over much and Berkeley got over much earlier. I loved that system, starting in August and the semester is over in May. And of course, so I went to Sacramento City, then, Junior College, for that first semester, and just picked up some extra units and got some things in that I wanted to and then I went on to Berkeley in the Fall of ’37.

Miller: Any question in your mind about where you’d go to college? Any struggle at all?

Judge: No.

Miller: No? Old Blue all the way?

Judge: My, you now, something like my uncle, my father’s brother was the varsity yell leader for two years at Berkeley. That was, my God – two years, a Junior and a Senior, and he was a varsity yell leader. And he was very, very prominent. But there was less than 2,000 students in the whole student body in those days. And my father, after he came home from Hawaii went to Berkeley and then he went to Hastings because when he went there was no Boalt. And my bother Coley went, my mother went there, everybody was a solid Blue.

Nichols: Family tradition?

Judge: Absolutely. You just never even dreamed of going anyplace else. So I went there for four years and then started law school and, because in those days if you took upper division military, which you didn’t have to do, but all male students had to take from a land grant college had to go for the first two years. Then if you wanted to go upper division, and they felt you were qualified, then you’d go in for the last two years and then you’d graduate with a reserve commission if you completely successfully.

Miller: They continued to do that until the big riots, and then they decided . . . .

Judge: Yes, and then all the things changed drastically.

Miller: Were you in a fraternity in college?

Judge: Yeah. I went into a local. In those days, no Jewish people were accepted in national fraternities or sororities. In fact they were – that was part of their constitution and by-laws before all these things happened. And some, I guess, were made exceptions of, but it was generally understood that you either went into a Jewish fraternity or sorority, or there were a couple of locals around that didn’t have that. And this one, I liked – I thought it was a great fraternity. Former President Robert Gordon Sproul was an ABRA. And I don’t know how it came about that I was, but I was pledged into that house in my second semester, and I still have friends, a few friends left from there, and I liked that, and that was a good fraternity.

And I was, yeah, I stayed there 4 years so I really had 4-1-1/2 years with the first semester, and then graduated with a 2nd Lts. Commission in the Spring of 1941, and started law school and was pulled out – Pearl Harbor was bombed while we were studying for our first law school final examination on a Tuesday, and Pearl Harbor was hit Sunday morning. And it was my usual good judgment – I said, “Certainly the Professors will cancel the final examination because the City is blacked out. I mean immediately there were sirens all over the place and you couldn’t see anything and people were imagining sighting Japanese submarines at the Golden Gate, and all kinds of things – it was kind of a panic. And so we showed up for our final expecting to be told that we were excused and the Professors weren’t really aware that Pearl Harbor had been bombed.

Miller: Don’t get distracted.

Judge: No. Heavens no.

Miller: So did you – you finished that first semester.

Judge: I finished the first semester and I went in and I was very ill at the time – I had sulfa poisoning and I found out – sulfa was a pretty new drug at that time, and I’d had a strep throat and I was home for Thanksgiving and I got sick and nobody could seem to find out what it was, but I was running a fever and things were bad. And I went in and said “I’m not – I’m sick, and I’m running a 103 fever, and do I have to – what would happen if I didn’t take the final?” And they said “Well, you certainly would be excused. But when you come back you’ll have to take it.” Which would have been 4-1/2 years. And so they said “If you actually have orders to report, then you’ll be excused in the sense that you’ll be given an average grade of whatever you got on the other finals.” And so I took the first three, and I did not do well, and then I got my orders to report and so I came limping down there and they said “Fine, you’ll get your grades,” and all that. But I had to fight my way out of that one.

Miller: And this is, then, when you went and joined the General?

Judge: Not quite. I was assigned – first of all I went to the hospital and I was there for a month and they finally got me straightened out. They cancelled my orders to report – we all got orders when they were pulled out and they let us stay until the day after Christmas, because it was December anyway. And I was supposed to report on the 26th of December to Camp San Luis Obispo where I might very well have been. But they – I – they had to be cancelled and so, by the time I got well, my orders were changed of course and I was sent to Ft. Lewis, Washington in February. And that’s where I stayed for 3 or 4 months and believed, as I believed every rumor, that we would be there for at least a year training, and by that time very likely the War would be over and I wouldn’t have to go overseas. And so I wrote home and invited Barbara to come up because I’m going to be here for at least a year. And so she came up and we were married in Tacoma, Washington, and I was – my rumors were not quite accurate and I was on the high seas three months later. Which was awful. It was horrendous.

Miller: And she was in a strange place and – she probably went home right away, right?

Judge: So she came home and that was – so then I was gone for 33 months without getting home. That’s a long time for a newlywed.

Miller: That’s a long time for anybody when you think about it – 33 months.

Judge: It was a long, long time.

Miller: With no – you got R & R but it was local? Or did you not?

Judge: I never did, but I didn’t even apply because I was afraid that I might stand a better chance if I didn’t have a – people were getting passes to go to New Zealand and Australia for R & R kind of thing, but I never did, and just waited and waited and waited, and finally got selected to come home for 45 days and while I was home the atomic bomb was dropped and, boy, the War ground to a halt real fast. Real fast.

Miller: You were in Hawaii the whole time? You were stationed . . .

Judge: Oh, no. No. I was in Hawaii for a total of 15 months counting Kauai, Maui, and Oahu where we were staging and getting ready to go further. And then I went to Guadalcanal for 4 or 5 months, and then we moved from Guadalcanal to New Britain, which is right off the coast of New Guinea, and I was there for 8 months, and then we went in our first real combat which was the Phillippines in, I thing it was, yeah it was December of ’44, I guess.

Miller: And what division of the Army were you in?

Judge: Infantry Division.

Miller: And were you in command of something?

Judge: No, I was a staff officer with Division Headquarters and I was doing what amounted to – a lot of it was administrative work but it was doing staff kinds of stuff. Personnel and a lot of things.

Miller: And you guys followed the troops. The administrators actually followed the path of the troops instead of staying in one place.

Judge: I went in – I went in on D-Day on Luzon, which was where we attacked, and I went in probably an hour after the first assault troops hit the beach and we were circling and getting ready to go in and that sort of thing. So no, we were moving right with them and my biggest job was casualty reporting. I had to get around and find out how many casualties we had and whether the evacuation and all those kinds of things. So it’s, so it comes generally under the head of administrative reporting and that kind of thing.

Miller: And you were how old at this time?

Judge: 24.

Miller: Boy, grew up fast in those days, huh?

Judge: Grow up fast. Yeah.

Miller: Do you maintain relationships from the service?

Judge: Well, I used to. Carl Jennings is still – we have an organization here for lack of a better name that one of our members, Joe Coomes, who was in our old law firm, named “Friends of Ed Fairbairn.” There was absolutely no reason why you would do that. He just made it up. But Ed Fairbairn was a City engineer and much respected and liked, and then became City Manager. And Joe was the City Attorney and there were other people – and everybody liked Ed Fairbairn. He was a good guy, and so Joe said “Why don’t we call it Friends of Ed Fairbairn?” And we got about 5 guys that belong to that. And one of the is Carl Jennings, and one of them is Jim Jackson, who is the former City Attorney, and one of them was Ron Parker who was the City Engineer. And they were all connected with the City, and I did a lot of condemnation work representing the City during the time of redevelopment, and so I was kind of attached to the City people, and had worked for them a lot. And that’s still going although we’re losing people a lot, but we meet about every couple of months and have a big feed at Frank Fats and there isn’t a single item on the agenda. Nothing.

Miller: That’s the kind of meeting to have.

Judge: Yep, yep.

Miller: How about high school. Still connected with those people that you went to high school with?

Judge: Yeah, but I’m, I’m fighting very hard to stop the reunions. They didn’t have reunions at first because we all were off in the War. And so our first reunion was a 20th reunion, which is quite unusual. And it was a great reunion. And then we had the 30th, and then the 40th, and then we got worried about people dying so we had the 45th, and then the 50th, and then the 55th, and then the 60th. And each time lately I have said “We should have stopped at the 50th. We had wonderful times getting together with people, but, you know, after a while it’s the same people that come. And you’ve seen them, and you haven’t got anything else to talk to. You’re not renewing old acquaintances, you’re renewing the same ones. And it gets very boring and very tedious. And I was on the original committee, and I was the MC of the 20th, 30th, 40th, 45th, 50th, and 55th, and I said “This is it. I am not going to do this and I’m voting vigorously against having any more. But, I will come if you insist on having one, but I’m not going to MC any more.” It was that first post-War thing and it just really connected. And for a long while you’d see different people each time. And we’ve never, we never had less than 400 in attendance. In all these years, including through the 50th. Which is quite unusual.

Miller: It is, it is. But a lot of people stay here, as opposed to where I’m from.

Judge: A lot of people stayed in Sacramento, but an awful lot of them came from all over, and they came faithfully and religiously – they would come back. And that’s kind of nice. Only, as I say, if it’s the same people over and over again you get tired of it.

Miller: Might as well get together for some other reason, right?

Judge: Yeah, yeah. But the interesting thing is that I’ve found a number of my classmates that I didn’t know that I knew and I didn’t remember from high school that I got to know here. Like Joe DeChristoforo. I had no idea until about the 30th or 40th reunion – I said “What are you doing here, Joe?” and he said “This is my class.” But it was a big – it was the largest class to ever have graduated from Sacramento High School before or since. Because we were just crammed together. Bursting at the seams. Had 4,000 students in the, in the, with a school that was designed really for not much over 3,000. And there just was a very strong bond because of the pre- War and all those kinds of things. And we all graduated, virtually, from that same school. And so it meant a lot, and we’ve kept up with the reunions, but I, God, I’m tired of those reunions. I’m telling you I’m tired of them.

Nichols: What are your recollections about being a returning veteran and going back to law school?

Judge: Well, of course, I went through those agonies of here I am a Major, and now I’m going to have to start all over again at the very bottom as a student, law student, in the first year class with one semester behind me and having been gone . . . Imagine starting to take real property, the second semester of real property after 4-1/2 years. And it was rough. ‘Cause I wasn’t in law school long enough to really get a grounding in it. And then you , so you forget. And it was difficult and I thought – talked a lot about how I could stay in and get a reserve commission, I mean and get a regular commission. And they asked us if we wanted to – most of us that were mustered out at that time and obviously decided against it. I was certainly not what you would call a great soldier. And it just seemed like it would be nice to start out as a Major instead of being a Freshman. At law school. But, you know, it was the old law school and the largest class that they could accommodate was crammed into the first year class room. It was 103 people. And our class actually graduated 65 students, and half of them were returning from the same class, were jerked out in 1941, and came back in 1946, which is amazing that that many of us came right back and joined the class that had started out the semester before.

Nichols: Did the school make any accommodations for the fact that they were getting a bunch of folks who had 4 years of non-law school experience?

Judge: Absolutely not. In fact they were furious with us because they fostered this competition – I mean no matter how good your friends are you are the one that’s got to be the top one in the class. You certainly don’t want to share things with each other, and work together. And we said this is baloney. We are not kids any more and we are going to get everybody through if we can. I mean there’s no – nothing bad about getting all of us through and getting good grades. What the hell do we care. And so we did all of these disloyal things about working together which the Professors hated.

Miller: Did that come, do you think from your military experience. I mean do you think you would have . . .

Judge: Well it came from – most of us by that time were married. An awful lot of us were married then. And we were now settled down and had to support a family, or a wife anyway, and this was not . . . we didn’t want to play those kind of games. Those kind of games being if you were selected and hired by a good law firm, the starting monthly salary was $25. And, you say, well I can’t live on that. And you say I know it. Your family is expected, somewhere – somewhere you’ve gotta . . . But this is what we do, and then at the end of your first year at a firm you get an automatic raise if you’ve been satisfactory to $50 a month. And then from then on things get better. But that’s what they did in those days. And none of them were married. You couldn’t be married. We tried – a number – I didn’t, but a number of them said to their respective parents “Susie and I would like to get married. If you have been sending me X dollars a month to help out, which I deeply appreciate, and her parents have been sending her an equal amount, or whatever, if each of you would continue doing that it would be much better – we would be much more settled down, blah, blah. And the parents would say “Good-bye.” The standard answer always was, :Look, when you take on a wife you don’t play house. You are going to support between you yourselves and we are not going to be supporting you. That ain’t a good way to go. And so we will continue to give what we had planned to, but not if you’re married, and it ain’t going to happen.” And I don’t know anybody that ever –

Miller: Ever managed to work it out.

Judge: Ever managed to work it out.

Miller: What did you, what did it – what was the living -what was a living wage at that time when they’re offering you $25 a month so that you can have this experience?

Judge: Ah, I know what the standard was when you graduated from high school. White collar jobs here in Sacramento were – my classmates graduated from high school and then went out looking for a job, title companies, banks – banks were big on that – somewhere between $65 to $75 a month, and $75 was big. And you lived on that. My rent in Berkeley – our rent – — was $45 a month, and it was a garden cottage in back, one of those deep Berkeley lots, over a garage. And it had one sort of bedroom and a nice living room and that kind of stuff. And it was one of the nicest places, and that was kind of the going rate then in Berkeley for rent. And I know that the salaries – you lived on your salary – you could do it on $65 and $70 a month with the other expenses. It wasn’t very good, but you did. And then, oddly enough, those were the easiest and best jobs to get because most of them were available. So the $25 you certainly could not live on.

Miller: Well, you’re not paying your rent.

Judge: Right. And you weren’t really expected to. But they didn’t pay any attention to those kinds of things – that most of you were married. And most of us didn’t have any clothes. So what we did was, we would – we had sweaters and we had khaki pants that were Army pants that you would wear and that kind of stuff. And it was just a shock to the Professors. And Stanley Surrey, who came to us from Columbia and then Harvard as a Professor, all he could think of was my God, graduate students started wearing suits. You wore a coat and tie and carried a briefcase. That’s what the students did. And he just couldn’t understand this. And he looked at what we wore – he came to Boalt to teach tax. He was a neat guy, but he just couldn’t understand this whole clothing concept. And the guy that I loved there most of all, he was, he had a blue sweater which had sort of unraveled and big chunks of it were off. And his mother got a piece of cloth and sort of made a sleeve underneath and then sewed these pieces of sweater. I mean we were a wonderfully looking rag tag bunch.

And so I had to write a law review article. And I had one to go, and I had done the Note and the Comment and now I had to do a so- called Article. And I hated to do it because I didn’t have the time. And they assigned me tax. Which, of course, I am brilliant at, just brilliant at. And I think they let me take a subject that was something like uniform allowances and how they fit into the tax structure. Something that was very complex. And so they sent me down to meet with Professor Surrey and tell him that I’d been assigned to write, under his guidance, an Article. And so I – and we behaved like military people and that was the way students behaved. And they called the Professors “Sir” and they stood up and the whole bit. So it wasn’t too much unlike what we’d been used to in the military. And, of course, you were seated alphabetically so the Professor has a chart and he can call your name off the chart. And, so, I came in and I stood at attention. And he said “Good morning.” And I said “Good morning, Sir.” And he said “Are you down here to talk about a law review article?” And I said “Yes, Sir. And he said, “Okay, you’re Summers, aren’t you?” And I said, “No, Sir, I’m Schwartz.” And he said, “Oh. Summers wears the green sweater, doesn’t he?” That was kind of it – the introduction that I was a very important . . . So I thought, “Oh, I don’t like this very much.”

Miller: Now, how many -were there any Professors at Boalt that had a lasting impact on you?

Judge: Oh, yeah. You bet. First of all, we had two brand new ones who were called instructors, which was the lowest level. And they were very – they were very little older than we were. Maybe 4 years older. But they had gotten through just before 1941 and had graduated. And one of them was Ed Barrett who became the Dean over at Davis – first Dean at Davis. And the other was Frank Newman, who was a classmate of his and who became the Dean at Boalt later. And they were brand new and they related far better to the students than the did to the Professors, who were much older. And so they joined our groups of things and they’d come to parties of ours and that kind of stuff. And they were really nice guys. Ah, the Professors that really – I mean we thought McGovney in Constitutional Law and Ferrier in Real Property, that you could never understand but recognized that he was very good, and, of course, Ballantine was everybody’s favorite. A real nice, gentle guy. You could write a law review article under him and he was the most knowledgeable and the nicest and the most accomplished, but didn’t expect anywhere near as much from you as the younger guys who were Grrrr, and go get ’em, and fight. And then, of course, the great character was the one they called Captain Kidd, Alexander Marsden Kidd, who was just a wild man. A nice guy off – outside the classroom. Once he told me that he thought my brains had turned to mayonnaise. I never quite understood.

Miller: Doesn’t sound good, though, does it?

Judge: Doesn’t sound good to me. It does not. But, we liked our – most of our professors and related to some of them very well. I don’t really remember. There was a guy named Bill Laube who was very laid back. Really laid back. You almost had to have a couch for him to carry around. He didn’t really expect hardly anything. He was so kind of nice and gentle and all that sort of thing. I don’t think we really liked very many of the Professors, except of few of them like, I mean, we kind of worshipped people like Ballantine.

Miller: Were you solid in your mind what you wanted to do as a lawyer when you got out of law school?

Judge: Well, I knew what I wanted to do because I had an incredible advantage. I had tried something like 35 major cases when I was in the Army when I’d only had 6 months of law school. Just backwards. But the Judge Advocate General of our Division was nice to me, and he knew that I was planning on being a lawyer, and so he would talk to me. And then he put me on special court martials as a defense counsel first, and then as a prosecutor on the little stuff. And then he just let me keep on going and I ended up as the 40th Infantry Division Chief Defense Counsel. And I was defending misbehavior in the face of the enemy cases with death penalty possibilities, and all kinds of things. And then the soldiers could request a particular person who had had experience to serve as their attorney. And so for a while I was having a blast going around from place to place, wherever the Division was, and defending cases. And the guy that was my nemesis that I defended cases against was an old time lawyer here in Sacramento who was not old time then, but he was probably 6 or 7 years older than I was, was named Ed Boyles. Did you know him?

Nichols: The name is vaguely familiar, but I didn’t know him.

Judge: He was primarily a bond attorney and he was a nice guy and we would travel together and then try these cases against each other. And that was really exciting.

Miller: My, that’s amazing.

Judge: You can learn those things, you know, with somebody kind of telling you and showing you what books to read and what might be the most helpful. Primarily it was evidence – you got a – fairly important . . .

Miller: And fairly arcane if you haven’t had any formal training as well.

Judge: And I knew, I knew exactly that this was the thing I wanted to do more than anything in the world was to try cases. And that’s what I decided early on that I was going to do when I got back when I first got the chance. So, it was really very easy for me because I applied for the DA’s office immediately, and that kind of thing. But it was enormously helpful, and I really did have a running start on most of the competition because I did have the sense of what you were doing.

Miller: And the absence of fear, I imagine. I mean that’s what terrifies most of us. So what year did you start – you came out of Boalt and you went directly to the Sacramento DA?

Judge: I went 2 or 3 months to the 3rd District Court of Appeal as a law clerk because I had not passed the Bar yet, or hadn’t been notified and the DA could not take you on then. And so he didn’t ask me – he didn’t put out the offer and so I didn’t know that I was going to get the offer at all, and I started applying at the State. That was a good place to apply. They were paying $295 a month to junior counsel.

Miller: Whoa.

Judge: And that sounded pretty good to me.

Miller: Better than $25.

Judge: Yeah. Yep.

Nichols: In law school were there a group of people from Sacramento who kind of hung together?

Judge: There were throughout law school, and in the class behind me were Bruce Allen and Henry Teichert – there were a ton of them in that class. Adolph Moskovitz was in that class. And several guys that came here and located with the State. There were just a lot of them, and they were a very close class. And they have reunions every other year faithfully and still do that coincides with either the UCLA and Cal game or the USC-Cal game, whichever one is up here and all that. And they still do it. We’ve had a total of 3 reunions since 1948 when we graduated. We were just – a long time. We’d come back from the War. We were all mixed up. We wanted to get going and get out of there and get into the real world. And, boy, it was no great camaraderie and helping each other along or anything else. It was just help the other guy if you can and get everybody through and let’s get going, and the hell with these nuts that want to sponsor competition to make you stronger.

Miller: We’ve been there. Judge: Yeah. So . . .

Nichols: When you went into the DA’s office who did you work with, and what Judges were you in front of?

Judge: Within a week, the same week, John Sapunor, John Price and I were all hired. That constituted exactly « of the professional staff of the Sacramento County DA’s office. We had a Chief and 5 assistants. So there was a total of 6 people. We all went to lunch together, most of the time in the same automobile. And all of a sudden, 3 of them were gone. Kneeland Lobner left, and John Horgan left, and somebody else left – I’ve forgotten for the moment. And here we’ve got – I do want to tell you that with the Chief and two assistants, and then 3 people who had never even seen the inside of a real courtroom before, crime did run rampant in the streets of Sacramento, I’ll tell you. We just copied things. We’d sit there and listen and we’d come down to the hearings and listen to things. But, God, it was a scream. Trying to get organized.

Nichols: Well, I’ve heard you talk about Al Mundt. Was he in that . . .

Judge: He was the Chief.

Miller: A lot of people tell stories about Al Mundt.

Judge: Oh, Al Mundt. We just idolized Al Mundt. We were scared to death of him but he was the quintessential prosecutor. And he kept track of everything. And he was fierce and dogged, but by God he was fair and he would wash out cases right now if he thought that there was a chance that we had the wrong guy. Whereas a lot of times the DA’s, who are themselves political, would say well, this might be a hot button case so I think I’ll just take it to the Grand Jury – it’s not my fault – and then if they issue an indictment then it’s up to the jury. That kind of stuff. Not Al Mundt. Of course, Mundt wasn’t the DA, either. He was the Chief Deputy. But he would wash ’em out, and then those that he figured were legitimate and should be prosecuted seriously, look out.

I mean he’d come around every day or every couple of days and he’d say “How are you working on that I gave you a couple of days ago?” And I’d say, “Well, I’m having some trouble with it.” “What kind of trouble?” “Well, I got this or I got that.” He’d say “Give me the file.” And I’d say “Why?” And he’d say “You’ll never win this case, you’re not really satisfied in your own mind and you can’t successfully prosecute a case unless you really believe in it. It’s no black mark on you, and I’m not punishing you for it or anything else. If you have a doubt in your own mind, even the tiniest one, you’re never going to prosecute successfully, because it’s tough to prosecute them and you’ve got to have your heart in them, believe me.” And he kept track of every case that he had assigned to everybody. And we would have just laid down and died for him because it was just straight – everything you dreamed about. Never cut a corner. Never fudge anything. Never give somebody a special break because he’s somebody that’s kind of important. And all the kinds of things that you worried about, you never worried about that with Al Mundt. And he was the best boss I ever, ever worked for. And I learned more from him, just incredibly. I rode shotgun after I’d been in the DA’s office two days, he just took me in and I carried his briefcase, and did what research he’d have me do and keep track of things. And just learned. God, I’ve never seen anyone as skillful and as great as he was when he was prosecuting.

Miller: How much old was he than you at that time, do you think.

Judge: I’ll just work backwards. When he ran . . . when he ran for Judge against Malcolm Glenn, he was 52 years old and that was in 19 . . . let’s see . . . I think it was 1968, I believe.

Nichols: Ah. Mundt was, I thought Mundt was on the bench when I came to town in the early ’60’s.

Judge: I’ve forgotten. I can’t remember. But I know – I think he – when I came into the office he seemed a lot older. I mean he had a – that bad limp from polio and he was heavy. But he was, he was just dynamite. He started out as a substitute guard at Folsom Prison as a 21 year old and they took him despite the fact that he was crippled at that time. And so he climbed up to the position of Secretary of the State Prison Board of Terms and Paroles, or something like that, which was the forerunner to the Adult Authority. And he was the top administrator of the entire prison system. And he knew every con, fought with them. And he was just a very tough guy, but he was scrupulously fair, and he just was – you were just frightened to death of him when you went in there because he was awfully good. And he was not very patient. He was very impatient with bad, poor lawyers. And, God, he gave some of those guys just a terrible time. [Text omitted.]

Miller: Who was the first U.S. Attorney – I can’t remember.

Nichols: I don’t know . . .

Miller: We need Shubb here.

Nichols: When I first came here the U.S. Attorney operated out of San Francisco and we never knew or much cared who that was. then.

Miller: This is May 22nd. Same three players. And we’re here for the second session of Judge Schwartz’s oral history. We’ve recapped that we got as far as the DA’s office, we’ve talked a little bit about Al Mundt. And I guess I’ll ask the first question – how long did you actually stay at the DA’s office?

Judge: Two plus years, I think. I started in January 1949, and that was the day after I was admitted to practice, and left in February 1951 to go out into private practice on my own.

Miller: Was that common in those – we know now that at the DA’s office and the U.S. Attorney’s office, people stay for an entire career.

Judge: They do, but when I was there, the District Attorney, who was John Quincy Brown, and that is a story all by itself because he was really John Quincy Brown, III, but everybody of course called him Senior of course because he has a Junior and a grandson, and they were all John Quincy Brown’s and they take different numerals, depending upon which phase they’re going through. But this was the Third John Quincy Brown, who was a generation ahead of me.

And he came in to the office when I first was sworn in and said “I do not encourage young lawyers to stay very long, a couple of years is about all that I think makes sense. And,” he said, “that first couple of years the young deputies work very hard, they’re very eager, they’re willing to work all night to get the big cases. But as they go along they get tired and somewhat burned out by the volume of cases that they have to try, and they realize that their salary goes on, it doesn’t get any better, and there’s no room for promotion, because,” he said, “my office has only one Senior Deputy which is Al Mundt,” and I think that was all. And then we were allowed one pay raise as long as we stayed there unless the whole salary schedule was modified.

And so I knew that I was there, and he was not encouraging me to stay, and, then, as a matter of fact he then consulted me about another opening that came up that very same week that I was sworn in. And he said, “I’m talking to you because I figure you’ll be the longest one of the deputies that’s in the office and you have the longest time here from now on, and so I’m very much interested in your views about who it should be.” And that sort of thing. And that’s when I got John Price a slot by recommending him. And I had just obtained, or helped obtain a position for him and he actually went to work for the Third District Court of Appeal as a law Clerk. And I, I became the law clerk of Rolfe Thompson. He was a wonderful man. And I talked about him last time. And he did not want to have a law clerk and never had one. Justice Paul Peake was a nice man, and he said, “There’s no reason why Rolfe Thompson can’t have a law clerk. And you need a job. And so,” he said, “I will persuade him that he needs a law clerk. And so I went to work for him and lasted two months, and then the Bar exam results came out and I got the offer from Quincy Brown and, so, when I came over there right after that, very shortly after that, he told me about another vacancy that had just opened up. And so, he said, “Who would you recommend.” And I said, “Well, I happen to be a very close friend of John Price and I think he’s very, very good.” And he asked me about someone else and I said, “I know him slightly, and I like him, but I happen to be partial.” And so Quincy then told me that he was going to offer the position to John Price.

And I called John Price, and he said, “Now how do you plan to get me out of this one – you just sent me over here to the . . .

Nichols: The Court of Appeal?

Judge: No. This is the one . . . a Deputy DA, a Deputy Attorney General, and they were hiring. They were the ones that I mentioned – they were hiring at the best price that I knew of which was $295 a month. So when I gave his name to . . . well he just cancelled and he went over to Justice Annette, Presiding Justice Annette Abbott Adams, who was the Presiding Justice of the Third District Court of Appeal. And when I went in and told her that I was leaving because I’d been offered the position over at the District Attorney’s Office she was very unhappy. She said, “You know, two months. And we spent a lot of time going through the materials and helping, and I had no idea that you were going to leave this fast.” And I said, “I didn’t either.” And I really didn’t. And she said, “Well, the least you can do is get us somebody else to take your place. And so I said, “Well, I’m thinking of a young man who has just gone over to work at the, at the Attorney General’s Office, but I think he would prefer this position.” Which, translated to myself, personally, was this one pays more money than the one over at the AG’s Office because it paid $325 a month instead of $295.

And so I told Jack Price and he said, “Well, having just accepted the position over at the – before Justice Adams I haven’t even spent a day there, because it was Friday, and then the weekend came up, and I was supposed to report for duty Monday morning, and now you want me to come over to the District Attorney’s Office.” And I said, “Yeah. I didn’t help any did I?” And he said, “No, you sure didn’t.” So the next think I knew he said, “Well, I am bloody and bowed after listing to Justice Adams, who didn’t approve much of what you and I both have done,” but he said, “She finally said do what you think you have to do. And so he came over then and was sworn in. So he went, I think, from a couple of days in the Attorney General’s Office to being accepted for the position as a law clerk for the Third District Court of Appeal, which he never actually showed up for, and then came over to the DA’s Office.

Nichols: And at a cut in pay.

Judge: No. The DA’s Office was even more. That was, as far as I know, was the highest paying brand new lawyer job in public service around, and they paid – my recollection – I know what they paid. They paid $375 a month. So Price went from $295 to $325 to $375 in about two days.

Miller: How many cases a year did you try in your two years.

Judge: I know I tried over 50. In my first two years. They just came so fast. And there were times when you’d be making an opening statement on a new case as a prosecutor and waiting for the jury to come in on your last case that just went out. I mean they came fast.

Miller: Kind of like how we used to Judge around here before all the new Judges came.

Judge: Oh, yeah. And it was a – it was the best experience I could ever possibly have had. Because there were only 5 deputies and the Chief, that meant the whole professional staff was 6 people plus the DA himself. But the DA himself was over civil as well as criminal. So he had a office set up of 2 or 3 lawyers and he ran it. And then the County Counsel position was not created until a number of years after that. So Quincy Brown oversaw and handled both offices and had a Chief Criminal Deputy, which was Al Mundt, and a Chief Civil Deputy, which was a man named Bill Greene. And he stayed there – Quincy stayed there until he was appointed to the Superior Court. Can’t even remember when, but it was a pretty early appointment. He became the fifth Judge on the Court without having to have a vacancy open up. They created a new – one more position.

Nichols: Now, when you were a line Deputy, the other line Deputies were Sapenor, and Price, and there were a couple of others.

Judge: There were two others that were senior ones. There was Ed McDonnell, who was a very able, able man and a very good man. And he stayed there until he became . . . no, I’m wrong. He moved from there over to the Public Defender’s Office. And he was slated, really, to become the Public Defender, but then he became ill and had to take a leave of absence. And so then he came back and he simply remained as the Chief Deputy in the Public Defender’s Office until he retired, mostly because of physical illness. He had bad asthma and he just wore out. The other senior experienced deputy was Oscar Kistle. And Oscar Kistle stayed there until, oh, uh, he stayed there until Jack Price ultimately became District Attorney and then Jack Price hired him to become his – hired him back from the [text omitted] Public Defender’s Office to become Price’s Chief Deputy. And he stayed there until he was appointed a Municipal Court Judge.

Miller: Do you remember how to spell Kistle?

Judge: K-I-S-T-L-E. Oscar A. Kistle.

Nichols: How had you come to know Jack Price?

Judge: Well, we actually – I really got to know him in law school. He started out the year, I think the year before me in law school at Boalt.

Nichols: Before the War?

Judge: Yes. And then he was pulled out and went into the Army Air Corps and then he came back up and he ended up, I don’t know quite how, but he ended up in my class, although I think he started the year before and maybe was out longer during the War. But I got to know him. He was a local boy, but he lived in Natomas, and his father was employed by the Natomas Company. And I’d never got to know him until we were in law school after the War and then found out – and then we just became good friends and he came back to Sacramento and so he was just one of three or four people that were close friends and classmates, and such things.

Nichols: Now you alluded to Presiding Justice Annette Adams. That was back in the days when women in the law were not very common. How did it come about that she almost uniquely for that time acquired such an exalted position?

Judge: I don’t know, really. I had never heard of her, of course, before I went to work there. But my father’s brother, who was a senior partner with Loeb and Loeb in Los Angeles, we were very close to because he and his wife had no children and my father, of course, his brother, had died when I was very young and they sort of adopted us because they didn’t have any children of their own. And I was named after him. His name was Milton Schwartz. And he knew – he went to law school with Annette Adams. And he told me stories about her. And they are wonderful stories, but there’s not much point in telling them because I’d immediately have to black them out. But she was something else. She was an English teacher, and that’s the way she started. And she was a stickler. And I was terrified whenever I was called in to explain to her memos that I had written. And I came in one day, and was doing, I thought, the kind of job I was supposed to be doing, and she turned her head like she was sick to her stomach. And so I looked down and she said “You realize young man that you ended that last sentence with a preposition, don’t you?” I did not notice that. And she said, “Please notice it after this.” But she was tough and she and Justice Thompson, that I worked for, did not speak. Literally did not speak to each other. And there were three Justices. And they’d have meetings to talk about the cases. And sometimes we would be sitting in on the meetings and she would say things like, uh, she’d turn to me, or whoever was in the room, and say “Will you tell Justice Thompson that I think we should do so and so and so” and there were just the three of us in there. But they did not speak to each other. And I never – obviously no one every told me why, but they obviously had some kind of falling out, and I think it may have been – yeah, I’ve heard over the years it was because Justice Thompson expected to be appointed the Presiding Justice and, I don’t remember who was the Governor at the time that Annette Adams was appointed, but she was.

Nichols: So not only did he not get it, but a woman got it over him.

Miller: That had to be painful. Nichols: In those days. Justice Peake, I take it, was the Third Justice?

Judge: Yes, and he did the talking in between. He translated for each of them in private meetings. He was a very funny guy and he was a very nice man and – but for a long time there was just the three of them and Thompson didn’t have a law clerk. He typed things with his little portable typewriter. You know a little manual typewriter, and he’d type out – my only real recollection of him was that he was a kind, decent, able person. But he, but I never understood what I was doing a lot of times because he’d call me in and talk to me about the case and then I’d go out and write the memo and I’d cite all the cases that I thought were particularly significant, which meant almost exclusively Cal Supreme Court cases, because I figured that all the Districts frequently disagreed with each other and that sort of thing. And so I would do that and he would look at the citations and say, “I don’t notice X versus Y you’ve in here.” And I’d say, “I’ve forgotten that exactly.” And he’d say, “Why don’t you look at it.” And then I’d notice that his name – he wrote it. And I realized that he wanted to cite his own cases in preference to everything else but he didn’t say that. And it took me a long time to realize that he really only wanted his cases if possible in there. But he was very, very nice to me. And when I went in and told him – I was nervous about it, too, because Justice Peake had worked on him to take me on and round out the court staff and I didn’t think he’d appreciate it very much. But he was just as pleased as he could be and he said, “That’s the way I started.” And, he said, “I became District Attorney of the County up around Napa – I forget which one. It may have been Napa County. I don’t think so, but it was in that area. And he started out as a Deputy, and then became the DA, and then was appointed to the Superior Court bench, and then elevated. And I think he thought that District Attorney was the best job any lawyer could have if he wanted to try cases. And so he was very pleased and he said, “The only thing – only cautionary note I might make to you is that the head man over at the County, Sacramento County, is an immensely able man, but he is a very, very tough boss. Very tough.” And, he said, “He’s good. There isn’t anybody any better. But he might be very difficult to work for.”

[Text omitted.] And so I was very frightened when I went over there of Al Mundt, because I didn’t have that much self-confidence and I was very worried until I realized not long after that that he was the best boss. All you had to do was to work hard and faithfully and he was the best boss you could ever possibly have.

Nichols: Now, did your experiences working for General Mittlestadt, perhaps, benefit you in being able to survive a demanding boss of that type.

Judge: I can’t remember ever those two personages in my life I’ve thought about. I do know, maybe, that I was not that comfortable and that sort of thing, but . . .

Nichols: But you learned how to deal with it.

Judge: Well, I didn’t have to learn how to deal with it. He was so easy to work for. And it wasn’t just easy for me to work for. John Price and Jack Sapenor just loved him. And all three of us would just go to the mat. And Oscar Kistle and Ed MacDonald – all of them. Everybody just felt he was the ideal person because there were never those little things favoring lawyers that the DA wanted to take care of politically, and be especially kind to them when they came in with a case, and that sort of thing. And we learned the difference between a really, really squeaky clean boss with Al Mundt. He didn’t have any of the weaknesses that you worry about. Well, am I going to have to make special favors to this person or that person. None of those things.

As a matter of fact we used to wait and watch who could find out first, but once Al Mundt decided to drop charges against a defendant who had been charged by one of the law enforcement agencies, and a complaint had been filed in the Municipal Court, and then we got it, and Al Mundt would look into those – every single new case – very carefully. And the minute he decided it was questionable and the case was a fair one, he would dismiss it. He said, “I’m not going to make these people go through that just so that I can say, “Well, I did everything I can.'” He knew that he should never take a case to the Grand Jury because he believed that was a cop out also, to shove them up to the Grand Jury. And so he took them. And when he decided on his own that a case should be dismissed, he would race over to the police station – or the County or City Jail and with an order releasing the man before his lawyer could get there and charge him a big fee. For getting him turned loose. Mundt would turn him loose first.

But it was a great, great experience and I’ve never – of course I was very young then, but I don’t think I’ve ever seen a man, or a person try a case as skillfully, prosecute a case as skillfully, as I watched him do and I was able to sit with him through two or three cases and they were big ones. He wanted us to learn by working, and doing work, carrying the brief cases, and running around and doing little researches, and I just have never seen anybody that I thought was better than Al Mundt was. I suppose when you get up in the high elevations there are a number that are very, very good, but he was a wonderful person to work for.

Nichols: Of the cases that you tried, did you – were they all over the lot in terms of subject matter, or did you ultimately veer into any area of specialization?

Judge: No. And, uh, we were given – it was protocol that if the case happened to fall on my watch for some reason I kept it. And what that meant was that we alternated, we rotated, and each one of us was on duty at night and on weekends for 10 consecutive nights. And then we were off duty. And when I knew that I was going to be leaving and going out on my own, I started volunteering for all of the night and off duty stuff so that I could get publicity before I left. And of course, in this district you got a huge lot of publicity – this was a small town. And the big major murder cases and those kinds of cases all seemed to break and night. And it was exciting because you’d get an – there was no Dorado or Miranda or anything. You grabbed the defendant as fast as you could grab him and you started asking him questions. And the only interdiction on what you did was – and it was done very carefully at the preliminary hearing. You’d put on the deputy – you’d put on the police officer that effected the arrest. And he would have brought the person in. And you’d say, “When you talked to the defendant the first time were any promises of immunity or reward made to him?” “No.” “Was he threatened in any way? Was any there any duress?” “No.” And you went through three of our things and the witness would say, “No, no, fine, no.” And then it would pass through the committing Magistrate who would find that there was no duress. It was pretty easy.

And so Al Mundt’s instructions were, “Whoever is on duty get to the defendant immediately, the minute you get a phone call from the jail that a man is in custody, a person is in custody, get over there as fast as you can and take a statement, because if you get the statement right off the griddle he will usually make up a story and then be stuck with it. And when his lawyer gets in his lawyer will say, ‘What in the world did you do that for?'” And usually he was ashamed of something – the defendant was – and I learned about that afterwards and it bothered me plenty before Miranda and these cases came out. And that is that I felt that, in retrospect, that a number of defendants might have been out with some lady other than his wife and had to make up some kind of a story to avoid that one coming out, or may have been doing something he shouldn’t have been doing but didn’t have anything to do with committing murder, or whatever it was. They were terrified and they started thinking about how they would respond to questions.;

But I tell you that I picked up one of the transcripts of a case – a case that Al Mundt told me to try. And he said, “I’d like to have you try this case and do the best you can with it.” And I was very excited. And I took the transcript home of the statement that Al Mundt made to the – in those days there was a liaison with the DA’s office who was a police officer and, full time, and he’d bring prisoners over and pick-up the prosecution when the DA’s office said to pick it up. And he was, in effect, the DA’s investigator. And so I sat down at home one night – it was kind of late – to read the transcript of the statement made by the defendant so that I would know what I was putting on before the jury.

[Text omitted.]

Nichols: But I want to digress here for a minute. I have heard you tell a story attributed to Al Mundt about Nat Colley. Do you feel comfortable repeating that story?

Judge: I’m trying to remember it. I remember how mad he got at him in a trial of a serious murder case. And he got absolutely furious with Nat Colley, and Nat – I think that the defendant had confessed. And then Nat Colley talked to him, and then the defendant recanted later – his confession. And Al Mundt was sure that he’d been not only coached, but directed, as to what to say. And so in making his rebuttal argument Colley of course talked a lot about the recanting, and can you imagine what law enforcement did to him before when he was naked, and didn’t have a lawyer, and so forth. And Mundt was enraged at the things that Colley was accusing the department of doing. And so he said something like – “You’d say anything if that man was in there yelling at you, telling you what to do. Just look at him. Those alligator teeth just snapping.”

Miller: Well, for our distant future readers of this transcript, we should define that Nat Colley – was he the singular black lawyer of note in Sacramento?

Judge: He was certainly the singular black person. There were a few around but they were low profile and not very aggressive and they got along well with law enforcement because they didn’t overstep their bounds, as it was. But Nat Colley took it all on.

Miller: Colley was still around when I came to the court because I can remember him arguing the constitutional issues in the late 70’s. He continued to practice until . . .

Judge: Until he died.

Miller: In the mid-80’s I think he died.

Judge: I think so. He got into trouble a number of times and, unfortunately, at the worst possible times. He lost out on a sure Ninth Circuit Court of Appeals appointment right when he was accused of overreaching with a witness and coaching and doing various things. And then the next time he was really on his way to the Cal Supreme Court and he got caught and prosecuted – well, Jack Price threw it out and said “I have no reason whatever to believe it’s not true, but I also know that if he had not been black and the young lady white, nobody would have made any kind of a big deal out of it.” Because people did these kinds of things. But he took a 17 year old girl across State line for immoral purposes and got . . . Price was great about those kinds of things. He would not prosecute because, he said, you know, no white person would have been prosecuted in those positions, and imagine how many Legislators were doing those kinds of things, and everybody else. But Nat was black and they were not going to stand for that

Miller: And a thorn in the side of law enforcement to boot.

Nichols: Yes. Nat was not only black, but an aggressive black.

Judge: Oh, yeah.

Miller: Did you ever try a case against him?

Judge: Yeah, I sure did. It was awful.

Miller: I can remember Judge Wilkins – I think Colley argued the Proposition 13 busing issue and Judge Wilkins had resolved before we ever went into the courtroom that it was an abstention question. And I expected him to just do that. To say, “I’m sorry you’ve wasted your time here, but . . .” and he didn’t. And I was kind of surprised, and there was some interruption, and I went up to the bench and said “Have I confused you with the bench memo?” He said, “Oh, no, but I never miss an opportunity to let Mr. Colley make his argument.” He said the press is here, they all expect it, let’s listen to Mr. Colley and you’ll learn something. And Nat Colley did this wonderfully impassioned argument knowing all the way through it that there was going to be an abstention issue. But, you know, very aggressive, very flowery, very loud – just a wonderful argument.

Judge: And he lapsed into colored . . .

Miller: Jargon? Absolutely. And he could go to the high end of the spectrum and to the very lowest in a single sentence if he wanted to. He was amazing.

Judge: [Text omitted.] Yes. My . . . I made a lot of mistakes in the case that I tried against him, because – in the major case that I tried, and the last case that I tried, it was a condemnation matter. And he was representing the property owner and he didn’t know any more about condemnation or eminent domain than I know about nuclear physics. He knew nothing. He just went by the seat of his pants. And I had an appraiser who testified. And of course they testify that they’ve testified for both sides, both the property owner and the government. And “I take cases, you know – I’m an independent appraiser.” So, after the first recess, he gets him on, the appraiser on cross-examination , and I still remember today. He says – in dialect he goes, “What – What did that mean independent appraiser? What did that mean by that?” And the jury is looking. And the witness said, “It means that I’m not employed by anyone, but I’m in business for myself.” And Colley said, “Does that mean that you appraise for other than the Government?” “Yes, absolutely.” And he said, “If I came to you first, you’d appraise for me?” “I certainly would.” And he said, “Well, I been noticing during the recess that you sitting there at the counsel table with Mr. Schwartz. He’s the lawyer on the other side, isn’t he?” “Yes, he is.” “And you leaning over the table and you whispering in his ear. You whispering and whispering in his ear.” And, he says, “I didn’t realize.” And Colley says, “Well, I really don’t care, but why don’t you come whisper in my ear?” That kind of stuff. It doesn’t go anywhere – it just gets the jury laughing. And then, you know, once you get the jury laughing at you, you’re dead. And those are the kinds of things that he did and he was really just kind of flying by the seat of his pants.

When he made his closing argument, I got very angry with him. Because he’d dreamed up a theory of appraisal that nobody had ever espoused. He just made it up. And he was explaining all this. And I was so angry, and so I did just the wrong thing. I said to the jury, “Mr. Colley is telling you about these appraisers, and what they do, and I never heard of anybody adopt a theory of appraisal like that.” Of course, then, when I sat down I was very angry.

So Colley gets up. “I hear about this Mr. Schwartz all the time. My wife, she went to grammar school with him. He’s so smart – he’s so smart.” And I’m thinking, “He’s gonna get me.” “I know he’s smart. I know that from her. But I didn’t know he was that smart that he knows what every appraiser – what every appraiser in the world would say.” He’s running around the room. And you just know – I’ve been had, I’ve just be skewered. But he could really do it to you. Wow.

Nichols: When I was in the U.S. Attorney’s Office, it was an unspoken rule in a case that Nat Colley was involved in that if you were going to have a chance at him beating you beat him on the first day because he would come into court never having looked at the file, not knowing what the case was about, and just seat of the pants it. And the longer the trial went, the more opportunity he had to learn what the case was about, then if he ever learned what the case was about you were dead!

Judge: He was a formidable opponent.

Miller: Now you said you went out on your own into private practice, correct?

Judge: Yes.

Miller: Criminal or civil?

Judge: Anything that walked in the door. Um, I thought I was going to be doing selective, selected matters. But when you sit there in the office any warm body that walks down the hall you’ll grab him. So I took virtually anything that came in that had any possible credibility and I’d figure out a way to collect the fee later. But I just as well might work on this one, it seems to be a credible case, and that sort of thing. And I lived to regret that because I’d only been in practice three months, maybe, when my wife came down with polio. And in those days we were all terrified of polio. All summer long we lived in that fear. And she came down with it and she came down to where she was in the hospital for a month and then in a wheelchair for the better part of six months. And, so, I was really scrambling then. And I was, oddly enough, beginning to get a few cases that were legitimate. And I was so bogged down with this junk that I had taken in and said I’ll figure out how to do it and I could never get rid of those cases.

Miller: We still can’t get rid of those cases, Judge.

Judge: Right. That’s right. Then I knew what a terrible mistake I’d made. You don’t take cases that you don’t feel really are worthwhile and that the client can really pay. And then, once you do take them, you get mothers and sons and relatives that say go see my lawyer, and that sort of thing, and then you have a really difficult time.

Miller: Did you have any children, then – at that point?

Judge: Yeah. We had children two and three years old when Barbara got hit. She was up at Lake Tahoe with one of our law school classmate’s wives who had two children. Her family had a home up there and so she invited Barbara and the kids to come up. It was – that was a rough time.

Miller: Now we know that it was probably legal climate at that time – we know about Downey Brand. Was it Downey Brand and Seymour at that time?

Judge: It was Downey Brand and Seymour and then very shortly after that it became Downey Brand Seymour and Rohwer – they brought in Otto Rohwer and that was the name of the firm.

Miller: And that was the firm that represented your mother and your father at various times.

Judge: Yeah – well, my grandfather.

Miller: Your grandfather; I’m sorry.

Judge: And when my grandfather . . . actually, almost everybody in town, people that were merchants and business people were represented by the Diepenbrock Firm. That was the granddaddy. It started out as Devlin and Devlin, and the two Devlin brothers were very famous in water rights and property and that sort of thing. And then they grew and became Devlin and Devlin and then it became Devlin, Devlin and Diepenbrock. Diepenbrock, A.I. Diepenbrock, was a very young lawyer that joined the firm and then became, ultimately of course, its senior person. And lots of law firms were spawned off of the Diepenbrock firm, and one of them was Downey Brand. Clyde Brand had been a classmate of my mother at Berkeley and he’d been a friend of the family, and so my grandfather said one day, “I don’t see why we all automatically have to take all of our legal work to the Diepenbrock Firm. They’re a fine firm, and I know that, but other people can be good lawyers too, and I think that Clyde Brand, from what I’ve seen of him, is somebody worth helping. And he can use some help, I think, so he said, “I think I’m going to transfer my work to Clyde Brand.” Which he did.

Miller: How big were the firms in those days?

Judge: Very small. When we – McDonough – went out, there were just four of us and Bruce Allen used to say “I’d rather take on and compete with two firms than have to compete with 200 two and three person offices. And at that time, in the very early 60’s, lawyers used to get together to share office space, and they had different kinds of arrangements, but usually – sometimes they became partners, sometimes one person owned the firm and didn’t want to give up any of the decisions, but would cut them in on a share, an income sharing basis. And the only other firms I knew of when the McDonough firm formed in 1953, were Diepenbrock and Downey and then there were two insurance defense firms that did almost exclusively that – in fact they did do exclusively that. But there were no other general practice firms that tried to cover most of the bases that I can remember.

And that’s why Bruce Allen was out – he put together our firm by going around and picking people that he thought might help a fledgling firm, whereas almost everyone else made the same mistake that all the rest of us did. And that was, if you like someone and you work well together, go into business together. And Bruce used to say “All that does is appeal to exactly the same clientele, so you’re cutting the business in half almost automatically. And, in addition to that, you’re not expanding your abilities and your talent because you’re both doing the same things and your only qualification for going in together is that you like each other and you want to work together. And that’s not a very good basis for starting a firm.”

And Bruce was very farsighted in that. Because he worked for Downey Brand and he tells his story that after four years he went to Clyde Brand and said, “I just wanted to ask you if you knew when you might be considering me as a possibility for partnership.” And Clyde was quiet for a minute and Bruce misunderstood him, I guess, and he said, “I don’t mean to be pushing or asking a difficult question.” And Clyde said, “Oh, no, no. The answer is easy. I was just thinking about it. The answer is never.” And Bruce said, “Oh.” And Clyde said, “Your work is excellent and we’d like to keep you, and we like what you’re doing here, but we’re not going to make any more partners. We’ve got too many partners already. Never should have taken in Jack Downey.” And the reason that Jack Downey was taken in was that his father had said that. “if you don’t take him in and make him a member of the firm I will give him my interest, half of my interest in the firm, and there isn’t going to be much you can do about it.”

So, by that time there was Downey, Brand, Seymour, Rohwer and Jack Downey. That’s all there was. And they were vying with Diepenbrock as the largest firm in town. That’s about the extent of the size of the office. Until we came along with a four person firm, and then two years later amalgamated with Holland and, because we found that we needed tax. Because all the business people, the transactional lawyers that we used to call office lawyers as opposed to the litigators, they wanted tax people. They didn’t want to be pushed from one firm to the other. They wanted an all purpose firm that could handle virtually everything.

Miller: And you didn’t want to learn tax, Judge?

Judge: Ha, ha, ha. I thought that I knew most of that.

Nichols: Judge, at some time back in this time frame, I have a recollection that you had a visit up in Plumas County. Would you tell us about that?

Judge: That was certainly, for Northern California, was the most publicized case that anyone was aware of. The name of the -two of the defendants – and they picked up in proper name, what was known as the Santo-Perkins gang.

Miller: Now were you alone at this point, or were you with a firm at this point?

Judge: I was either alone, or I had just started – we were just starting. Because that terrible crime took place in 1952 in Plumas County. The reason that I say it was a misnomer is that everyone thought and believed that this was a huge gang that ran around the entire State terrorizing people, but it really wasn’t that at all. It was just two people – Jack Santo and Emmett Perkins — professional crooks, but they didn’t terrorize, murdering and torturing and threatening. They just plundered and they had friends all over the State.

The case that got the most publicity – it had a woman defendant named Barbara Graham. And that murder took place in Pasadena. And Barbara Graham was with Santo and Perkins – they would go from place to place and they would pick up friends that were delighted to go with them on various things. And three big cases that were prosecuted were the one Pasadena, and a woman named Mabel Monaghan who they thought had unlimited resources and money. And they were wrong, but they broke in the house and they couldn’t find really anything and it was awful and they ended up killing her. And Barbara Graham was part of that. Many years later Hollywood made a movie called “I Want To Die,” and Barbara Graham was featured in it. I didn’t ever go see it. It was highly fictionalized, of course.

The second case that was tried was the one arising in Nevada City. And, I can’t believe it, but I’ve forgotten the name of the man that was killed there. And then the third one was the one in Plumas County. In Plumas County they wanted an outside prosecutor. What they were getting was a lawyer named Tom Martin who’d been very active and was high up in the State Attorney General’s Office – yeah, as a matter of fact he was the U.S. Attorney in charge of the Sacramento office before 1967. And so everybody around here knew him quite well. And so before that – no after that he went to the State and Plumas decided that they didn’t want the Attorney General’s Office, the State Attorney General to be prosecuting, so somebody recommended me to prosecute that case. And that was a very exciting time.

I was hired in 1953 and I spent almost all of my time up in Plumas County working at unfolding, unraveling the case, and getting it ready for trial. And it was a circumstantial evidence trial. There was no real eye witness or . . . I think it was beautifully investigated. It took 17 months of full time several investigators from the Department of Justice.

So I went over and asked for an interview with Pat Brown, who was the Attorney General. I had never met him. But, one on one, he could be the nicest, no baloney, no fatuousness – he just talked. And he said, “Why are you consulting me on this?” And I said, “Because I know that you can furnish, and have been furnishing, prosecuting officials to the County – to the particular County, and for some reason Plumas County wants to hire an outside special prosecutor. And I would like to be paid for my time, and they are willing to do that, but the thought occurs to me that if the Attorney General says that we are furnishing some of our best people you can trump me very easily by saying ‘No gifts of public funds on my watch.'” And he laughed. It was so refreshing – Pat Brown – he said, “I have to stand for election in a year. And this is a red hot potato of a case – this whole case and all this stuff. And I would be delighted to have you take it over and I don’t have to worry about it, and I will help you any way I can.” And he said, “What would you like?” And I said almost anything because I really need help on research and legal work when I’m up there, and I don’t have anybody. And he said, “I’ll give you the two criminal -” He had two criminal deputy DA’s here prosecuting at that time. Gale Strader and a woman named – I’ll think of it – Doris Maier — but . . . and both of them called and said, “You holler whenever you want anything, get on the phone and we’ll do this and whatever.” And Pat Brown said, “Anything else.” And I said, “Yes. And this is personal. And I’m not criticizing Tom Martin, but I know that he has offered opinions that he believes that Harriet Henson, who is a defendant in this case, and who I’m after – because the other men had been convicted twice; once in Los Angeles and once in Nevada City – and this is the only case that Harriet Henson is involved in that we know about in her life, and, for whatever reason, Tom Martin believes in her and believes she is innocent. And all that I’m asking is that you give me a fair shot at it, because if the Attorney General is quoted as saying he has confidence in her innocence and that sort of thing, I don’t think I’ve got a chance. I just want a running start.” And he said, “That’s easy.” And he pokes the phone and says, “I want an order out that nobody in the Attorney General’s Office is to talk about this case, give any opinions, or any interviews, or anything else. This case is being prosecuted by an outside counsel, and the Attorney General’s Office is assisting him in the work he needs in the investigation.” He did everything – every promise was kept. Just such a nice man, and it was all whatever – he’d just tell you up front.

And so I got a fair shot at it. And they were enormously helpful. And, it was – I was up there three months but it was a six weeks trial. And the jury, as I said, I didn’t care about the men – of course you always want to get as many convictions as possible in case anything goes wrong – but mainly I insisted on including the men so that they couldn’t shift the blame somewhere else. The absent defendant kind of thing. You had to get everyone in there so they won’t be shifting back and forth. And that jury was going to hang, and then finally they came in with a verdict of first degree murder, but life, and not death. And the two men they came in with first degree and death. And the man who hung the jury – who almost hung the jury – told me afterward that “You know, I did a lot of thinking about this, because I wanted to vote for ‘Not Guilty.’ But, you know, you’ve got 11 people in there who are absolutely sure and they want death on her. And I figured I might be wrong, number one, and number two, she might not have as loyal an advocate as I have been for her because I have just not been convinced that she did it. And,” he said, “I finally agreed that if they would come down on her to life, I would come up from not guilty to first degree and life.”

Miller: You almost don’t want to know those things, right? Judge: Well, you – She’s not going to get off that easy next time. But not really. I still think that the proof was not great enough for reasonable doubt.

Miller: So you had two death penalties and life in that case. Did you ever do any other death penalty cases?

Judge: Never.

Miller: Were those men ever executed?

Judge: They were, but there were executed on the earlier case.

Miller: So you didn’t have to go witness as the DA? Okay. What about her, what happened to her?

Judge: She got out – I can’t remember how long she stayed in, but she did her however long. I think in those days you got out on parole in California was I’m thinking maybe 12 years or 15 years or something like that. You know we really didn’t have one living thing against her as a record. She had never been arrested for spitting on the sidewalk. Nothing.

Miller: And nothing afterwards?

Judge: Not that I know. She never surfaced again.

Miller: Let’s go back to the formation of your firm. You mentioned that it was Bruce Allen that had the idea. And you were the first to join him?

Judge: Well, he went to Henry Teichert and Martin McDonough. Martin McDonough was a public agency – I don’t know if you’re familiar with his name at all.

Miller: Oh, sure.

Judge: Well, Martin was with SMUD for many years. And Stephen Downey started working with Martin because Downey represented SMUD as outside counsel and he kept relying more and more on Martin. And finally he talked Martin into leaving SMUD, and Martin said, “I have a family with three kids and I’m kind of nervous about that.” And he said, “We can guarantee you — I can guaranteed you at least as much money as you were getting from SMUD now and it should be a lot more, because I’m going to associate you to work with me on every case they have me do. I’m getting tired and I know what you can do.” And so, Steve Downey talked Martin into leaving and going into private practice and then pushed him in with his son in law because Bruce – I mean Henry Teichert was married into the Downey family and was Mr. Downey’s daughter’s husband. And so they formed a two person, kind of a sharing basis, I don’t exactly what their basis was but it was just the two of them.

And Bruce Allen was with Downey and he thought Steve Downey was the greatest lawyer he’d ever known or seen and so everyone loved Stephen Downey. There just wasn’t anybody who didn’t. And so Bruce knew that Henry Teichert was a very bright guy. He was in Bruce Allen’s class at Boalt. They were the year behind me. And Bruce thought it would be just wonderful to talk both Martin and Henry Teichert to join with a larger firm where they’d have more diversification and that sort of thing. So, they ultimately did. I guess Steve Downey helped prod Martin McDonough into – because Martin was a loner and he was self-sufficient in his law practice. But then he came and we just, Bruce just figured that Henry Teichert would do the business, general office, practice, and Martin would do his power – public agency and power work that he could do, and he, Bruce, would be working on real estate and kind of a generalist. And he tapped me because I was the only one he knew that had had substantial trial practice because of the two plus years at the DA’s office that was a lot of trial.

And so we formed that kind of rag tag firm.

Miller: And what was the name of the firm at that time?

Judge: At that time it was McDonough, Schwartz, Allen and Teichert. Which was just a seniority name. And people used to – I guess Henry Teichert said, or somebody said [singing to “My Bonnie Lies Over the Ocean”] “McDonough Schwartz Allen and Teichert . . .,” they’d sing that. So that was the name of the firm then. And then two years later we amalgamated with Al Holland and Felix Wahrhaftig who were almost exclusively tax, and things growing out of tax, which would be corporations and partnerships. But they were getting a lot of flak because they had very good clients who didn’t want to be shoved from one place to another. Over to me for a domestic relations case, over here for something else. And so they were looking for somebody that would not swallow them up. And by that time they had an associate named Paul Berg. And so there were three of them and four of us. And we thought they won’t swallow us up and we won’t swallow them up. We’ll just amalgamate and both be able to keep our identities. And so we did, in 1955. And then we were really trapped because there were too many names. And everybody thought his name ought to be in it. And so a couple of us thought why don’t we take – like O’Melveny and Meyers – and just take – Cromwell and Sullivan. There were a lot of firms with just two names and then they never changed those names. And so we thought that was a great idea. And so we took the two senior names which were McDonough and Wahrhaftig as the ones with the longest practice in the two firms. And we kept it as McDonough and Wahrhaftig for quite a while until . . .

Miller: Not terribly melodious, however.

Judge: No, not melodious. And so, one or two partners would say, “You know, I’m kind of in trouble with my wife. She didn’t know why my name isn’t in the firm. I was one of the founders of the firm, and why isn’t my name in?” And we’d say, “What would you like to do,” and he said, “Why don’t we put them all in?” So for a while it was – I think we had five names because by that time Henry Teichert took what he thought was a leave of absence – I think in 1955, and he said, “I’m going to leave my investment in the firm because I want to be able to have a place where I can come when we get things squared away out at the Teichert Company.” And he left to take over the Teichert business which was amazing because he had not been trained for that. His brother was trained for that, and the older brother died of cancer, and when Henry’s father died, the firm started to have real troubles. And so Henry said one day, “You know, I’ve got to – the man who was the heir apparent and whom my father picked and had the most confidence in did a wonderful job as long as my father was alive. Although he was retired he was the Chairman of the Board, and – but just the fact that he was there and could be consulted was enough. But the minute he died it just started going to pot.” And Henry said, “We can’t have a firm of this age just die and I’m going to have to try to do what I can and if I can’t do it, we can’t do it, but I’ve got to give it a try.”

And so he got immersed in it and never came back. Never would let us give him his contribution – partnership contribution – because he always said, “Someday I might want to come back.” And he’s now 83, I guess.

Miller: You know, that reminds me. In our first session you said that as far as you were concerned your grandfather made only one, horrible, mistake. And that was to give away partnership interests. And now you’re talking about investment. So I take it you learned that lesson well and you didn’t give away partnership interests in your law firm.

Judge: Well, no, but there was no particular reason. Henry was the only one that left and he said that, symbolically, :I want my contribution, my early partnership contribution to stay here and you’ll never be able to turn me down if I want to come back. He acted, of course, and he kept us alive with the Teichert business for a long time. And he still, he’s still a wonderful person. He’s fully retired from the Teichert Company now.

Nichols: When I first became affiliated with the firm, the guy that I understood to be running the shop out at Teichert was Lou Riggs.

Judge: Yeah, he’s the son-in-law.

Nichols: That’s what I was going to ask you. What was, what if any was his connection with the Teichert family?

Judge: He was Nancy Teichert, Henry’s younger sister, quite a bit younger, and I think she’s a half sister because the first Mrs. Teichert died and Henry’s father married again. And I believe the two daughters are half sisters of Steven, Jr. and Jack. I’m pretty sure I’m right on that one. Yeah, I’m positive. And Lou Riggs was married to Nancy who was the youngest child and she died very early. In fact everyone in the Teichert family has died from cancer except Henry. Their mother, their father, Adolph, Jr. the oldest brother – there isn’t anybody that has not in that family – except Henry – that has not succumbed uniformly from cancer. I think Henry just can’t believe he would survive that kind of a history. Yeah, but Lou Riggs then came into – had a good education but was always training because he had always wanted to come into a company. And then he did and he was very valuable and he moved up to the top spot as the CEO. And now he’s sort of partially retired but he’s chairman of the board and he’s active, but not that active.

Nichols: Now when you started out so low, where were you located. Judge: A building called the Nicholas Building on the corner of 8th and K which is no longer in existence which was torn down as one of the old office buildings. The office buildings in the areas were the Oschner Building, which was just down the street a little bit, and the Nicholas Building, and the Forum Building which was up the block and on 9th Street, and, of course, 926 J, which was then called the California Western States Life Building, on 10th and J.

The Nicholas Building was an old building and I rented a room and a suite of three offices with a lawyer named Jim Bullock and an older lawyer named Don Wachorst, who was a member of the old Wachorst family. And Don Wachorst was an old time Sacramentan and the Wachorst Brothers had a very famous jewelry store which they inherited from their father. And Don was a lawyer in solo practice, and Jim was a lawyer in solo practice, and they wanted to fill the other office. Oh, and a man named Jay Henderson, who had been the District Attorney in Sacramento County many years before had that third office. It was ideal for me because it was set up like the old offices where you had a big waiting room where the Secretary was. And then there were three offices. And so Jim Bullock said, “My Secretary can answer the phone for all three of us. We won’t get that many calls. And so she can appear to be your Secretary.” And then he just worked out a generous package to me of my 1/3 share of the rent, and it was very convenient and very easy. And neither of them did any trial work at all, what would be jury trial work. He was a creditor’s rights expert, and he really was an expert. And his father and all of his family were National Mercantile Agency people, and so Jim obviously represented them in all of their creditor’s rights work and did a very good job. And that was a fine collection agency. I thought a collection agency were just scoundrels because they had to vie with these awful people, but old Mr. Bullock, who was there until he died, was one of the kindest and the most understanding people. And that was a great family. The three Bullock brothers.

And I stayed there for between two and three years, and then Bruce Allen came looking to form the firm, and so I left in 1953 to go to 926 J and join the other three for starting the law firm.

Nichols: And where were Holland and Wahrhaftig located?

Judge: They were in the old Bank of American Building, which is not there anymore, but it was on 8th between J and K. It was an old building and there were several law firm offices there, but mainly there were realtors and business people generally. I don’t know for sure that there were other lawyers there in that building. And Al Holland came up from San Francisco. He had been with Thielen, Marron, Johnson and Bridges right out of law school. And he took another year to get his Masters in taxes and business at Michigan. And then he came out and got a job with Thielen. And he got tired of living in San Francisco. And he wanted to get close to the mountains which he loved, and that sort of thing, and so he came up here on his own, and hung up a shingle, and when he found out that he could make it here he talked Mr. Wahrhaftig into leaving. Felix’s title was legislative tax counsel to the Bureau of Equalization. He was the highest legal staff person in the Bureau and he answered directly to the Board. That was awfully hard to get Felix . . . to pry Felix loose after 25 years to go over there with a nice secure position, and he was never married and had only himself to support, and he was very cautious. So Al Holland had to do a lot of talking to get him out of there.

Miller: You mentioned Adolph Moskovitz and how he was in the class behind you with the other people that you mentioned – Teichert and so on. And then he formed his firm after you formed your firm?

Judge: Yes, he was quite a while with the Attorney General’s Office and he worked with Mark Vanderlaan and, not Tiedemann, with Stan Kronick and then they went out to form their firm. I can’t remember when they did it. It was quite a while after we formed. And everybody – he was much revered.

Miller: Very scary, as you have described people you worked with, because he was so precise. I can tell you a story about him when – he gave me my first review as an associate in that law firm. He sat with his papers in front of him totally silent for maybe six or seven minutes. And I’m not good at sitting totally silent for six or seven minutes, so I after that length of time I was starting to get a little nauseated. And finally he said, “You know, Andrea, I hardly know what to tell you. It’s like I’m seeing a review of two totally different people. There are people in this firm who find you terrifying and say to keep you away from clients. You know, lock her up someplace. And the other half are saying you’re absolutely brilliant, sent this woman out to promote our business, she’s absolutely wonderful. What do you think is going on here?” And I said, “I hope that means I’m a good trial attorney.” He said, “Could be.” And the interview was at an end.

Nichols: You know, speaking of matters of precision, there is a story about Martin McDonough and the Richter scale that I think I have heard you tell and wonder if I could get you to . . .

Judge: I don’t remember it. I know there was something in that area, but my connection with the – it was the Richter law firm and that’s the firm I went to to talk to and one of their staff who was also a Professor at Stanford. And that had to do with the California School for the Blind, and I was looking for the best seismologist – the best there was.

Miller: That was after you were on the bench, right?

Judge: Yes, right after. Early in my tenure. I didn’t know which way to turn, and I went – you used to pick up people you know and you know you can trust. And I went to a wonderful man, so I went down and interviewed to see if he would be willing to take an appointment to act as the court’s expert on soils analysis and that type of work. And he said, “Oh, boy, would I love to do that.” And I said, “Are you for some reason disqualified?” And he said, “Oh, no. No, no.” But he said, “You’re entitled to the very best person in this field. Not only the person that is reputed to be, but is the very best and is also universally reputed to be the very best.” And, he said, “The Richter Firm is the very best, and the man in that office” – I’ve forgotten his name now but he gave it to me – and he said, “If you could get that firm with its name and that one Stanford Professor, in my opinion you’d have everything you could possibly have,” and, he said, “With regrets, I don’t believe I fill that bill.” And so I went and I contacted this man and he was just what I was told. That’s the first time I ever had a court expert – I kind of pioneered the whole idea of using him as an expert witness but make him available not only to write before the court what his finding were, but also to bring him back and subject him to examination and cross-examination to their heart’s content. And though I was not committing that I’d follow what he said, but I wanted someone who was loyal to me and I’ve found that expert witnesses, although they expect to be and intend to become evidence, they are decent people ordinarily, and they charge a lot of money for the work they do and they want very much to be able to help the person who is paying them. It’s very difficult for them to say, “Well, I’ve spent 200 hours in my analysis of this, and I have to tell you that I don’t think you’ve got a case.” It’s hard to do that. People don’t like to do that and so my belief is that they draw every inference they can in your favor. And then it may boil down to something very tiny, and very close, and by the time they go into the courtroom, you’re this far apart. And I don’t want anybody that has baggage even though he or she thinks he doesn’t.

And this man taught me a lesson. A lesson in listening instead of talking. And listening intently to everything he could find from you and asking a very few questions. And I remember saying to him, “I have been told that you are the finest expert in the world in this field. And these men are going to testify at trial. And there were three who testified on one side and three who testified on the other. And if I read the resumes and the recommendations, it seemed to me they were the best that there were, and they are in total disagreement.” And he said, “That’s right. I agree with you. They are the best, and they are in total disagreement. And not only that, but two of them, one on each side, coauthored several of the chapters in the most important and authoritative work that we have in the whole field.” And I said, “How would you account for this type of thing? Assuming that they are absolutely honest?” And he said, “They absolutely are. They are beyond reproach as far as I’m concerned.” And he said, “They disagree on the premise. And you know, if you say I can tell you, or I can calculate how far it is from here to that point across the street, and you say how would you do it, and I say what I do is I will estimate how far it is from here to the middle of the street and then I’ll multiply that by 2,” and he said, “That’s what you get. They are indulging in the reasonableness of a premise and I don’t think the premise is the same.”

Miller: So our readers or listeners understand this, as I recall when you came on the bench the way your cases were selected was we drew every fourth case randomly from the case file of the Judge, Judge Wilkins. And you got the Blind School case which I don’t think anybody anticipated would become as desperate and as rancorous as it did.

Judge: Oh.

Miller: And the two sides were the group that wanted to shut it down because they thought it wasn’t earthquake safe, and then the parents of the blind children who so loved that school and had become so inured to being there and so disliked the alternatives they were offered they were fighting against closing it.

Judge: It was more than that. There was a great deal of suspicion that the University was desperate for more property and they needed it, and . . .

Miller: UC, Berkeley?

Judge: Right. And so what actually happened was that by the time it got to me politics got into it in a sense, and that is that the people who were in charge of finding a site was the first problem. And they were given certain limitations such as don’t go in and recommend that we condemn an 80 story building because there isn’t that kind of money. You’ve got to find open land, and you’ve got to have it in an area that’s away from this, and this, and this, where there is known to be serious fault lines, and make sure that you can get the property, and that it is located in Northern California, not Southern California, and there were a whole bunch of things that these bureaucrats were saddled with by the policy making heads. And they went out and looked, and looked, and looked, and came up with something. It may have been a desperation thing because they had so many limitations, and yet they were simply told find it. And they’d said “Where do I find it?” And they’d say, “Never mind, I’m very busy.” And so it was hard. And I had a feeling that when they found this, this was really about the only hope they had that would meet the size – they had to have the school for the blind and the school for the deaf – and all the other things that went with it. And that maybe they didn’t do a thorough search of all the attributes of the property they should have done because they were so afraid that they would find things that were wrong with it. And there was that. And there was also a feeling that the area that they found was at least as dangerous as the existing School for the Blind, and that they were jumping from the frying pan into the fire and that the whole thing was being engineered by the University to get them out of there and free up that property for the University.

Miller: Did you visit the site during the trial?

Judge: Oh, yeah.

Miller: Beautiful, it was a beautiful place.

Judge: You take a case in which almost all of the witnesses on the side of the parents, who were fighting it, they were charging no fee at all, and this started out as a labor of love and care and concern and the blind families or the handicapped families almost equally divided. And it was a terribly difficult case.

Miller: Now we should stop there with the court, but I don’t want to forget and if I’m for some reason absent when we go back, I did mention that we did this blind draw to assign the cases. And as I recall, when you came, two of the cases that you got were back to back before you had time, as Judge Wilkins would say, to get off your stool. And we should talk about that when we get to the court years. Because I think you were in trial with a quadriplegic that was just a horrifying experience, at the same time that you were trying to do the Blind School case. And that was your introduction. So I’m anxious to hear that. And in case I’m not here, don’t forget to juxtapose . . .

Judge: Yep. I started packing my bag to leave and go back to private practice as I figured I can’t do this – I can’t do it.

Miller: I remember you saying that, as a matter of fact, in a very loud voice with a very red face after the quadriplegic had had his fifth seizure in a day and a half in your courtroom. And we felt so bad, we just felt horrible, because Judge Wilkins said “I never realized.” We tried to sort out things that were too immediate, and we knew the trial was coming up, but we didn’t realize that there was going to be so much activity on the Blind School case. You were just buried.

Judge: Well, what Wilkins did – he told me what he did. He said, “You know, I hate to sandbag you with something when we shouldn’t be bothering you for the next couple of weeks while you get your feet on the ground. But I have this case which won’t go away,” he said, “until I put the lawyer’s respective feet to the fire. And as long as they know we don’t have a Judge available, it will never go away. It just won’t do it. And the plaintiff is entitled to have his case tried.” So, he said, I’ve got somebody that he liked – a Judge that recently died from San Diego, in the federal court. Pierce – not Pierce . . .

Miller: Thompson?

Judge: No, it’s –

Nichols: Neilsen?

Miller: Neilsen. It’s Lee Neilsen. And he said, “Lee Neilsen has told me – confided in him that I couldn’t find anyone to try this case, and Lee told me that he’d be glad to come up and help you out.” And Lee pulled out at the last minute for one reason or another and left him holding the sack. And that’s when he said, “It can’t go. But what I’d like to do is, they know that he’s coming, and I don’t want to disabuse them of the notion because their feet are now to the fire and this case will settle.” It’s just . . .

Miller: The Blind School case, or this was the quadriplegic case?

Judge: The quadriplegic case. And he said, “It’ll settle. It will never go to trial. But you’ve got to have a Judge, a live Judge. And so we’ve propped up Lee, and told them, and now Lee’s not coming.” And so, famous last words. It didn’t settle. And so . . .

Miller: Do you remember who the lawyers were?

Judge: Sure. They were my first two lawyers. And they’re both — Bob Miller, and I’m trying to remember . . .

Nichols: Matteucci?

Miller: Evelyn Matteucci?

Judge: Yes. This was kind of her maiden voyage. And the two of them tried that together.

Miller: On behalf of the United States.

Judge: Right. And the other lawyer I had never heard of and he was not very well know. And he was a nice person, but he wasn’t a heavyweight at all. But he had this awful case. And he had the man who . . .

Miller: You know, none of us had ever seen him so none of us really realized.

Judge: It was awful. It was just awful.

Miller: I can distinctly remember – it’s a vivid memory in my mind – of you coming into chambers after the first day of trial when he’d been in the courtroom. You were white as a sheet and just shaking all over, and you said I just don’t think I can sit in that courtroom seeing that poor man. He would seize when things would upset him and it would be just horrible. Oh, God. It was amazing what happened to you in that first three weeks – just amazing. I’ve never seen anything like it in my life. I mean, the other Judges came in and, you know, they had the same number of cases, but it all just crashed – it was just amazing.

Judge: Well Karlton of course had something worse. He had all of MacBride’s . . .

Miller: All of his submitted cases?

Judge: Yeah. He had law and motion every single day for months. Miller: That’s right.

Judge: I don’t know how he prepared for daily law and motion with five or six cases that had been sitting there through the school – I mean through the bomb . . .

Miller: The Roseville Bomb case. Yeah, but it wasn’t like yours. It wasn’t. I mean you have law and motion, you have law and motion, but . . . I mean that was just incredible. And you also had, as I recall, in the Blind School case – because we all used to come and watch it – you had a lawyer that shall forever remain nameless that I have recently dealt with, representing the State of California, who was disdainful, and nasty, and rotten. You don’t remember this?

Judge: No, I don’t. But I’ll bet you it’s . . . who was it?

Miller: He’s still active but so I don’t want to mention his name. Well, we can take it out. Geoffrey Graybill.

Judge: Oh, now, I do remember him. He and I clashed badly.

Miller: Well, so did he and Judge Wilkins. We had another case in our court and I called him because the Judge wanted to have a TRO hearing. And he explained to me in no uncertain terms that, uh, I think the Governor was one of the parties and he represented the Governor and he was not going to be screwing around with any silly ass – and these were his words — federal court Judge who ought to know better. So I went and told Judge Wilkins that the Governor’s not going to be here, and he said “Why,” and I said well, and I didn’t talk it up, I guess, you know I hate to upset Judge Wilkins. And he said, “Was he rude to you?” And I said, “Well, a little bit.” And he said, “Well, get him back on the phone and just get him to repeat what he said.” I said, “Okay, but why?” And he said, “Well, I just want it firmly in your mind.” Well, I didn’t know he would be listening. So I talked to him and he was his snotty self, and then Judge Wilkins, who had that big booming voice, came on the line and said, “This is that silly ass District Court Judge and you’ve got 10 minutes to be at my door, or you will be in jail.” And he came down and was chastened, but then he went over to your court – I think it was the same case. I think it was the very first time we ever saw those people on that case – and behaved exactly the same way with you. Just said terrible things about you, as I recall. Wrote terrible things about you in his briefs.

Judge: I don’t remember. I just remember that I clashed with him something fierce. He was arrogant. And, I remember it was the first time I ever saw a lawyer in case where you, whoever the Judge was, was angry and was ready to fly, and who sat around and kind of put his legs out and sort of slid down in his chair to get comfortable. To sit like this and then he’d pull his tie loose and he’d put his arms back.

Miller: Oh, he was amazing.

Judge: What?

Miller: He was amazing.

Judge: I don’t know what he – he’s still around?

Miller: He’s still at the AG’s Office. And he still behaves exactly the same way. He still hears nothing. He’s an interesting man. But you talk about an introduction to the federal bench! A quadriplegic and Geoffrey Graybill. My, my, my.

Judge: When I saw Geoffrey Graybill I knew I was in trouble, because when I saw him and he just sat there, watching, looking. And I said, “Are you comfortable?” And he said, “Yeah.” And I said, “Get up – ” I just shrieked at him.

Miller: We were all there. We knew you would have trouble with him and we were all sitting in the back of the courtroom. You know . . . huddled in the corners in the dark just watching because . . .

Judge: I couldn’t believe it. I’d never saw, I never realized – I never saw anybody behave like that in a courtroom.

Miller: I remember one time when you were talking to him and he just turned his back and started walking away.

Judge: And that was Bob Holly’s thing. He mugged. He used to mug. You’d make a ruling and he’d turn around and walk back and – mugging to the spectators or to the jury, or whatever.

Miller: Rolling his eyes, or . . .

Nichols: Oh, I know Holly mugged, but I can’t imagine anyone being a bigger mugger than Don Heller.

Judge: I’ve never had him in a trial. I’ve had him a lot of times in the courtroom, and of course he’s mellowed.

Nichols: He has mellowed, no question about it.

Judge: In the interest of health, and . . .

Miller: Yes. People don’t know anymore why they used the nickname “Mad dog.”

Nichols: No, I cannot count the number of times where he would be present at sentencing in drug cases, and, uh, his argument on behalf of the government would be that “these people are merchants of death, they deserved the death penalty and if the death penalty were available for this crime I would volunteer to pull the switch.” And then he would turn around and he would just preen to the back of the courtroom.

Miller: He was a kick, he was a kick.

Nichols: Anyway, we got off track.

Miller: Yeah, we need to go back. You’re forming your law firm, and your law firm has become somewhat active. And I presume that even in those days, as in these, young lawyers, you know, four or five years, have got to have a community presence and you have to select carefully what it is you will do to develop your community presence. What kind of activities did you become involved in to . . . to have your community presence?

Judge: The lawyers – one lawyer talked to me and that was about this thing. And that was Gordon Fleury. Gordon Fleury was appointed to the Superior Court bench. And, I don’t know, we were at lunch one day. I don’t know what the occasion was because we weren’t close friends particularly. And something came up about what you do to, as you call it, enhance your community presence. And he said, “Everybody’s had to make up his or her own mind what, what to do.” He said, “Frank Richardson did it through the Council of Protestant Churches. And he became very pious and he was very active. And he sounds very, very polished and very much like a judicial officer.” And, he said, “He got known that way, and he got an enormous following.” And I said, “Why do you think those kinds of things are important?” Because I didn’t like joining if I could avoid it. And he said, “Nobody really feels comfortable with lawyers. They’re either shysters or they’ll trick you. And they don’t know enough about lawyers and so they want a recommendation. And, he said, “I’m not, I’m not suggesting that you’ll directly get cases from lawyers from doing something else. But secondarily it’s very important because somebody will know you from some activity, and it’s a good activity, maybe it’s a charitable one.” He said, “Some of them go up through the Knights of Columbus and some of them become high level people, and then various Masonic Orders, and all kinds of things. And people will come and say, “I’ve been recommended to lawyer X. Do you have any thoughts?’ And the person will say, ‘Oh, yeah, I know him from my Rotary Club, and everybody likes him.’ And you get an assurance from these people that you’ve got somebody that’s solid and that’s connected in the community.” And he said “I think you’ll find that you almost need that. Some people do it just all by themselves on their own. But you’ve got to get know, but the main thing is you’ve got to pick out something that you can really do well and will like doing, because if you don’t it’s worse that if you didn’t join, because you’re a lousy member, and so people will say ‘Who’s that phony, because he’s in our group, but I never see him.'” And all that. And that impressed me. And so I started the rounds, myself, like the Veterans, you know. You know, I went to meetings of the Veterans of Foreign Wars, and then American Legion and, you know, I can’t do it, I can’t do it. And I joined the Lion’s Club and I thought I just can’t do it any longer.

And we talked about those things when we formed our firm and I recounted some of these things and I said, “There are some people that have to stay home and tend the store. And I’d like to volunteer for that work and maybe become known as a good lawyer, and somebody who gets recommendations from the clients that takes longer to move than a big splash, but that it’s better if you do it that way, and then have other people that are interested in doing the civic things. And somebody’s got to bring in business.” And Bruce Allen was the natural who said he liked to do that. He attended every City Council meeting. Became an ex officio, almost, member of the Sacramento City Council. Went to every meeting. Became great friends with the Councilpersons and all that. And Martin McDonough joined only a few things, and they were serious ones. Academically oriented things. Henry Teichert was active in all kinds of work, and his whole family has always been active. So what happened was that everybody did those things that he felt contributed to the welfare of the office, but nobody ever insisted I think you have to be more active in this or that.

Miller: You were active, however, as I recall, very active in legal circles.

Judge: In what?

Miller: In the legal circles themselves. In the Bar Associations and that sort of thing.

Judge: Kind of. But where I got . . . I finally connected, and it was purely by accident. Because the ones that I tried I said “I can’t do it, I can’t do it.” And then somebody came to me once and asked me if I’d be willing to take an appointment to the Sutterville Heights School District Board. A one school School District. And I said, “Oh, yeah. I’ve got youngsters coming along now and I’d really like that.” And so I joined that without any ulterior motive, like “I’ve got to do this ’cause I’ve got to make a name.” When you do it unselfishly you work harder, and you care, and you like it. And that was my big contribution, if there was one. I was 17 years on school boards. I went from them, and then Sutterville area was annexed to the City of Sacramento. And in those days if you annexed politically, you automatically annexed to the school district because the boundaries were coterminous, by law, with the City limits, or whatever. None of that is any longer true. And so I became very active in getting annexation, because I knew a lot of the people there and I felt that our schools would improve if we became part of the City, and what kind of a deal could we get from the City if we annexed, and all those kinds of questions that were of concern. And the end result was the next vacancy that came up on the Sacramento City School Board after we had annexed, I was appointed to that position. And so, then I started there. And then when I finished, and didn’t want to do that anymore, and decided to step down, six months later I was appointed to the State Board of Education, and went through that whole thing. And it was something that I never coveted or thought I want to get that because that’ll help me. And those are the kind of things that do help you.

Miller: Absolutely.

Judge: Because I gave so much time because I was really very interested. And those are my big time contributions and things. I did become somewhat active in the Sacramento County Bar Association and was actually First Vice President when I was appointed. I was sort of going through the Chairs, and then I was appointed to the Court about that time so I never made the last step.

Miller: That’s a good point you’ve made for young lawyers. You know, all law firms tell kids to go out and get involved. And it just won’t work if it’s something you don’t feel passionate about.

Judge: I keep thinking about Todd Fogarty in our firm because he’s got so much to give but he’s not really extroverted enough to get out and share those things and people don’t know about them. Nichols: And yet if I had to pick one person in the firm to represent me, Todd would be right there.

Judge: Me, too. He is, he was just great. And Bob Puglia, of course, sent him to us. And he had lunch with Barlow Goff and me and said, “Do you have any room in your firm?” And we said, “No, we really don’t.” And he said, “Well shove some people over and make room because you can’t afford to pass this guy up.” And we figured that was pretty fair advice. And so we looked. But he certainly, he certainly is not somebody you’d be pushing to get out and circulate around because you know he’d hate it.

Nichols: Yeah, yeah.

Miller: Okay, so we’re up to . . .

Nichols: We’re up to ’55 and you’ve formed, you have merged, and what were the highlights of those first 5 or 10 years in your memory?

Judge: The first few years were extremely difficult, in that we didn’t really know about how to go about cementing a base of some kind. We had two lawyers that even then were published in Who’s Who in America – the big one. And that was Martin McDonough and Felix Wahrhaftig. And so we felt that that would be a big help. But of course it isn’t really. And Felix was not gregarious at all. He was very self-effacing and very modest. So he’s not going to go out and get a lot of business. People will come to him because they know what he can do but there aren’t that many. And some of the lawyers needed a set amount, a minimum amount, of money to live on. They had families, and we all had. And so we were really just scratching and struggling for different ways. Mostly, Bruce would bring in people. And Al Holland did not like to do that. I mean he was not a glad-hander and somebody that was anxious to be – in fact if we – I can remember asking Al if he would be willing to do a – take over a formation of a charitable corporation. I think it was the Junior League of Sacramento. Barbara was active then in that and they were looking for a lawyer. And I said this would have to be, I think, would be a no pay pro bono. And he said, “I don’t have any problem with that. And I will be very happy to do that on one condition. I’m not going to go to meetings. I am not going ever to go to a meeting. We’ll have to do this with a meeting with the officers and getting the papers signed, and I will, I can respond to questions that are asked over the telephone but I will never, ever go to a meeting and they’re going to have to understand that.”

Miller: Did you have a big breakthrough. Was there some client that you found, or some avenue that you found that provided you with that floor that . .

Judge: We had a couple of breakthroughs that just happened. And we did a lot of things, and we spent a lot of time. I always used to claim that Bruce Allen was the architect of our firm and Al Holland was the contractor-builder. Al put the thing together and the detail and the work and Bruce conceived the ideas and made them – and they were sensible. And when those two agreed you knew you must have the right answer, because they were this far apart. Al Holland’s belief was you don’t have to love your client. If your client appears to be honest and has a legitimate case or matter that needs to be attended to, he or she is just as entitled to adequate and good representation as everyone else. Bruce’s feeling was if you don’t like him, if you don’t approve of his personal ethics or his personal things, whatever they are, kick him out. And they’d argue. And then, of course, their heads would clang together because one of them would take a client into the other office for help and Al would throw him out and Bruce would pick him up and bring him back in because Bruce liked him.

And Al did wonderful things like, I brought in some nice people, I thought. They seemed to be nice people. They had a will. It was an estates problem. So I brought them in and I stayed with them because they were my clients and I wanted to hold their hands and that sort of thing. And Al listened politely, but the end result was that one of the things they wanted to do was to disinherit a daughter because she was marrying a Jewish boy and they were very strongly religious in their own Christian field and they didn’t approve of that and so they decided to disinherit her. And I found out later that Al was very carefully asking them questions that would lead to whether he had any objection other than the fact that he had the bad judgment to belong to one faith rather than another. And Al wanted to know if they had any other problems with him, if there was any other reason. And so he was so nice to them and when they finished he said, “First of all I want you to know that you will not be charged any fee for today. This was an exploratory thing. We didn’t know whether you wanted us to handle this and whether we wanted to handle it. So you don’t have to worry about being billed or what you should do about it. It will absolutely be gratis. And the answer, however, from this end is that I’m not willing to handle this for you.” And I looked up, and they said “Why,” and he said, “I’m not in the practice of helping people disinherit children. I don’t like doing that. Please get out.” And that’s what he said. And, of course, Bruce was beside himself. He’d thrown perfectly good people out, and all that.

So, we learned a lot from each other. And Al did things that nobody else did. Al was the first person in town, and for a long time, to take the line off the letterhead where you had partners and then a line and the associates. And Al said, “I will not agree to do this any longer. It’s insulting. If you are a practicing lawyer, and you are licensed to practice law, you’re licensed to do anything every other lawyer in this firm is licensed to do. You may be totally incompetent but so may the one above the line. There is no reason to differentiate. And I don’t’ want that line in there, and so I want it out.” Well, that meant something for the reason that Martin McDonough introduced something. We used to have meetings, very serious meetings. What’ll we do about this? And some question came up about whether we should or shouldn’t do something. I think it was whether we should get some kind of floor covering other than the battleship linoleum that was up in the 926 J Building. And some of us were very tightfisted and didn’t want to spend more money than we absolutely had to, and some of us said we’ve just got to have a place that looked good. And so we said, let’s vote. All of us are here and we’ve discussed it long enough. Let’s just do it. And so somebody who was chairing the meeting called on Martin McDonough to vote. And he said, “First of all I vote that the decision must be unanimous, whatever it is. And secondly, if it were unanimous, I would vote –

Martin said, “I think that in a firm this size, all professional people, only four of us, that we ought to have a rule of unanimity. I would dislike having factions and lining up people to vote with me against something, and my feeling is that if we don’t – if a small office like this does not agree unanimously we don’t do anything.” None of us had ever thought of that before. And we all thought it was a wonderful idea. And that survived – well, I’ve been gone for 21 years, but it came in shortly before I left, when the people said we can’t have it unanimous on everything. And so they changed it so that the partners, and later it became shareholders, the shareholders have to unanimously agree on any matter that is submitted to the whole firm. It’s the shareholders that make the policy decisions and they must all unanimously agree or you don’t do it. And I thought it was the most wonderful idea because we were not able to take in a new partner or shareholder or fire one – it had to be unanimous, and any one person could veto it. And it’s amazing how seldom you exercise that veto. Each time you know that that one vote will scotch the whole thing, and maybe you were pretty hasty about doing something if all of my partners feel that I’m wrong. I thought that it was the most therapeutic idea, but it was, I think it was still there when I left in 1979 as far as the shareholder, total shareholder agreement. And then it kept growing and growing and you just couldn’t work that way with having unanimity. Al did that.

Al also was the pioneer – to my knowledge, to the best of my knowledge, there were no law firms in the Sacramento area where the philosophy was the founders of the firm retained control – not necessarily control – but always draw more money than the ones at the next level, the lower levels. And that is in recognition of the fact that we started this railroad and we took all of the risks and waited to maybe never get any money. And then when we started hiring associates we hired them, and so we had to pay their salary every month, and I might be living next door to him and not draw any money at all, because if there wasn’t any money in the bank after we paid our associates and our other staff, non-professional staff, there wouldn’t be any money left. And Al insisted that we start our people on a track and that every year or two years or however, you would move up one rung on the salary until you reached the top. He said, “I don’t – there are too many firms where you hear lawyers that are grousing that ‘I’m bringing in twice the amount of money that this person below me is bringing in, but he’s drawing two dollars out of every three that comes in and I get one. And I don’t think that’s fair.’ And then the senior partner would say, ‘You could have started your own railroad. You didn’t take any risks.” And I became the foremost exponent of Al’s theory for the reason that my uncle, my father’s brother, was all his life was at Loeb and Loeb. And he was asked to join Loeb and Loeb as a partner a year and a half after he was hired. And Loeb and Loeb had three partners, that’s all they had, and they hired one or more new partners at the end of the first or second year. And so my uncle used to always, he always dissatisfied that he was always taken advantage of because he’d been with the firm more than 25 years and he was still drawing, if the firm was drawing $25,000 a year, $50,000 a year-the founders-he was drawing $25,000 a year after 25 years. And he just, you know, it was mind boggling to him, and to us there’s no answer to that question. You can argue it forever. But Al believed that unless it was your firm and you knew that after 8 years or 10 years or however many, you were going to be a partner, if you did not reach the top level you were going to be dissatisfied and disgruntled, and you were going to find – you were going to start – as new firm once you got solid enough and got enough clients. But if you knew that you were going to reach the top, and that at one point the top guys would start drawing less, then it was fair because it all equalized. And, at first, only he and I believed that was the right approach. And I could use my own example of my uncle, who never, he never got over this. And yet, every time they’d say to him “You don’t like it, there are new railroads to build, go get ’em.” And, of course, the older he got and the more secure he got, he never went. And that was a lesson for me. And then when Al started talking about it I embraced it really fast. And so that was the system when I left. You just went right up that ladder. Now it’s gotten much more . . . I understand.

Miller: Complicated.

Judge: But a lot of those initial principles stayed with the firm and made things a lot easier. The other thing we worked on was you don’t look too closely at how many dollars each person brings in. Because some people, like Bruce Allen, don’t appear to be bringing in any dollars, hardly, but they’re the only ones that are bringing in the clients. Otherwise people like me would have no work to do. Because I certainly didn’t bring in much business directly, at all. And those things began to count and to be important.

And so, for example, I did all the domestic relations work we had to do. I didn’t like it, but I had started out doing it, and I was the only one that was familiar with it. And then the firm started saying, you know we’re kicking out people that are disgruntled, you know, one of our prize clients has a son or a daughter that he wants taken care of and they don’t want to be pushed out to someone else. And we want somebody in this firm who can take over those things for them and they feel comfortable. And that was a loser, if you do it right financially it’s a loser. And we expected it. But I was not penalized because I was doing work that nobody else really wanted to do, but we knew was a loser. Whereas, if I wanted to be nasty about it, if I got a big probate case in, theoretically I’d keep that case and do it because it would promote, or generate a big fee. But we never did that. At least the whole time I was there it didn’t matter. If you were good enough to be in the firm and to be a member, you stay. And if you’re not, we ought to have the courage to say “Get lost.”

Miller: Well, that principle saved McDonough, Holland from some of the horrible things that happened to most of the other firms in this town at one point or another. You never had a major rupture, as I recall. A small one with the Somach group, but that was . . .

Judge: There were no ruptures when I had left. In 1979 there some unhappy terminations, a few, but they’d be individual things.

Miller: No group of people rolling out to start their own firm, or to . . .

Judge: There weren’t any, but then there were after I left.

Nichols: After you left. Yes.

Miller: Somach is the only one I can think of.

Nichols: DeCuir and Somach, and there were about 6 people in that group. And then more recently Dave Salem and Julie Greene left and started their own shop, and took, I think, one associate with them.

Miller: But not like the collapses and the major leaps that almost destroy everybody that you’ve seen in this town. You know, Diepenbrock’s gone now, and Downey, Brand spawned probably five of the largest law firms in town with people leaping out of there. I mean, you’ve had a very, very stable firm.

Judge: Oh, yeah. Although we were very much concerned about Diepenbrock because they wanted, and so did Downey, they felt that . . . stop the growth. Pretty soon we’ll have too many, so just stop it right here. And then people get old and the firm was dying. Diepenbrock almost died, really died, dead. Until Forrest Plante and Jack Diepenbrock got out of Boalt and they were insistent in pumping life into that firm and making them think in different terms, and they revived and became . . . then apparently got Shubb and they got people that really pumped new life into them. And the same thing happened to Downey with Clyde Brand’s initial thing with there were too many already. That when down the tubes pretty fast. So, I don’t know.

Miller: So, if you had to characterize the firm that you helped to found . . . if you had to characterize it in general. The McDonough firm is best described as a firm that – what would you say?

Judge: From what I hear from young lawyers that are looking for work, they tell me – like my law clerks will say, the McDonough firm is always the one that’s named as the most desirable of the large firms. And, I’ll say, “For what reason?” And they’ll say that their people are treated better and their own concerns and more personal problems are more important than a set of principles and most of the time they were reputed to be the only ones that you could get to the very part level of partnership as opposed to those that always kept control at the top.

Miller: So it sounds as if you’re very proud of the fact that that firm, after all these years, is still seen as a firm that the focus is on good law, good relationships and not solely on great money and . . .

Judge: Well, certainly by the time I left, there were two areas that I was worried about. And, oddly enough, both of those areas are gone. They were areas that I could only classify as “They think more of their own situation in the firm than they do of the firm.” And one of those lawyers would come to me periodically and he would talk like this. “I am really getting had. I put in all these hours. I kill myself. And then I see somebody else, and I see the hours that he puts in, and I don’t know why I’m not getting more money than he is, or as much,” or whatever his status was at the time. And he said, “I come to you because your hours are always up high, and so I know how hard you work. But some of them don’t.” And I remember saying to him, “I think you ought to quit.” And he said, “I don’t understand. Why?” And I said, “I do. Because as long as you think you’re taking – you’re putting more into this firm than you’re taking out, one of these days you’re going to screw all of us. Because you’re not going to be able to stand the thought that you’re getting screwed. Even if it may not be true.” And he said, “Don’t you think that you are? Look at your figures.” And I said, “No. I’d starve to death. I have never once believed that I’m giving more to this firm than I’m taking out of it. Because none of you people started solo practice and went through that awful period. And I’ve gone through that period, and then a very small firm, and then a growing firm, and then larger and larger. And throughout all those stages I have always honestly believed I get more out of this firm than I put in it because I know what it was like when I was solo practice. And here I had all these things done for me, and I had lawyers who would associate with me to help me in a case and I would get the credit. Because I was the lead lawyer. And I would be able to enunciate the principle in court and I would get the credit for all their work. And I would have quit years ago if I had thought – I’m not that neat a guy – if I had thought that I was putting more than I’m taking out, I would have quit. If I’d had the courage to quit, I would have.” And, I said, “I think that you are going to stick it to us. One of these days you’re gonna say ‘I don’t understand why.'” And he said, “How am I gonna stick it to you?” And I said, “You’ll steal from us.” You’d steal from us by not reporting things, and charging them on the side to a particular client, or you’d take it easy on the client and you’d justify it in your own mind as okay because you’re really just paying back to yourself what you are already entitled to.” And people can be pretty amazing.

Now that guy got into trouble with a client and it was almost ruinous because the whole firm becomes responsible. And then another small group, I always felt, thought about themselves and their own welfare much more than what’s good for the firm. And the thing is that they didn’t think of it in terms – they thought in terms of the opposite. That if you have a big firm you dilute the money that a small group could keep to itself, because that small group is producing more. And you never embrace the firm aspect of what . . . And I really believed that, and I told him that, and he would grumble, and stay.

Nichols: And he was a world class grumbler, too.

Miller: I can remember a time in my firm when a group of associates made a demand to see the books. They wanted to see how much the partners were getting because clearly they were working harder than the partners. And they just wanted to be sure it was equitable. And we did the same thing you did. We said if it was really a major concern that they probably need to go start their own firm, where they could pay for their associates when there was no money coming in and where they could sign on for the individual liability, and where they could have all those privileges and, therefore, maybe make some more money, but . . .

Nichols: That is something, and I’ll ask Milt to talk about, but that is something that Al Holland set up that, that I just revered the man for.

Judge: So did I.

Nichols: Uh, he was absolutely open to anybody about the firm’s finances. How did that come about?

Judge: He just said, “If you’re a member of this firm, whether you’re a shareholder, or a partner, or an associate. If you’re here, and you’re working, and you’re part of the firm, you’re entitled to know what the firm is earning, what they’re making, what the bills are. You’re entitled to a financial statement. They are part of it.” And he just thought that – a lot of people disagreed with him and thought these are private things, and these people may go off and leave us and all that. But he was insistent that that be done, but he had it set up so that every member of the firm who might just be taken in- -it was kind of a general practice that, if you were doing well, the chances were that after you’d been there maybe five years, the firm would agree and invite you to become a member. When you became a member, you’d start at the first level, and you would draw a salary that was much less than the next level and the next level. But you also had, completely divorced from your salary, you had one vote on every issue that was submitted to the firm to be decided. And you didn’t vote by the number of units you that you had. Every member of the firm had one vote. And, if it wasn’t going to have to be unanimous, at least it would be a majority vote, but nobody would have but one vote.

Miller: Well, that’s got to be unique in this town, as well. Or any town.

Judge: I think it was.

Nichols: If you want to read about how that works, read Marriage of Nichols in the official reports.

Miller: That just – I’ve not ever heard of that.

Judge: He was just determined not to foster old people’s fights against young people. Because they’re going to be different. The old people are going to say we want this because, etc., and the young people want something else. And you didn’t want – he wanted thinking, clear thinking, so that he got from the individuals a clear vote. And then the majority vote, if it has to, has to rule, or, if it has to be unanimous, so be it. But he kept it divorced entirely from control and those kinds of things, and said we’re all working for the firm, each one of us has an equal vote in policy, in anything, we have a right to the books, we have a right to everything that’s in the firm whether you’re a partner or not, or an associate or a shareholder. And he really fought for that all the way.

Nichols: One of the things that as so astonishing to me as young guy coming in to the firm . . . Al was a good liberal Democrat. He and I differed on every possible political philosophy. But he was so intellectually honest in firm operation and business that I cannot recall an instance in which I disagreed with him on how to operate the firm. Politics I can recall an instance in which I agreed with him. But he just was so straight in how to operate a firm, that it was just astounding.

Miller: And yet he had no special training for this. It just was his instinct I guess.

Judge: He didn’t want any. I met with him before we did our amalgamation in 1955 and I said, “Ever since we’ve been together with the four of us I have kept the books. For a while I did the actual bookkeeping. But I’ve always overseen the books and done the financial statements, and I’m sort of a half-baked accountant, and I know general double entry bookkeeping accounting, and I am interested in continuing to do that kind of work.” And he said, “Great. I don’t like management. I don’t know anything about it. And I’m delighted if you want to do it.” And I said, “I do like it, to the extent that I can handle it adequately.” And then it developed that he became interested in it when we got into much more sophisticated areas where I wasn’t even equipped. I should have been going back into low level bookkeeping. And he was doing some of these amazing things because he really, really got interested in it. But there was – you never, ever worried about whatever he thought or knew. It came out and it was just straight.

One of the amazing things that he did, that made us learn so much from him, was that I had a relative that wanted to come into the law firm. And I didn’t want to be involved with it because it can be difficult if it doesn’t work out and so forth. And so I said, “I really think it’s a bad idea. I think we’d become defensive and we’d become all sort of things. We have enough problems.” And Al and Bruce Allen said, “Okay, but we really shouldn’t deprive ourselves if this young man is the best candidate around. So why don’t you stay out of the selection process and we know that, and let us,” Al and Bruce, “handle it, and if we think he’s the best we’ll tell you. And then we’ll put it up to a vote.” And I said, “Well, that’s very fair.” And I said, “I think you need to know about him because there are certain instabilities. I think he’s terribly bright, and very, very able, enormously able. But I think, I think he’s had some emotional problem and I don’t know how stable he is.” And I remember Al saying, “He’s been knocked down on his back, hasn’t he?” And I said, “Yeah, a couple of times. Big time.” And he said, “I’d a helluva lot rather have a person like this who then went back to law school and succeeded with all of the baggage that came, and know that he had his nose bloodied a few times and still fought his way through, and has come to this point, than with so-and-so who is in our firm, who,” he said, “that guy has done everything. He went all through school on full scholarships. Never got anything less than an A. All of the big ones in the East, culminating in Yale and then Stanford, and,” he said, “that guy has never been in a fight. Nobody’s ever smacked him. And I don’t want to take my chances on a guy like that because life isn’t like that. You don’t escape getting into a fight someday and with somebody.” And he said, “He’s untested. With all of his A’s and all of the things that he’s done I not at all sure he’ll make it.” He didn’t make it. In spite of all that, he never did. And the other one, who Al said “I’ll take my chances on him,” he made it big time.

Miller: What an amazing man.

Judge: He just . . .

Miller: It was just total instinct. Good character.

Judge: And when he was young, he grew up really on a backwoods Tennessee plot of ground where most of the income that they had – it was during the Depression – was money that he earned. His father was a drunk, and his mother struggled and struggled and they had no electricity. I mean, this was poverty. And he said, “A lot of times the only income we had was from my newspaper route.” And I said, “How does it make you feel when your kids are getting a lot of these things, and driving cars, and doing things, and going to these fancy places?” And he said, “I wouldn’t change places with them in a million years.” And I said, “Why not?” And he said, “Hell, they can’t go anywhere. When I worked, I worked hard, but people were kind to me. I worked in a drug store and I did these things, but when the work was over I could walk out with a gun and a fishing pole and anyplace I could go and fish, you didn’t have any No Trespassing signs up anywhere. I went wherever I wanted to. People welcomed me. The people that paid me were nice to me. And they don’t have any of that. You have to be – they have to be in the Boy Scouts, and you have to have people to take them out in cars and vans because you can’t go out on a walk out in the country and lie down behind a tree. There are no trees that you can go up to. They can’t do anything. That’s a sad thing for my three boys, who have all kinds of possibilities, but everything has to be organized because there’s no way to do it otherwise.” And that was his philosophy. And you never heard him say, “Oh, boy, when I was your age I had to do so and so and so and so, and I walked four miles to school and all that.” He never talked that way. He just was born with judgment. He was just an amazing young man. Young man, God. Just celebrated his . . .

Nichols: 1917

Judge: 1917. And they’re celebrating their 60th Anniversary this month.

Miller: Does he still spend time at the firm at all?

Judge: Pardon? Miller: I wondered if he still spent time at the firm.

Nichols: I haven’t seen l him recently. He used to – I used to see him with some frequency up until about, oh, three or four years ago. I haven’t seen him much in the last three or four years. I don’t know if you have.

Judge: No, he – they go to Hawaii right after Christmas and they stay for about four months. The climate is better for Ruth with her lupus. And then they’re around here.

Nichols: One of the things I like to add about what Milt was describing about Al and his kids. And keeping the kids grounded in nature and that sort of thing. One of Al’s kids participated in one of the Olympics as an Olympic kayaker on the American Olympic team.

Judge: And that year he was ranked nationally, in the United States, as number three nationally in kayaking, and kayaking is rough, rough stuff. And he’s a lawyer, in solo practice. An interesting guy. And they’re all very, very bright. And I don’t know what John, what Bob, the middle son, what he does. It’s environmental, I know. But beyond that it’s very high level. And he has his Ph.D. and very knowledgeable and very skilled. And the oldest son is in, makes that beautiful furniture, and now he can’t do that any more but he’s – they’re all very, very accomplished.

Miller: Well, Courtney’s going to be back in a minute, it’s a little after 1:30. I want to ask two questions and we’ll wrap up and we’ll start next time with your beginning up the ladder to be an exalted federal Judge.

Judge: I’m sorry.

Miller: Your being an exalted federal Judge and the path that that took. One thing I wondered if, in terms of the four of you who founded the firm – it turns out five I guess it ends up being, because Teichert left, um, were you all also social friends?

Judge: We were not close palsy kinds of things where you – but we were very good friends, and there were always enough functions and activities where you went to thinks that the others did, or we did them as a firm, anyway. Henry Teichert I’ve known since he was a youngster. Way back. And he and I and Bruce Allen have lunch once a month, and have no agenda except that the agenda says you must not talk about anyone’s ill health, because otherwise it will take over the whole day.

Miller: How about your families? Did your families mingle and mix, or was that part of your life totally separate from the office?

Judge: They did, but, well it depends. None of us got real close to Martin McDonough who was a very, very private person. And he entertained and he was very gracious in an old Southern – I don’t . . . I saw more of Bruce Allen in the early days because we sort of did things together; we were close to the same age. And the age differences were, I don’t know, Al is 1917 and I’m 1920, that’s not much. Henry Teichert is 1917. I don’t think it was the age exactly, it just was that we were not close friends, really, before that, which was the reason that Bruce . . .

Miller: Picked you.

Judge: Picked us. Right. Not because we’re buddies, but because we had maybe something different to offer than the others. But we’ve always been good friends.

Miller: Good colleagues.

Judge: Very good colleagues.

Nichols: But very different styles.

Miller: Well, that makes for a good firm. I was just wondering whether you – for instance, in my old firm a couple of them were just, you know, they practically lived together. And very tight, they’d become very, very tight over the years. And others of them, you know your outside life is one thing and your business life is another thing. And you adore each other in the firm, and then you go home and do something else. And that’s more like what you were like was go home and do something else.

Judge: Not deliberately so.

Miller: No, just . . .

Judge: That’s just the way it happened.

Miller: Right, right.

Judge: Because we were not close friends when we came together and formed the firm.

Miller: And the last question that we need to cover today or Courtney is going to kill me, is in reading the transcript he was noting where you had lived. And he says that Joan Didion, apparently, was raised only a couple of blocks from you, and he wondered if you knew her. She’s a bit younger, but not a lot.

Judge: Yes, she is. Who asked you that?

Miller: Courtney, Courtney Linn.

Judge: Oh, Courtney. I know the Didion family, slightly, because they’re a huge Irish family. And Genevieve Didion was a long time Sacramento City School Board member when I was appointed to the Board. So I know her there. And I’ve known a number of the Didions but I’ve never been good friends, or close friends with any, and Joan I never knew. Joan is actually, I believe, a step-daughter of – hell, I can’t keep them straight. There was one Didion, J.F. Didion was a tax collector. They all belong to the same family, in fact, every Didion that I know, in town. And the second and third generations have been active in all sorts of things. But I do not know her, but I was delighted to read a couple of her books because she sets them in the Sacramento River and goes down the River and you know exactly what she’s talking about.

Miller: Okay. Well, Dick, you need to get to work. It’s quarter to two. So we’ll wrap it up for today.

Miller: When we stopped last time we agreed that this time we would move a little closer to the Judgeship and then take our side trails from there. When did you first think that what you, the way you wanted to end your career was as a Judge?
Judge: I think I knew, I can remember the year – it was 1963 – and there was . . . someone told me that the Governor, who was then Pat Brown, was looking for someone to appoint in Superior Court. And I can’t even remember who it was; it was a lawyer that I knew who was working on a Committee and urged me to put my name in right away. And I can remember staying up all night long with Barbara, my wife, thrashing the problem out. And I remember that the salary was $21,000 for Superior Court Judges, and we had four kids and all four of them needed to be educated, and I finally ended up not putting my name in. But the bug was sown and the thing that was working the hardest on me was that, I remember saying, I’ve always known that someday before I hung them up I would like to be appointed to a court. And, obviously, the federal is not one that you entertain real hopes of because it’s so difficult and so much political that it’s hard to do.

But I knew that there were several very good lawyers in Sacramento who had passed up appointments in the time being, and they never got the chance when they later wanted to go on the bench, they never got the chance to be appointed. I said that this may be my only opportunity so I ought to grab it. And I remember Barbara saying, “That’s a terrible reason to take an appointment that you don’t really think you want now because you’re afraid that later on you will want it. And I can’t promise you that you won’t get another chance if you turn this one down, but maybe it’s not meant to be. But that is not a sound reason for saying, ‘I want it.'” And so we never did go to bed that night. We went back and forth. And that’s the first time that I really thought that I was interested and might want to be that if I could.

A year or two later – no it was more than that – but Pat Brown was still the Governor and the opportunity came up again so I went over to see him and told him that if my name was still under consideration I would like to apply. And he said, “I promised that position unfortunately already now to Abbot Goldberg,” and so, he said, “there isn’t one open or available.” And then I figured that has now happened to me.

And then this federal one just came up out of the blue. Justice Anthony Kennedy had his chambers over in 555 up on the 15th Floor, and I got on the elevator with him one morning to go to work, and he was on the elevator, there were just the two of us there, and he said, “I assume you’ve heard about the new openings for federal appointments.” And I said no I had not. And he said, “Well there will be. I don’t know how long it will take to fund them and that sort of thing, but they have been approved.” And, he said, “Why do you put in your name for one of those.” And I said, “What will I do?” I didn’t even know anything about it. And he said, “Why don’t you . . . if you’ve got a few minutes why don’t you come up and I’ll tell you about it.” And he did, and he told me that there were two new vacancies, but they were not funded. They were just approved, and so it might take a while, but it seemed to be a done deal. And so that’s what impelled me to do it and I immediately went back and wrote.

And it was very easy in those days, because in the Carter Administration they had been embarrassed already by what’s-his- name from Nevada, who was really a wonderful guy, but Senator Cannon had so much power then to control appointments, and that was a very bad experience for Carter because it was a lot of stuff that wore off on him, and he announced that he was not going to make appointments that way, even though the protocol was for the Senior Senator in the President’s party to control the appointments to Superior and to U.S. Attorney and to U.S. Marshal. And so, he said, “I like the way Senator Cranston has set up his appointment thing by having a so-called Blue Ribbon Committee with people on both sides politically and nobody would be asked to write letters or to ask people to write letters on your behalf.” It would be done by simply putting in your name, applying, and then turning it over to the State Bar of California. And the State Bar was asked to run the whole process, and it seemed to be the most non-politically possible way to do it.

And so I applied. And that was in 1977. And it took two years before – more than two years before an actual nomination was made. Not even a nomination – a – in those years the Senior Senator was given the courtesy of holding a press conference and announcing those persons or person whom he intended to name – to nominate – nominate was not the right term. He was simply recommending to the President, but everybody got it mixed up and they saw the big splash in the paper and so they assumed that you were appointed. And there was a long, hard, hard road from that point on. So it took a little more than 10 months for me to clear that first announcement that seemed to be . . .

Miller: A done deal.

Judge: A done deal, it did indeed. And everybody called it a nomination and, of course, it was really nothing. It was just that Senator’s informal recommendation to the President. But when that happened, there were embarrassments to the President, because people that the Senator, like Cannon, announced, embarrassed the President. And so they changed that whole thing so that in recent years the way that goes about is that the President makes the announcement, but only after it’s gone to the American Bar Association and, at that time, the Women’s – the Nation Women’s Bar Association, and a number of agencies, including of course the FBI and the full background investigation -everything.

Miller: They did that before anything surfaced?

Judge: Before anything. And when the President was satisfied that he was not going to be embarrassed then he would name the person, but the Senator was pretty much cut out of the loop as far as the publicity was concerned.

Miller: In recent times they’ve had a very, um, detailed 20-30 page questionnaire you have to fill out that pretty much exposes your whole life. Is that the way it was then?

Judge: It still does. And it was awful because I was just turning 60 years old and that was a long, long thing to fill out because you had to – you had to identify any place, geographically, where you stayed more than one night consecutively. And you had to fill in everything so that they could check all of those things. And that was a very lengthy thing and it took forever for me to get all the material together. But that was just the beginning. And then, before the President made his formal nomination, that whole thing was done over again, and more so, and updated with a lot of other things. And then another questionnaire was directed to the Senate Majority and another to the Senate Minority. And they all were different and they all emphasized different things. But the whole thrust of them has changed.

Before my name was considered, the Senate was concerned, and everybody was concerned mostly with excessive drinking, um, moral conduct with others, all the kinds of things – and of course

Miller: All the things they were doing.

Judge: I know. Exactly, exactly. And when I came on I thought this was going to be a piece of cake because I don’t have any of these things. Fortunately, no arrests and no things that had to be explained. Our focus was the big movement then about did you belong to an organization that discriminated against women or minorities in appointments, or rather in membership, and that sort of thing. And I can remember was that except for length, and boring where people would fall asleep reading about all these things that had happened over that long period of time, from the time – I think the starting date was the date that I graduated from Law School, assuming that there was no full time employment between college and Law School. If there was that it started from when you graduated from college and went all the way through. And I went to the Senate hearing in Washington, very excited that we had finally gotten there and there wasn’t a single answer that I would be concerned about at all. And, of course, I got there early, and I sat there and a staff member from the Senate Committee came down and sat down next to me and said, “Are you Mr. Schwartz.” And I said, “Yes.” And he said, “I just want to warn you, you are in some kind of trouble here. And I want to alert you because I’m afraid that you wouldn’t even pick it up, and it might surprise you.” And I said, “What did I do?” And he said, “They’re worried” – and this was the Committee, this was the Republican Committee – he said, “they are worried a lot about the fact that you were a member of the Lion’s Club.” And I said, “I resigned from the Lion’s Club in 1953. How long do you have to purge yourself form disloyalty and terrible things? When does the statute run on that.” And he said, “Oh, we didn’t understand that. It wasn’t clear that you were no longer with the organization.”

Miller: And that was because the Lion’s Club was all men.”

Judge: All men.

Miller: How about the Sutter Club? I know your grandfather founded it. That was the . . .

Judge: I never joined the Sutter Club because they were on a big kick after World War II that, some of the old timers there were very adamant that they did not want any Jewish men in the Sutter Club.

Miller: Even though your grandfather – wasn’t your grandfather Jewish?

Judge: That didn’t make any difference. And a few of them had made it through because they were, you know, exceptions. It’s sort of like, we don’t have any prejudices of any kind, but how would you like your daughter to marry one?

Miller: Yeah, some of my best friends are . . .

Judge: Yeah. And there were some very prominent people who were adamant and they got into some of these fights. But I remember that Dalton Feldstein, who was very prominent in every conceivable type of activity, and then, of course, was a very prominent and successful automobile dealer and all sorts of things, he got in. And there were two or three that it was sort of in spite of the terrible things that he may have done and be saddled with over the years, he’s okay. But it was embarrassing and I wouldn’t let my name go in because I was not going to go down there and be embarrassed. So I didn’t. And then, after that, when they opened it up and everything, then I wasn’t really interested anymore because I kept thinking, who would I go with? I mean there was nobody in our office. I’d have to be hosting parties all the time in order to have somebody to go to lunch with. And that didn’t seem to make sense. And you had to use up so much each month or you were charged for it whether you went to the luncheons or not. So that didn’t seem to make any sense. And I’m not a joiner anyway, and that terrible experience of, when I started out, joining these veteran’s organizations, temporarily, like the American Legion and the Veteran’s of Foreign Wars and all of those things that I thought would do me a lot of good in my law practice, turned me off so badly that I never really was a joiner. So that part didn’t bother me. And I hated that Lion’s Club thing, but I joined it because I thought I ought to, it was one of the things I thought you ought to do that. And it was so traumatic that I dreaded . . . . Barbara said I used to come home and say “six more days until I have to go to that awful Lion’s Club meeting.” It was, I thought it was pretty bad.

Miller: Now how about Del Paso. Did you – your grandfather . . .

Judge: My grandfather belonged, and my brother has belonged for a long time. But I never played golf, and there didn’t seem to be any reason to join, or to put in my name for that, and so I never did. And whatever I did was playing tennis and I never had any connection with golf. So that didn’t seem to make any sense. So I really have not joined any kind of a social or fraternal organization.

Miller: Now, in those days, before you got to the Senate Hearings, did you have to go through the citizen board interviews, and the Senatorial Interview, and that sort of thing?

Judge: Yes.

Miller: What kinds of people were on the, on the interviewing board when you did that? What year was it again when you did that? ’78?

Judge: ’79, when they got around to that. Everybody did it differently, of course, in every administration. But Judge MacBride was asked to conduct . . . he was asked to interview all of the people whose names had been proposed by themselves, I mean who was in the hopper. And that was supposed to be in confidence so that nobody would be embarrassed and that sort of thing. And that was a private interview with him, and he asked me questions, and I didn’t know him all that well. I’d known him all my life, but he was always 6 years older than I was and that was a huge difference when we were growing up. And he was very prominent in student activities, and all these kinds of things. But it was a very business- like thing, and he asked me various questions, and he said, “Well, I don’t see any reason why you wouldn’t be qualified. You’ve got a few things against you. You’re the wrong sex, the wrong color, you’re way too old,” and I forget what else. Nichols: The wrong party.

Judge: The wrong party. And, he said, “But other than that . . .

Miller: You’re looking good to me.

Judge: And I said, “Well, that’s encouraging.” But he was a realist, and so I didn’t have to do any work except fill out all of these things. But I didn’t have to go get letters. A side issue on that that may or may not have any interest to anybody, but it did to me. Gordon Schaber, of course, had an enormous amount of clout, in the Democratic Party, and he was highly respected, and he was always on these selection committees of every kind. And, so, when it came time, and it was getting down close, I was asked for some, for several names. And, so I thought that Gordon would be extremely helpful since it would be a Democratic Administration and I wasn’t. And I went to see him, and he said, “Well, I’m going to do this, but I’m doing it kicking and screaming. I will tell you,” he said, “my committee, which was a local committee, worked very, very hard on all of the appointments in the administration. And we spent all kinds of time on judicial and on U.S. Attorney. And,” he said, “our last appointment we narrowed down our list of people to recommend down to four or five names, and we believed they were all very strong and it didn’t make any difference really, politically. This was our best judgment. And the day before the announcement was made of the U.S. Attorney’s appointment, we’d never heard of the man who was nominated by Senator Cranston and the Democratic Party.

Miller: Was that Herman Sillas?

Judge: That was Herman Sillas.

Miller: That worked out well.

Judge: And they moved him over because they wanted to get rid of him, and they simply said, “Get this guy out of our hair. Find something for him. But he is messing up . . .”.

Miller: Well, they did – they spread that wealth then to the federal system as well.

Judge: Yes, they did.

Nichols: He had been Director of DMV, and he had created some difficulties.

Judge: Wow, did he. And the fact is that, after everything was over as far as my appointment was concerned and I was back taking my one week’s orientation course, in Washington, the question arose at that orientation course as to whether a person who had been appointed for 5 years as the United States Attorney could be fired by the President. And nobody could seem to agree as far as I recall. But the person who was conducting the seminar for us on that particular subject, I think, was Charles – great district Judge from San Francisco –

Nichols: Renfrew.

Judge: Renfrew. And he posed the question and he said, “It probably never will really arise and be faced because when the Attorney General of the United States says to a U.S. Attorney, ‘it’s time for you to step down, like yesterday,’ you do it, because there’s no end, I mean that’s just a one way street, so that nobody every faces it.” But it looked as if Herman Sillas was going to take it to the, and go to the mat with it, and he said no, and so it was going to be a test of the President’s power and all of his prerogatives, and all kinds of wonderful things that were going to happen. And then finally he folded at the last minute and resigned.

Miller: Okay. So you have the interview with MacBride. Then you have to go out and get some people to support you. Did you have a Committee interview?

Judge: Well, the Committee, then, was the one that – the Committee that Cranston appointed consisted of four Democrats and two Republicans that Hayakawa – he was, of course, the Republican – so that was six, and then the State Bar named three. I forget if anyone else had input. And that was the Committee, the final Committee. And we were just given a day and told don’t tell anyone. Come to the federal courthouse at 2:00 on Wednesday afternoon – they gave me two days notice – and present yourself and tell the Marshal that you have an appointment with Judge MacBride. Judge MacBride will not be there. It will be the Committee. And . . . but they are sworn to secrecy and everybody’s going to be doing this without revealing names or anything, so that no one is embarrassed by having applied and then not being selected.

And so I was trying a case in my last trial, in Fairfield, and I went to the Judge and asked him if I could have tomorrow afternoon off. That I was not at liberty to reveal what it was but I was being interviewed and had directions to present myself. And he was quite nice about it, and so I got off that afternoon and came over here. And then you just do like you do in any interview. I presented my name at the Marshal’s office, and I was taken upstairs at my time and they interviewed me with all kinds of questions. And, of course, I panicked before the interview. I had no federal practice, almost none.

Miller: Really.

Judge: None.

Miller: Fascinating.

Judge: A few – three or four criminal cases, and maybe one – very, very limited, and then it had been a long, long time before in any event. And all the Federal Rules of Evidence had been completely changed, and everything. And so I had the night before, and I was staying in Fairfield in a hotel, so I just holed up in that evening about 5:00 as soon as trial was ended, and all night, I stayed up all night, reading all of that stuff – Civil Procedure – to try to make it stick and to – in case I was asked any real questions about federal practice. And trying to think of a truthful answer I could give when the inevitable question would be “How much federal practice have you had?” And I did stay up all night, and I made little outlines for myself, and I did all sorts of things, and it was very, very difficult because I wasn’t going into familiar ground at all. And I was introduced to the Committee members and they started the questioning. And the first question was, “Can you tell us the – give us a description of the cases that you have handled for Mexican- American persons who had legal persons and whether you charged money for those or not, and if so what kind of a fee arrangement.” And I thought – Mexican-Americans? You know, you’re just hit right across the side of the head with a wet fish. You’ve been working so hard and you felt anything else, anything that was personal, I could handle, but anything that was legal I ought to study up on. But it never occurred to me to get these kinds of things. And this was someone on the Committee who was very much concerned about pro bono work, and how much pro bono work you did, and all that kind of thing. And I just wasn’t – I mean I could think of a number of things over the years but they don’t come to mind when you’re not prepared.

Miller: Did you know any of the people on the Committee, or were they all strangers?

Judge: The only one I knew, at all, was Sam Williams who was on the State Committee of Bar Examiners with me and we became good friends. Do you know him? Do you know who he is?

Miller: Don’t know him.

Judge: Well, he was one of these very attractive, appealing black lawyers that everybody loved. I loved him because he was a 49er for a while. But he’s one of those people who became the Commissioner, the Police Commissioner for the City of Los Angeles, and of course that’s a whole different thing. It skirts the City Council, and the Mayor, and it sets up – its set up its own Commission. And they were very, very powerful. And Sam was the Chairman of that. He had been President of the State Bar of California. He’d been President of the L.A. City Bar Association. One of those people that everybody wanted and he was at a time when being strongly partisan to people who were minorities was a very good thing and everybody was grabbing for the attractive, appealing ones to join my firm. And Sam was a perfect example of that. He was a great person, and everybody liked him, and he did a great job. And he was, he could tell when I came in. I did not realize that he was a Committee member or anything of that nature. When I walked in he could see that I was nervous, and he just said, “I don’t think all of these people know you Milt, but I know you, and you’re wearing the same suit you used to wear at the Committee of Bar Examiners meetings,” or something, and put me at ease.

Miller: It must be nice to see at least one friendly face.

Judge: Oh, it was nice.

Miller: So how long did that interview last?

Judge: It seemed like 7 or 8 days. It seemed that I couldn’t answer hardly any of the questions, which was very disappointing. One woman who seemed very militant apparently had had bad experiences with older appointees or nominees and wanted to know how many days I had taken off work for illness since I’d been admitted to practice, when I was then 60. And, uh, I was so happy to field a question that I could run with. And I said, “I have never missed a single day from the office for illness or injury since the day I was admitted to practice in 1949. And it was so much fun . . .

Miller: That ended her show, right?

Judge: That was the only question I remember that I could successfully and comfortably answer.

Miller: So the questions were more sort of politically and experientially based than they were intellectual and juridical in nature.

Judge: There was nothing that even touched on technical federal law. There were things like . . . that touched on activism on the bench. I mean that was a real dirty word at that time. That’s what the Senate Committee asked a lot about. Hasn’t changed much. But it was pretty new in those days. You didn’t think much about it.

Miller: Well, Earl Warren did that for us, right?

Judge: Well, he may have.

Miller: I mean that’s where all the anger was pointed. He was considered to an activist Judge.

Judge: I can’t remember where it started. But I remember that I did not become sensitive to it until I started preparing and then I heard a lot about strict constructionist and activist Judges.

Miller: Most recently the questions have revolved around Roe versus Wade. Did you get any questions like that, specifically pointed at a decision.

Judge: No. None that pointed at any legal decisions, or so-called political decisions, really. It was much more on what do you do with your spare time, and what hobbies do you have. Well, I don’t have any hobbies.

Miller: You work.

Judge: I watch the 49ers and I play tennis. And that’s about all I do. And so that was – they were interested in knowing what you did and how active you were and how dedicated you were to things that were near and dear to their individual hearts. And I don’t think – I didn’t think it was a terribly successful – but, you know, you’re nervous.

Miller: Then how did you get the word that Senator Cranston had, indeed, picked you?

Judge: He called me one day. It was a holiday and I had to work that day, and I was down at the office alone. And I guess he called my home and was told where he could reach me. And, you know, I just picked up the phone and said “Hello,” and it’s a big jolt, you know. And he simply announced that, of course, announced that he was sorry he was not at liberty to release this information and I could tell only my wife, but nobody else, because he had some fence mending to do with the Minority Committee – he didn’t tell me quite what it was, he said “I can’t believe that I will get any real trouble from Senator Hayakawa because you were a person that he had picked from the Committee stuff, so I can’t imagine that he would cause trouble. But there are some questions that need to be resolved, and I’m satisfied I can get them resolved, but I can’t authorize you to release the information.”: That may have been because he wanted to do his announcement in the paper, that was protocol for him to do. And he didn’t want me running around announcing in advance. But he called Larry Karlton and me the same day.

Miller: I was going to ask you that. I was going to ask if you knew anyone else who was competing for the position that you were. So you knew Larry. Did you know he was competing as it was going on, or only after . . .

Judge: I don’t think I knew until I got the phone call.

Miller: Were you aware of anyone else that was being interviewed?

Judge: Well, I knew that Bill Byrne who was a Superior Court Judge – where?

Nichols: El Dorado.

Judge: I knew that he was high up on the list. And the names the newspapers were speculating who they were going to be. But the last thing the Bee came out about, two days before that, speculated that Frances Newell Carr and Raul Ramirez were rumored to be the two that – because there were two people to be named at that point, because we expanded the court in Sacramento by two additional Judges and the Fresno Court by one, so we really doubled the Eastern District. And, fortunately, I’d gotten the telephone call before I read the newspaper, so I heaved a sigh of relief. Unless, of course–any type of change is possible.

He obviously – when he named two of them he named Karlton and me although Karlton was first in the article, in the same announcement. And so I figured that Karlton had the highest recommendations. Well, maybe not – the protocol, not the protocol, the rules that Cranston agreed to abide by were that our Committee will send you 6 or 7 names for the two positions and you promise that you – you have the final authority to make the recommendation, but you promise that you will do it from that group and not outside that group. And, what’s his name from the Superior Court bench, John – not John – Long . . .

Miller: Jimmy?

Judge: Jim Long was seriously bandied about also. And I forget who the others –

Miller: And so Karlton was a Democrat, and a liberal Democrat as I recall. And then you were a Republican, but not a real visible, active Republican.

Judge: I was not active in any kind of partisan politics. I was very active on the Superintendent of Instruction, and I was very active in supporting Tom Kuchel, was the last U.S. Senator that I really supported and voted for. But I never changed my registration and I never was active politically in any kind of partisan race. But there were a lot of non-partisan, like School Board and State Board of Education, and those kinds of things I was active in.

Nichols: Had you had any prior contacts with Senator Cranston?

Judge: Yes. I was . . . I became one of the State, the State-wide Committee – it was a terrible name by the way – it was called GOPocrats for Cranston. And I was so angry and so upset at what happened to Tom Kuchel in the primary.

Nichols: When he was defeated by Max Rafftery.

Judge: When he was defeated by Max Rafftery, and I hated Max Rafftery who I believed to be a terrible demagogue.

Miller: And he was the State Superintendent of Schools, was he not? And you had worked with him, or worked around him.

Judge: I had tried to work with him. Bad man – bad. So I, I know – what’s Gualco that was the County Supervisor?

Nichols: Gene Gualco? Judge: Gene Gualco was very active for Cranston, and I joined the group. I forget how it came about that the group was put together, but it was a State-wide Committee on Republicans for Cranston. And I didn’t really know anything about Cranston except that he was reputed to be very, very liberal, and he was the father of the AD – what – Americans for Democratic Action, a very liberal organization.

Miller: And he wasn’t Max Rafftery.

Judge: And he wasn’t Max Rafftery. I spoke all over the State, and people that I knew here, when I called them they would say, “You know, you don’t have to tell me about Max Rafftery because I know how you must feel and I agree with you. But don’t ask me to vote for Cranston.” And I’d say, “I’ll take a half a vote. If just don’t vote, I’ll – I can live with that. I get a half vote.” And frequently they would say, “You’ve got a deal. I’ll do that. But putting my name down for Cranston is more than I think I can handle.” And so I met Cranston when he was campaigning, of course, around the State, and was active in his campaign. And Barbara was very, very active.

We were very upset because Tom Kuchel was very popular, and he didn’t campaign really seriously or hard. He just didn’t think he had to.

Miller: How many terms had he been in? He’d been in a while, hadn’t he? Three?

Nichols: He’s been in at least two, and probably three. I think he was – wasn’t he the Republican Whip?

Judge: I think that’s right. But he was framed, of course, in the campaign.

Miller: Well, tell us the political issue that Rafferty set him up on. Or the personal issue, or whatever it was.

Judge: The personal issue was that a huge article came out in the paper that he was – that in Los Angeles the Los Angeles Police Department busted a pair of people in a car one night, parked, which included Kuchel and somebody who was an admitted homosexual. And in those days that was absolutely death. Just plain death. And their story was pretty credible and, unfortunately for them, there were holes in it and they both put in huge long terms in prison for that frame up which they did. But it sure hurt, hurt Kuchel terribly. And he was very, very popular. And the people who elected Alan Cranston Senator were really the Republicans and the wealthy Republicans in Los Angeles County. When I went there and participated in various activities that whole headquarters was manned by, by Liberal Republicans that you were proud of and they were so outraged that it was strictly an anti- Rafferty thing. And they were largely responsible for defeating Rafferty who was running rampant politically.

Miller: What happened to Rafferty after that?

Judge: Rafferty was defeated and he then left the State and ultimately became the Dean of a Southern Teacher’s College.

Nichols: Troy State University in Alabama.

Judge: It was Troy State, wasn’t it? And then he was killed in an automobile accident not too far down the road. I still had nightmares that he was going to come back. And he was an awful man.

Nichols: That election was, I think, my political education, because I was a died in the wool Goldwater Republican and I thought Tom Kuchel was way too liberal, and I voted for Max Rafferty, and I saw that my vote for Max Rafferty elected Alan Cranston and I never again voted on ideology rather than electibility.

Judge: Well we had – Barbara and I worked together on two consecutive campaigns. One of them was . . . we couldn’t . . . we became so upset with Max Rafferty as the State Superintendent that we spent – Barbara spent full-time and I spent almost full-time – at right Rafferty for reelection as State Superintendent. And I can’t even remember – Oh . . .

Nichols: Was that Wilson Riles?

Judge: We elected Wilson Riles. And a Committee of eight of us sat down with Wilson, we were all on the State School Board, and we said, “We need you.” And he said, “I’m very flattered and I appreciate it, “but you need to have someone that can defeat Max Rafferty. And much as I’d like to try it I don’t think I can make it. I think there’s too much against a black and the whole problem.” And we said, “If you’re willing to try it we want you to do that, even though we may lose. But we want to try. We know we have to get rid of him and we want to put in the best person and not the most electible. And, if we’re going to shoot, we’re going to shoot high.” And he said, “Well, if you really mean that I’ll do it. Because I’m going to be quitting anyway.” We said .. . . by that time he was the number three ranking person in the State Department of Education. . . . and we said, “You’re going to lose your job of course.” And he said, “I’m going to lose it anyway, because I’m leaving. I could not stand being here under this administration once more, so I don’t lose anything.”

And I – it was one of the most exciting elections I ever can imagine or believe. Our average donation was between $1 and $3. He spoke. We programmed him and he spoke every single day, day and night. We gave him Easter Sunday off. The rest of the time he campaigned and he just mesmerized people. He was so competent and so good. He got lazy in his last term, and he abdicated an awful lot of his responsibilities to people that he trusted, but boy, the first three four year terms he was just marvelous. And he did so much. And that was such a great accomplishment. We had to get by the primary first, because Max was pretty sure he’d get elected in the primary. And we barely got by the primary. Then we went to work and I don’t know how we did it, but it was just many, many people dedicated, really dedicated. And that was a very, very heartwarming election. And we were all terribly proud of what he was going to be doing, and did do. And then we went almost right from there into the Senatorial thing, with Kuchel.

Miller: Do you know what Tom Kuchel did after he was defeated?

Judge: Yeah. I forget . . . he went with a law firm, and a good law firm.

Nichols: Wyman, Nauzer.

Judge: Yeah, it was that man who married all those . . . he was a very prominent lawyer who somehow married all of those wonderfully attractive movie actresses. He was – yeah – I can’t . . . You’re awfully close to that, but that second name is not – Bauzer.

Miller: Greg Bauzer. He married all the beautiful starts. Yeah, that’s right.

Judge: He married all the beauties. And then I lost track of him.

Miller: He truly disappeared and that’s fascinating. To have been such a prominent person and then just be gone.

Judge: I got to know very well his local administrative assistant, whose name I’ll remember soon, a man that I liked a great deal. And I remember we were in the, coming right down to the bottom line for the Senate campaign and I heard what I thought was reliable that Tom Kuchel was going to endorse Max Rafferty. And I thought – ach – and I called my friend, his administrative assistant, and I said, “I’ve just been crushed, because I’ve been campaigning really against Max Rafferty and because of everything that happened with Tom Kuchel, and, if this is true, it will just cut the rug right out from under so many of us.” And he said, “Okay. I will tell you what happened. But I shouldn’t tell you, but you sound like you’re desperate.” But, he said, “They did indeed, and they had a high powered group, they sent for Kuchel and wanted to interview him, the Republican King makers, and he said he went in the room and they told him that they needed his support but he was not going to be required to make any speeches or any praise or anything of the kind but simply a – they were willing to settle for a simple statement. And that was that I am supporting for and voting for Max Rafferty. And in return for that we have a list of jobs that we will give you, commit to give you, in return for that, one of which would be a U.S. District Court Judgeship, another would be a this and a that – big, big things. And,” he said, “Kuchel listened and he thanked them very politely and he said, ‘The answer is no and I would like you to tell Max Rafferty that he can take you and he can take all of those positions that you have identified for me and shove them all up your ass.”

Miller: Yay.

Judge: And, he said, “That was the end of that, but they came – we were all very, very nervous that he might go along and make a kind of a, a kind of an endorsement. But,” he said, “you would have been proud of him, I’ll tell you.”

Miller: Now when you went back to the Senate for your confirmation hearing, did you take your whole family? Judge: No. I just went back alone on the confirmation hearing, because I didn’t feel that – well, I felt that I might not even know what their vote was, but it was just attending a meeting and there was no celebration or anything like that. And it didn’t seem to be a big thing. And, I don’t remember a great many things about the confirmation hearing. Mainly what I remember is how unbelievably wonderful – names are escaping me – I was on the calendar the same day, and the same time, as – who was the U. S. Attorney from San Francisco? The black man that was so colorful and –

Nichols: Billy Hunter.

Judge: No. That became U.S. District Judge?

Miller: Thelton Henderson?

Nichols: No, he wasn’t U.S. Attorney. Cecil Poole?

Judge: Cecil Poole. And he was at his greatest. They tried to embarrass him, which was pretty silly because he was a tough guy. And, I kind of gasped when I heard a question posted that, in effect, was in effect critical of activism and suggesting that he was an activist. And it was an insulting kind of a question. And I was surprised because I knew what his reputation was and he didn’t have to worry because he had a lifetime appointment anyway, and it’s not that much a difference to go from District to Circuit, and he wasn’t going to compromise any of his principles at least, and maybe wouldn’t have anyway. But he let the insulting question pass as though he didn’t recognize it as an insult and answered it kind of nicely and blandly. And he waited until a little later when there really was not reason to attack and one unsuspecting Senator came up with something or other, and he used him as a puppet and then blasted him and the entire Committee right out of their socks. And nobody knew what to do or what to say – nobody was expecting this and he just very quietly bided his time until he got to an easy spot and then attacked. And they kind of didn’t say anything, and he just left – finished with a ringing attack. And, of course, they busily hurried to confirm him as fast as they could. They took on a very tough guy. But it didn’t seem to me that the questions were all that bad. Some of them would say, “Do you belong to any organization that discriminates for membership by color, or sex, or whatever,” and I would say, “No, no, no.” And the next question was, “If you were invited to join an organization later, what would you do if you found that it did discriminate?” And, of course, after 10 months of hanging by my thumbs out to dry, I would have answered anything that they wanted to hear. I almost wanted to say, “Tell me what you’d like to hear. I’ll answer it.” And they said, “What would you do?” And I said something like, “If I learned that there was such discrimination I would try to change it any way that I could, and if that was unsuccessful, I would resign.” I figured I might as well say it since I didn’t belong to anything. And we went through some of those kinds of questions and then I forgot about them, of course, after making this solemn pledge of what I would do. And I had always, oddly enough, wanted to be, for some reason I wanted to belong to the main Sacramento Downtown Rotary Club, which met every Thursday at the old Senator Hotel. That was the only service club that I had any interest in belonging to, and I really don’t know why except it was considered the premiere one of the men’s service clubs, and that sort of thing. And, oddly enough, right after I came back from, and was confirmed, I got an invitation for the Rotary Club and I said, “Oh, that’s wonderful. I’ve always wanted to belong to that.”

Miller: To this all men’s bastion of power.

Judge: Absolutely. And so I immediately accepted and in the middle of the night woke up and thought what have I done? I gave my word. I said, “I’m not going to try to change the Rotary Club’s policies. What am I doing?” And I had to write letters to all of the people that had written to me, and all the stuff that’d they’d been cranking up for this thing, because in order to – there could only be two people in a category, which was the thing that made it quite different than any of the other service clubs. But of course they would play around with those categories and instead of having only two Judges you could have maybe two livestock Judges, or whatever –

Miller: Two muni Judges, two superior Judges –

Judge: Whatever. Anything. And so they made a category that I would fit and so I had to write everybody and say, “I had forgotten momentarily, because I didn’t belong to any organization, but certainly the Rotary Club does discriminate as far as women, and, so, I reluctantly withdraw,” and etc.

Miller: And so Karlton made it to the bench first.

Judge: Yes, because we were nominated, or we were named together but shortly after that MacBride announced that he was going to take Senior status, and he was going to take it on his birthday in March. With that Karlton was moved out the slot that he and I were in together and moved over to the MacBride slot, to succeed MacBride. That was much easier to do to get a white male replacing a white male. And so they didn’t seem to have any concern about that and they scooted him through fast. And they left me out there all by myself to deal with all of the nasty things that I had to deal with. Which was very unkind things about it’s been 10 years since a new federal Judge has been appointed in Sacramento and surrounding area and certainly we deserve something better than another white male, that kind of thing.

Miller: Well, they’re still saying that. At least the male part. They’re still saying they deserve something better than a male.

Judge: That’s right. And then they mounted an attack where they took Jimmy Long back to Washington as a replacement and I waited and waited, but I was plenty nervous there. This was the most needy district for getting new Judges and we got priority over San Diego and L.A. and San Francisco. And we were the first ones. And I remember that when Cranston spoke out he was still doing the campaigning for the-for that position-and he said, “Although all these things are true, I am not interested in” whatever the word is you use – integrating, or whatever – “the bench in each district. I’m interested in seeing whether there is an overall fairness and sampling in the State of California. Which means looking at all four districts.” Then I became enormously liberal toward appointees – the nominees – in San Diego and Los Angeles, rooting for them like crazing to get blacks, women, anything you could get I would heartily endorse. And they did. And so that finally, that whole problem finally dissolved.

Miller: As I recall, you were still pending when they named – when he submitted Raul Ramirez’s name.

Judge: Yeah. Ramirez came in to fill the slot that Karlton had filled when Karlton and I were first named, just the two of us. And then Raul he picked up after that.

Miller: And so did you come – I mean I really know the answer to this. But Judge Karlton came first, and then you came.

Judge: Yes.

Miller: And then Ramirez came after you actually, to get on to the bench.

Judge: Right.

Miller: And we talked a little bit about your first two horrendous cases.

Nichols: But, before we get into that, do you have any information as to whatever happened to Jimmy Long? He apparently was well up there in terms of consideration and was a Superior Court Judge and then all of a sudden they dropped down to Raul from the Muni Court, which was quite a jump as far as judicial status goes.

Miller: Not to mention, wasn’t there a huge different in their ages? Ramirez was – we called him the “baby Judge” when he was named. He was very young.

Judge: He was 35.

Miller: And Long was a grown-up by then.

Judge: I don’t know. I just thought that they figured he wasn’t going to fly and whoever did it certainly did an excellent mixing of ethnicity and sex and . . . because there were a number of minority Judges that were appointed that time in San Diego and in Los Angeles.

Miller: Well, I don’t know but do you think it ever really pays off to try to go around the system like that?

Judge: I don’t know.

Miller: I mean, who’s going to support you when you’ve gone around the system?

Judge: I don’t know.

Miller: It’s interesting, but I can’t imagine why Senator Cranston would jump up and down to help you.

Judge: I can’t either. I think it may have just developed that way.

Miller: Okay. So now you’re here.

Judge: Now I’m here.

Miller: Now you’re here. You’ve had your training. Your one week training, which I’m sure . . .

Judge: It was very successful.

Miller: Yeah. Helped a whole lot, right? And we do know that you’d done a lot of criminal law, so you did have background in both areas – criminal and civil, right?

Judge: Yes.

Miller: So you had that advantage. But tell us what your first thoughts are when you get on this bench and you are a federal district Judge.

Judge: Two main driving thoughts, both of which involved “I wonder if I could still go back to my old firm and they would take me,” ’cause I found it was much more difficult to go from an advocate to a judicial officer and so I handled it very, very well. I had my first law and motion calendar and I took every case under submission to think about it some more, and reread things, and I came back to chambers and put all of those files on the back bar, and I never got to them for about three or four weeks. I mean there was so much immediately and I’d forgotten everything. I’d forgotten what was in the briefs. I’d forgotten what the major issues were. It just went right out. And I said, “I’m never, ever going to do that again.”

Miller: Relatively cheap lesson, actually. I mean I remember Judge Wilkins telling each of his clerks as we came in, “The one thing you may never advise me to do, ever, is to take a case under submission. We’ll move it one calendar, but when we take it under submission that sucker’s gone. We’ll never get back to it.” And he was right. We never took a matter under submission in my whole two years.

Judge: Really. Well, I learned it fast because I knew that if I had prepared carefully, and done everything that I could to read the briefs and talk with the law clerks and argue with them and think about it, I made a tentative decision in my own mind before I went in to hear the oral arguments. And I figured that at the end of the oral arguments I was in the best position to decide the case that I ever could be in. There was nothing that I could possibly do, because if I was not able to prepare fully before the hearing, I would scratch the hearing and, since I was not under oath, would simply say “We’re not going to be able to get to your case today. I’m very sorry but . . .” I scratch it usually the day before, or as early as I could, so they’d have some breathing room, but once I listened to oral argument that was the final thing and that was the final solution. And I really believe that, that I’m – we’re in a better position to resolve the case right after closing . . . right after arguments and the briefs have been read.

And I profited by it in a way that I didn’t expect. A bonus. And that was that I’d tentatively make up my mind that the plaintiff should win, or whatever decision the tentative was, probably in 90% of the hearings I would stick with that tentative decision. But it was more important than that because many of those decisions I was better, I was more certain that I was right than before the argument, because the more I flushed it out with questions and the more I argued with the lawyers, the easier it would be for me to say this had some surface appeal to me as an issue, but it doesn’t hold up well under the light, and I now feel better about my tentative decision than I did before. And that was a bonus that I didn’t expect. And the other thing about it really was that you have to decide it then, and you can’t take it under submission because you may never get back to it, but if you do it will be a brand new case and you just have to start all over again, and read all the briefs, and go through that whole process.

Miller: Yeah, because when you walk off the bench, there’s another matter waiting for you. Either a trial, or a new law and motion calendar, or some kind of criminal . . . , right?

Judge: Right.

Miller: And you’ve got to move right into that. Had you expected that? Had you realized?

Judge: No. All of those things I had to learn the hard way. But I was able to learn them pretty fast. You can tell this is not the way to do it.

Miller: How about – I mean I was here when you came, and it always surprised me that Judge MacBride who was still around and Judge Wilkins both were very reticent to make any suggestions whatsoever to any of you. That they would let you find your way. And I always thought that that was unfair. On the other hand, his attitude was always, “Every man has to build his own bench. When he wants to ask, he’ll come and ask. I can’t build his bench for him.” Did you find that odd, that they sort of just left you there?

Judge: I didn’t think about it that way. But, MacBride was much quicker to volunteer advice and then it’s difficult to reject the advice. Wilkins did not volunteer, but if you came and talked to him he, of course, could be wonderful about it. But you didn’t feel that defensiveness. Actually, I – MacBride was so busy, he was so overloaded with cases that he had just shelved all the time that he was doing the Roseville Bomb Case, and Karlton – I don’t know how he did it. I certainly would have gone home, or run away somewhere. He had law and motion calendar every single day. And I don’t know how he prepared for it let alone went through all of those cases. But he did. And, uh, he was pretty angry. But he was the only, other than -what do I want to say. Karlton was the only one that was approachable so I’d go down there and go over these things with him and I found that, for a long time, my decisions would come out the same way as his and we were considered in the form sheets, you know, when the lawyers check you out, to be this far apart. I mean, with Karlton it’s liberal, Democrat, anti-War, you know, every one of those things, and mine would all be exactly the opposite. Prosecution oriented, Republican, just exactly the opposite. But if you do your job correctly, and do it the best way you can, there shouldn’t be a whole lot of difference in your decision, because you’re trying to find what the law is and not what you think it ought to be.

` And I learned that more, let’s say more pointedly, when I found out that John Sapenour, who was a very close friend of mine and both of us were sworn into the District Attorney’s office on the same day, and we were very, very close friends, and he told me that he was just sick when he had to serve with somebody as liberal as Larry Karlton on the court and that he felt he was not going to be able to get along, and that worried him because he liked to be congenial, and John Sapenour was a lot more conservative in almost every area than I was. And he told me that he cannot believe he was saying these things, but almost every single time there was a vote on any issue of any consequence in the Judge’s meetings, he and Karlton lined up on the same side and when they reached a point where he thought “I can’t stand it here any longer,” he said he talked with Karlton about the two of them maybe leaving the Superior Court and – resigning and opening a law office together.

Miller: That would have been fascinating.

Judge: He said, “It’s hard for me to believe that I said a thing like that.” But of course John had all kinds of integrity and he’s going to do the law, and he was very bright, and you ought to be able to come up essentially with the same result in most cases.

Miller: Or we’ve got a big problem, don’t we?

Judge: Yeah, we’ve got a terribly big problem.

Miller: One of the other things that I always thought must be interesting to someone coming onto the federal bench, especially someone who isn’t real experienced in the federal court, as you say you weren’t, is the whole idea of setting up a staff, especially young law clerks, on whom you’re going to have to rely to such an amazing degree because your time is so filled. How do you go about that?

Judge: Probably the opposite of what you might think. I thought it was going to be very difficult to sign things that would go out for publication that somebody else had written that didn’t sound like me. And I thought, “How do I correct or change writing that a law clerk does without saying ‘I don’t know why I’m telling you this, but this is just me,’ or ‘this is the way I like to say it, or like it to be phrased,’ or whatever, and ‘I’m not really criticizing your work, it’s just probably styling. And you can’t really learn what’s in my mind as style.'” And then I realized that over the years I had acquired four or five law clerks who were real stars. There are some very good ones. And certainly entirely acceptable and good, but certainly there are a very few, in my opinion, real stars. And I had several of those and they wrote just quite the opposite style, if there is such a thing, as any of the other stars, and yet they all wrote beautifully. And so, I decided that it’s not stylistic. What I’m looking for is clarity and brevity, and I’m looking for something that flows well, and easily. And I can live with all kinds of styles if it’s good writing. And that made me feel better. That I didn’t have an idiosyncratic style that somebody had to try to copy. And when I realized those kinds of things it was easier.

But then I had the reverse thing. I used to reach a point where I’d say “Write something that I can change, and correct, because otherwise you’re going to feel that I am a lazy lout who rubber stamps everything so I can go out and play tennis.”

Miller: Right, or panic the clerk that maybe you’re not really reading it. As a clerk that used to be a – if it came out too fast you’d think Oh, my God, it’s not my job. Did he read it? And of course he always had.

Judge: And there were times, a number of times, when several of my law clerks wrote more like me than I do, and I not only could not improve it any, but if I changed it it wouldn’t be as good. And I had to keep explaining to them that I had read it all. And when you get real stars . . .

And that’s interesting with Judges, too. When you sit around and talk about staff we always all agree, no matter how diverse, we all agree on who the stars are – the “A” students or the “A+” students. And we all . . .

Miller: Okay. Right before we left we were talking about law clerks. And I think I’ll restart the conversation by saying . . . had you had an awareness before you took the bench that one of the jobs you had was training young lawyers while you were resolving very important issues.
Judge: I think I probably did not really think about that. I had the feeling that they probably would be training me. I got David Hall as my first Senior Law Clerk. And he was trained of course. He was running the . . . and had set up the program for writ clerks here and he was doing all of that, and then he was also trained just generally in law clerking, and that’s kind of what he wanted to do. And then he picked my Junior Law Clerk – he and Todd Fogarty from my old firm. Because I figured that Todd worked more for me than anyone else and knew more what I was like, and what to expect from me – more than I would be able to explain it. And that worked so well, because Kathy Banke was the one they agreed upon and picked, and she was just outstanding. And then I just kept looking for clones of those two.

Miller: So now when David left and Kathy became Senior and now you had to pick a new Junior Law Clerk, how did you do – what procedure did you follow?

Judge: I had the two of them interview first and screen down to eight or nine people. And then they gave me those and I reviewed them. And then they set up interviews. And we all do it, I find, quite differently. I would have the two law clerks, my Senior who was about to leave, and my then incoming Senior, together interview the prospect. And they would tell that person what the job was about and the things that I emphasized and that I made clear to them and various kinds of – what sort of chambers is it? And then when they were all through, that prospect would come in and I would interview him or her, mainly to find out whether the chemistry was right. I was very concerned about coming from a very active, gregarious law firm, where I rushed around the room in the suite and talked to him or her, and what do you think about this, and would you like to work on it with me because I won’t be able to do it alone and I’ll need some help, and that sort of thing, to all of a sudden no contact or no communication at all.

I used to think that the Judges would talk a lot to each other, but not true at all. I think we were so jealous of each other’s time that we did not want to bother the other Judge, and if I had a problem that would take me an hour and a half to outline for the other Judge, he’s not going to have that kind of time to spend and would be champing at the bit to get me out of there. And if I could do it in 5 to 10 minutes I wouldn’t need to go see him – I could figure it out myself. And so there really, there really is a minimum of discussions back and forth. We meet once a week and that’s about it. And then we have retreats in which we get a lot done. But it’s all very withdrawn and we’re just all in this little chambers and the phone never rings and it’s very lonesome. And so I felt that I wanted to find good chemistry first because we’re too close together and that that was the number one requisite that I would – that we’d like each other and get along with each other. And other things, you hope, will fall into place. But that was always the first requirement, because you do discuss all these things and they become sort of part of your extended family, as you know, and it makes a big difference. But it’s a, it’s a solo kind of operation and I know we all do it quite differently.

I know Judge Karlton has a shouting session. He and his two law clerks and maybe somebody else sit in and here is the poor applicant, you know, turning from one to the other, and Karlton is saying, “Why would you do a thing like that,” you know. And I’ve asked and he said, “They’ve got to learn that they’ll get bashed in the head, and that it’s a very tough job and very demanding, and all those things,” and I said, “I know that, but if you tell them that, some of them are timid like I used to be and they wouldn’t want to come to work for you because you’re too mean. And you’re depriving yourself of somebody that would be a very good law clerk if you were a little gentler in the approach.”

Miller: I remember when Judge Karlton first came and his chambers section door opened into our chambers section door, and he would come I to talk to me because I did all the civil rights matters in our chamber, and so he would come in to say, “What do you think about this.” But when he first did it he would come in yelling.

Judge: Of course.

Miller: And that would make my mind go blank, because it was so quiet in Judge. . . And I remember the first time I just sat there staring at him and he kept yelling at me and saying, “Well, what do you think? Don’t you have a thought?” And finally I said, “You know, I can’t hear what you’re saying. You’re yelling at me.” And he was very startled, and he kind of laughed. And he said, “Oh, I guess that won’t work here.” And so he went and sat down on the couch and talked quietly and we had a good conversation. But I couldn’t cope with it and he was so startled, because that is his style, indeed. Now, I got used it over time. He yells at me now all the time.

We were talking off the record about how things have changed over time in kind of chambers administration, and many of the newer Judges have gone to what we will call lifetime law clerks. People who come to work for them and then just stay with them for years. And you have not done that, is that correct?

Judge: Yeah, but it hasn’t been because I wanted to. I have, when I’ve really liked somebody’s work, I’ve said, “I don’t want to urge you to stay because that’s interfering with your life that’s ahead of you, and mine is a long way’s away. And that would be for my convenience, but it might not be the best thing for you. And so, you’re going to have to make the move. But I’m telling you simply that Barkas is willing and if you want to stay here more or less indefinitely, which means permanently as long as we can both stand each other, and it’s terminable at the will of either party, if you want to stay here on an indefinite basis as long as it works, all you have to do is say so because I don’t have any of these rules.”

I know that Judge Karlton – he doesn’t not – not only will he not hire for longer than the two years, and I’m sure the reason he gives is just that, but also he won’t hire an extern. He says it’s not fair to other applicants for a job, because if my law clerks pick up an extern for two or three months or a summer and we like them, I don’t think it’s fair to give that person a head start in hiring. And I say, “Well, you’re a lot more thoughtful about other people and fairness to them than I am. I will grab whatever I can get.” And he said, “Well, I don’t think it’s fair.” So then he comes around and works on me to hire one of his externs who he thinks is very good but he won’t hire them. He is something else.

Miller: Oh, my.

Judge: There is a certified, real character. He does not pretend he’s a character or act like a character, he is a character.

Miller: And as to the other staff. Did you bring a secretary with you from the firm?

Judge: No I didn’t. And I tried to. I tried to hire Mimi and bring her over. And she said, “It wouldn’t be enough action for me. I’d fall asleep.” And I’m glad she didn’t. Because I got Millie, and Millie was just very, very good. The only problem was that Millie could be shocked. Millie is one year younger than I am and so she comes from an old school. And so when Rich Brown would write me these awful, awful insulting letters indicating that this is a copy of which he sent the original to the House of Representatives recommending impeachment, poor Millie would just go into a state of shock. And then would hide the letters because she didn’t want to upset me by reading these insulting and terrible things that he would say.

Nichols: Since this is for posterity, it probably should be indicated that Rich Brown is well known for speaking tongue-in-cheek.

Judge: He is very funny.

Miller: But, on the other hand, I would presume you, as with many of the Judges got some pretty threatening things said to and about you, and had some experiences with anti-Semitism, because you are Jewish. And why don’t you talk about that a little bit. About how that comes up and how you deal with those kinds of things.

Judge: I haven’t received as many as I thought I would. I figured that I would have some very, very awful letters, and they actually made me sick to my stomach where you think you’re going to wretch because I’ve never been exposed to that kind of insult–a vicious really hateful thing. It was not nearly as often or as many times as I thought it might be. But the biggest ones, perhaps, had to do with that strange case where I decertified a former Nazi from his citizenship which I thought he had improperly obtained. And that evoked something else like I’ve never seen from both sides. Hateful letters about why I let this terrible person stay here. He was dying and in his late ’70’s at the time. And I . . . but more I go the other kind that were letters that were Nazi type of letters attacking me personally for my own ethnicity, which really kind of make you sick when you see them. Because we’re not really exposed that much to real hate and it shocks you every time you really are the butt of it.

Miller: Do you find that that kind of anger and animosity arises much more in the civil context than a criminal context or vice versa?

Judge: Do I experience in more in a civil than in a . . . I don’t think that I’ve experienced much of any in a criminal – they don’t say those things. You find out that they’ve said them and all of a sudden you’ve got around the clock surveillance because a threat was made about you. But face-to-face I’ve had very little experience in the courtroom with some obstreperous defendant who was shrieking and yelling and that sort of thing. That has almost never happened in the 21 years I’ve been on the bench.

Miller: It’s interesting, isn’t it. I remember Judge Levi, when he was the United States Attorney, being surprised when a criminal defendant would take a federal defender and kind of roll over on the criminal charges, but if there was a forfeiture to follow it, now they wanted a real lawyer. It was the money and what they would return to that was of more concern to them than the loss of freedom for a period of time.

You mentioned the isolation. And obviously we’re sitting here and we can look around and see that physically there’s no way that you can communicate between chambers. You people are all over the place and widely separated. But did the attitudes of people that you had known before in the community seem to change once you had become a federal Judge?

Judge: Not as much as you might think for the reason that I’m older – I think I’m older than anybody – any lawyer that has appeared in my court on business. I don’t think that I’ve had a lawyer in my courtroom that was as old as I was when he was in my courtroom. And that is a big, big help. I would gladly trade much greater mental, academic acumen in place of seasoning. When you are older than the lawyer and have been around quite a bit longer than the lawyer, for some reason or other the macho aspects of his character and the taking you on kind of thing are greatly diminished. I’m shocked when I hear – when we have young Judges where the lawyer is older and been around longer, they just can’t contain themselves if they disagree with the Judge’s ruling. They simply can’t. And I’ve thought back to see if I was subject to that same sort of thing and I really find that I was. If I felt that a relatively new Judge I didn’t particularly like, and he was not sympathetic to my position, I would get a lot angrier and get a lot more combative than I ever would with an older Judge. And I think that’s nice.

Miller: Well, it is interesting. We’ve had some very young people appointed.

Judge: Yeah. Now some of them bring this upon themselves. You get someone like – who was over in the state court that used to be so difficult that retired early and – [text omitted]. Those guys when they came on they had a chip on their shoulder. It was almost saying, “You may be from New York City and have 35 years of experience but you’re not going to make waves in my courtroom, Buster, and don’t try, don’t try . . .”. You know, that kind of stuff right off the bat before the lawyer had done a thing. They want to serve notice, “You’re not going to push me around.” And that’s too bad because they become defensive and some of them very much so and very difficult to deal with.

But people like David Levi are as gentle and as kind and they don’t attack, they’re not confrontational, and yet he’ll take a lot of flack that I’ve heard about that I can’t believe he would be subjected to, and particularly by people that I know who have been in my court a lot and have never evidenced those characteristics to me. And when he first talked to me about it he said, “It’s upsetting to me because I know that this man is a very good lawyer, and has a good reputation, and his stuff is good. Obviously I don’t agree with everything he says, and when he doesn’t like the rulings I make he can get just really out of line.” And I said like, “What is out of line for you?” And he told me and I said, “That’s out of line. You have no – you shouldn’t put up with that, you should be subjected to it. You can put up with anything you want in your own courtroom but you should never be subjected to that kind of thing, and particularly from a lawyer who is as sophisticated and as good and knows what he’s doing as much as this one does. I can’t believe it.” And he said, “Well, I couldn’t either, and I don’t know where to go from here, and I don’t want to get too tough,” and all that. And he said, “Do you have any idea why?” And I said, “Sure, he’s threatened by you. His masculinity is threatened. You’re much younger than he is, and he’s been around a long time, and he’s acquired a reputation in which he undoubtedly believes, believes his own press notices, and he knows he’s good. And he just can’t handle something like this and it just offends all of these things that get started. And it’s too bad because I would not have guess that he was susceptible of this, but he’s a fighter and he’s a trial lawyer, and it’s too bad. But I would sit him down real hard. You just don’t have any business subjecting yourself to this.

Miller: Well, and it can be contagious.

Judge: Oh, yeah.

Miller: Now you’ve been on the bench 23 years.

Judge: Almost 22.

Miller: Almost 22. Okay. And if you had been appointed the first time you thought about it you would have been on the bench 50 years.

Judge: 100 years.

Nichols: 40 years.

Miller: Okay. Can you even imagine that? I mean would that have been a good thing, do you think?

Judge: I don’t think so. I thought at the time it was a great disappointment, but I would have missed a great many things that not only did I like in my life, but I think I learned a great deal from cases I handled. I was 43 years old at the time and there were a lot of things I’ve done since then that have been very important in my own outlook and everything else. So I don’t think it would have been a good idea. Plus that I would have fallen prey to this awful – these awful things that Judges are just as susceptible to doing as lawyers are. You –they’re talking all the time about, “Look what kind of money I could make if I were outside.”

And I had a wonderful lesson to learn. I had a very bad complex that we in our law firm were earning a good deal less money than almost every lawyer I knew. And that was upsetting to me just as a matter of pride. And it so happened that over the years I represented around 45 lawyers in different areas. Sometimes they were partnership dissolutions, sometimes they were domestic. There were all kinds of cases, including some criminal cases, and I found to my amazement that every one of those lawyers that I represented was lying outrageously about how much income he was earning. He was always earning way more. At first you think, well now he’s telling the truth, or rather now he’s lying because he doesn’t want his wife to get at all this money and so he wants to talk poor mouth. But then I realized that wasn’t it at all. They just want to make a show and a splash and then pretending that they slip when they tell you how much income they earned last year. But it’s never “I earned $300,000; it’s “I was amazed to find out, and it kind of surprised me, that I had earned $200,000 more than I had planned on and that I,” and you know, you think he must be making millions, millions. But I didn’t find a single one that was telling me the truth. Not one of them.

Miller: Well, it is interesting. I’ve told many young people who talk about going into the law who want to know how much money they’ll make, “Just remember, you’re selling your time. And that’s finite;. You know, and at a certain point people aren’t going to pay much more for that time. And so it’s not like being a stock broker, or a trader, where theoretically you can leverage and maximize and so on. You’re selling your time kid. That’s it. That’s all you got.”

Nichols: Is it . . . do you have any opinion as to whether it does or does not make a difference to judicial appointees as to whether they have ever been in private practice and had to deal with private clients, as opposed to always having had a public agency practice?

Judge: Well, I think we all fall prey to these things that we all say, like, “Well, it’s obvious he’s never been in actual law practice and now he just leaps onto the bench and he doesn’t have any real training or schooling or grounding,” etc., etc. That’s such an overstatement that I couldn’t even say that I think it’s primarily true. Because I’ve known some awfully mediocre lawyers that have been put on the bench and they’re going to do a poor job by and large, or they’re weak Judges. And I’ve seen some scholarly people, you know Leonard Friedman never was in private practice and he went from private practice to the Muni Court doing the most mundane, fender bender stuff. He was delighted. He wanted to become a Judge. He thought that was a good thing for him and he wanted to do it. And he loved that. And then he went on to the Superior Court, and then he went on to the Court of Appeal and in every area he distinguished himself, I thought, in whatever contact I made with him. And it’s sort of when you’re good, you’re good and you’re going to adapt.

The same way that when you talk to young lawyers in classes and other things and they want to know about how you project in the courtroom, how angry you might get, or how quiet, or whether you were a shouter, or what is the better way, and those kinds of things. And the only answer I ever give is, “I’ve seen some absolutely wonderful lawyers who never raise their voices, never shout, but are absolutely effective in their way, and some equally wonderful lawyers who shout the entire time. They just shout, but they’re effective in their way. As long as you’re not acting, or posturing, or trying to fool anybody, or to copy somebody else’s style because it seems effective the way he uses it, all of those things I believe to be mistakes. You have to be your natural self and if you are person who shouts when he gets angry or who becomes exercised, or whatever, that’s your style. And I don’t think it makes any difference what your style is so long as you’re true to what’s natural for you ” And I think that’s the biggest mistake. We get, you know, new young lawyers that try their first case here and they immediately phone and say can I come by and talk to you. It has nothing to do with one of my cases, etc. And they want to know, “Can you give me a critique. Nobody tells me how I’m doing.” And I say, “I think it’s a big mistake for you to do this. In the first place Judges are not uniformly cruel people, and if you’ve gotten your first case and gotten banged in the head, that’s where you learn. But for me to say you did a lousy job is just very hard to do.” And you don’t want to break a person’s spirit. And it’s all very well to have him or her say, “I’ve got a thick skin and I just want to know what the unvarnished truth is,” it isn’t so. They want to hear that they did well and sometimes you can break their back if you’re harshly critical, and maybe you’re not right. Maybe you aren’t any better qualified to be critical than somebody else who may thing that the performance was a good one. And you’re going to rely too much on what that Judge tells you when it might not be anything that you ought to be relying on. And then they’ll say, “How do you really learn then, when nobody’s sitting along beside you riding shotgun?” And I have always felt you learn when you lose cases. I never once learned anything when I won. I was way too good for that. I was marvelous. I did exactly the right thing, and I was a genius. But boy do you know when you’ve made blunders and when you’ve been whacked across the side of the head and you never make those mistakes again. But you have to, you have to live with the mistakes. But there isn’t any way to go to somebody and saying “Tell me how I did.” I think it’s a mistake.

Miller: Well, now, how about you don’t see a difference between public lawyer/private lawyer, do you see any greater or lesser difficulty between a Judge who comes on the bench and has no civil background, only criminal, versus one that’s had only civil and no criminal? Or do they start from equal starting point?

Judge: Well, that’s another matter of opinion. I believe, personally, that to do a good job of prosecuting a criminal case is the best training a trial lawyer can get. And the reason is there are no short cuts. In a civil case you call the defendant to the witness stand and prove half of your case by making him testify first. You can’t call the defendant to the witness stand, and for all practical purposes you can’t commit – the defense, in effect, has a free shot at you and you can’t get back at the defendant’s lawyer because he does what he’s going to do and if he gets an acquittal there’s nothing you can do about it. But if you get a conviction there are all kinds of things that your opponent can do about it. And so you have to be a thorough craftsman, and I think you need to be a good, outstanding even, engineer to do a successful and a good job prosecuting. I think defending is more of an art than it is a craft, and you may or may not be good in that area also. But it’s quite different and it’s a different focus. I think if you can successfully prosecute and/or defend in a criminal case, and do a first class job, you can try any kind of case well. I think that I learned nothing but criminal law for my first few years and it was the best training I think I ever had, and I think I had a jump on lawyers in civil cases because you can learn the substantive law for a civil case but you can’t learn how to prosecute or defend it. And, so, it depends upon where you want to come from, but if you want to be a real litigators and be in court a great deal, I think you have to have, to be grounded in prosecutorial training. I think you just have to know. I never had any problem trying a civil case, except that the quality of the lawyers opposing me in those days was considerably better than the quality of the lawyers defending criminal cases and I got a false sense of security that I was a real hot dog until I ran into my first few civil cases when the opposing attorney would – like Russell Harris, or Jerry Desmond – would pick me up by the front of my shirt and slam me against every wall in the courtroom and just beat me up. And I learned that I had tougher competition. But apart from that I felt comfortable prosecuting any criminal case, and therefore, almost any civil case.

Miller: And you think it contributes on the same level to judging?

Judge: Yeah. The big mistake, I think, that’s made about Judges, is this foolishness about – what is the – what kind of a – he’s supposed to be even tempered and even handed and quiet and thoughtful and we call that good judicial temperament. That, I believe to be a terrible misnomer. Because I think that a person who is well liked by all of his colleagues, and is a fine, gentle person, polite, is also run the risk of being a very weak Judge. And I think some of the roughest, toughest advocates whom you would never say has judicial temperament frequently turn out to be the best Judges, because they know what their obligations are, and they know what it is to be mean and tough if they have to be, and they don’t hesitate. That’s their job anyway. But I think that a good part of the time those who are considered fine fellows, good companions, congenial, frequently are very weak people and become weak Judges.

Who was it? One of the Judges who was on the bench when I was here years ago and I asked about how he was on the bench and the lawyer said something like, “When he walks into the courtroom and ascends the bench, it’s like somebody just walked out.” And we had some of those. And they were nice guys, but they always compromised. In civil cases it became a joke almost to throw in a cross-complaint, even if you had to make it up, so he could deny both sides relief.

Miller: At least he’d get something done, right?

Judge: He’d get something done. He got something done. And I don’t think that those people helped the profession, or any of us any, by being kind, friendly, warm, compromise everything, cut down the fees if they seemed a little high. You know, do everything that was conciliatory. And I think that adds up to weakness.

Miller: One other thing that I’ve always found interesting, because I think you’re the only Judge that did it, is that as far as I am aware, you have never entertained cases in which your old firm represents a party. Is that correct?

Judge: That’s true. And now it’s statutory.

Miller: Forever?

Judge Uh, huh?

Miller: Oh, really. I didn’t know that.

Judge: The statutes have changed.

Miller: But when you made the decision, it was unusual. Most people recused themselves for what? Three years? Maybe two years?

Judge: Two years. For some reason or other they said two years I recuse myself, and then forever if it was somebody that was a personal client that I was working for, that should be probably forever. And then otherwise two years is an ample amount of time unless there’s some special reason why it should be longer. I have a built-in reason, and that was that Dave Spottiswood was then my niece’s husband and so the relationship is by affinity as well as consanguinity, and so I was prohibited from that. But then when he and Sally separated, then I didn’t have that excuse anymore so I had to make up some other ones. It’s like when you’ve been an original member of the firm, and worked together with these people, they are family, and there isn’t any way that you can feel comfortable. You either are going to overreact against them to prove that you are fair to the other side, which isn’t fair to your friend either, or you do automatically lean that way. And it becomes very difficult.

Do you remember Dolly Gee, who was one of my law clerks. She was so good. She’s so great. And who’d have thought this, but she comes in with her senior partner to handle a case that is going to go to trial. And the senior partner, for all I knew, was going to be handling the case and Dolly was going to be riding shotgun. Well, Dolly never rides shotgun. I mean she is that good. And so it was always intended that she was going to handle the whole case. The partner wanted to come any way for whatever reason, that first time. The problem was that the lawyer, lawyers on the other side were absolutely frightful. And I told them, of course, that Dolly had been my law clerk, and we’d remained friends, and I see her maybe once a year, and still consider her a good friend. And I don’t want anybody to feel uncomfortable about it because I’ve plenty more business and I won’t lose any income, I can find more work to do, so don’t be bashful and don’t think that I will feel uncomfortable because all you have to say is my client would feel a little uncomfortable and so that, of course, would make me feel uncomfortable . . . and I would ask you to recuse yourself. But they didn’t. And so I didn’t think any more about it other than that because there was no legitimate reason except a possible appearance of impropriety or maybe that I would be prejudiced.

Well, I had nightmares. As the months rolled along we had a lot of law and motion and I was never able to rule favorably, not only on any major issue but on any question. Dolly was always right and these hamburgers were always wrong. And I thought, it looks so terrible, . . . my God, they’re all friends and she worked for him. I went through the whole transcript. And I thought I’m not going to do this again because it’s awful. And so Dolly sensed that I was having a tough time and she came in one day when . . . and was just sitting in the audience. And I said I didn’t know you were here in town. Did you want to discuss something. She said, “No, I’ll wait until you’re finished. I just had some time and thought I’d wait.” And so I finished. And she said, “I’m just here to make you feel better. We’re going to settle this case and relief you of a lot of pressure that I’m sure you’ve experienced.” And I said, “Thank you. It’s been awful. It really has been terrible. You’re just praying that they’re going to say something like “I looked outside and the sun was actually shining,” and I could say, “Yes, yes, I agree with you.”

Miller: Have you ever had another law clerk in your court?

Judge: No.

Miller: I appeared before my Judge one time and it was really kind of minor. And we talked afterwards and said we’re not doing that again. It was awful. I mean he, you know he tried to be really tough on me so there would be no question about it and knew that but it was really bad. I walked out of courtroom and I said, “I’m never going in there again, not ever.”

Judge: It’s difficult. Because you do establish, most Judges I imagine do with their law clerks, trust. But also companionship. It’s like your family. . . . It’s like your kids. That was my only experience but I was sure careful about it.

Miller: Let’s start today. If it’s okay with you, Dick, I’ll ask the first question. Why don’t you tell us how your life changed, your personal, everyday, attitudes and life changed when you became a federal Judge, if they did.

Judge: It changed dramatically and drastically. I had not had any judicial experience at all, either the kind, the volunteer kind where you would sit in some of the departments to help them out and that sort of thing, so I didn’t have anything that constituted background in judicial work. And I knew that I was almost 60 years old when I was appointed and that I was therefore expected to be an expert. When you’re that old, you’re older than anyone that ever comes into your courtroom as a lawyer, they assume that you are much better trained and experienced than they are, and they look to you for these things, and most of the things that I was presented with while on the court I had no experience whatsoever with, or even come close to it. And I thought very seriously about packing up and going back to where I came from. It was very difficult. It took a long time.

But there are ridiculous things. I think that at the McDonough firm we were kind of a gregarious practice. We’d rush around and the minute we’d get a new case we’d run into one of the other lawyer’s offices and say, “What do you think about this?” And, “It looks like it’s going to take a great deal of time. Can you help me with it? I think it should take two people because it’s going to be a number of things.” None of that happens here. There is nobody to run around and talk to. And I learned that if I needed help, my colleagues were always very pleased to say to come in and what can they do to help you. But when I, if I really needed help, it would tell me at least an hour to explain what the problem was, and no other Judge had an extra hour to sit and listen to me explain my problem. And if was something that I could explain in 3 or 4 minutes I didn’t need to consult them – I could do it myself. And that was difficult for me. And then, also, it was very lonesome. Nobody calls you on the phone. I saw how the superior court worked and you wander into the Judge’s office and wait for him and ask if the clerk if he’s available, and they’d say “He will be in a few minutes, so why don’t you wait and you can talk to him.” You can’t talk to anybody in federal court. You have to have a conference, and you have to give notice to the other side, and the Judge’s won’t listen to you come in alone, even if it’s nothing improper and it has nothing to do with the merits of the case that’s before him or her. And so there’s nobody to come and visit and you’ve just got your two law clerks and your secretary and the court reporter and the courtroom clerk. That’s all you can have to talk to. And it does get very lonesome. Lonely. And you don’t have this great collegiality of being able to trade thoughts and ideas back and forth. We struggle to have one meeting – one meeting a quarter, really, with the whole court. And we don’t get very much accomplished because it’s at noon, and everybody is in a hurry, and you do the best you can with it. And that’s what was tough for me, and I don’t think I ever have gotten used to it.

Miller: Did it affect your other – the other parts of your life. The isolation, the new struggle.

Judge: Yeah, it did, because I’m a third generation Sacramentan and I grew up with, for a while, with the lawyers that were here, I mean in practice. And I’d see them in court and we’d sit on committees together, and all of a sudden it had a reverse effect. Your friends did not want to ask normal courtesies or favors from you, even if a stranger lawyer would not even hesitate to come in and say, you know, I simply can’t get to court on that third day of trial because I’ve got something terrible that’s happening. Is there any possibility that we could skip that day, or whatever. Your friends would never do that, and they would always assume you would figure they were taking advantage of a personal relationship to get a favor. And that would be kind of sad, because I’d get all these hamburgers that would come in and they’d say, “How about taking a day or two off here, because – ahhhhh,” and it worked in reverse. And that bothered me. It also bothered me that when I saw really good lawyering and well done work that I couldn’t automatically award the decision to the good lawyer who did a good job and saved me lots of time and effort. The only way you can pay him is have him win his case, and a good part of the time I’d have to rule the other way, but you’d have to dig it all out yourself. And that seemed to be a rotten system. That you rewarded the bad lawyer by doing his work for him, and then almost hearing him rush out and say to the client – “I was able to straighten him out. I mean, he was off the track there, but I got him straightened out so that we’re going to get a decision in our favor.” That sort of thing. So there were a lot of unpleasant things that were hard for me to handle, but because I was much older than anyone else I know when he went on the court, I was ready to go on the court. A number of my friends and colleagues did not like it and kept thinking I’m giving up a lot of money and a lot of possibilities, and maybe I made a mistake. I never felt I made a mistake, because I was tired by the time I was 60. I was tired of fighting with unpleasant, rude lawyers who would never automatically accord any courtesy at all. Their belief was that if you just say no and are hard- nosed and make them struggle you will get what you want, because they’ll fold pretty soon. They won’t like this kind of treatment. And so they’ll probably settle on my terms, or whatever crazy theory they have. All of which was a terrible mistake because I’ve never, ever, in all these years found a lawyer that I could intimidate and beat up on. All it does it make him madder at you and then it becomes a personal thing. He’s going to vindicate because you have insulted him by insulting his client. And so it never worked, and the few dirty tricks that – I guess the statute of limitations has run on whatever ones there are that I indulged in – I got paid back in spades by my opponent. I was never able to get away with anything that was worthwhile. Quite the opposite. They were able to get even with me, and there came a time when I needed a courtesy from an opposing attorney and, in effect, he or she would say no. And it made the work a lot harder. So, it took me a long, long time to figure out how I was going to survive in this area that was for me, at first, very, very difficult.

Miller: You know you, you’ve described basically a growing, I guess what we’ve started referring to in the system as incivility between and among lawyers. In your 22 years on the bench has that stayed the same, has it gotten worse, what do you think about the civility issue?

Judge: Civility?

Miller: Yes. Judge: Well, you automatically think what’s happened to the civility that we grew up with. And it’s terrible. I think that’s an oversimplification. First of all there are lots more lawyers. There were always lawyers that you couldn’t get anything out of cooperatively, and you just said “I’m just in for a real nasty battle and it’s too bad but that’s the way it is.” But there were relatively very few. There were 200 lawyers in Sacramento County when I was admitted to practice. Now I think the County Bar Association alone is well over 3,000, and you don’t know anybody now really. And in those days you knew everybody. And within a couple of months of being admitted to the Bar I think I knew every single lawyer that was practicing in our courts. I didn’t know all of the State lawyers but there weren’t all that many around then anyway. And you got to know everybody and you knew the few that you could not trust and were just always a problem. Most would have a secretary when you called, and you said to the Secretary “I just got this complaint, my client is the defendant X, and I can’t get a responsive pleading out. Can you give me – I’ll need 5 days at least and maybe 10.” And the Secretary would almost always say “You’ve got it. Just write us a note for the protection of both of us and say ‘memorializing my telephone conversation with you of such and such a date and you’ve been kind enough on behalf of your employer to extend my time to file a responsive pleading.'” There were a few that would not do that, but you didn’t encounter them all that often and when you did you knew you were going to have that kind of a problem so you prepared for it. But nowadays there are so many lawyers, and they don’t even know each other, let alone know me or vice versa. And so there didn’t seem to be any of that. And some of the lawyers would still have their staff people automatically extend time, or some of those minor things that turned out to be important courtesies because if the answer was no, then you ran all the way over to the courthouse and waited for a department that would see you and sign this thing, and you’d waste maybe 3 or 4 hours looking for a Judge. There’s certainly a lot more of that now, and it’s more of a practice than it is the reverse. But the circumstances are so much different. And people knew each other. The cases were so much simpler. I once tried to figure out how much, if I was a good mathematician which I am not, to first make an allowance for inflation and equalize, and then say here’s the exact same case, virtually identical, and I figure that it would cost me $500 to take this case all the way through to trial court judgment, allowing a few days for trial, and I believed that I’ve found that exactly the same case, after first allowing for the inflation factor to make it even, would cost me 5 times as much money in dollars as it would when I started practicing law. Because there was no discovery. You filed your lawsuit and the defendant filed an answer, almost never a demurrer, it didn’t seem to accomplish anything, and then you each took the deposition of the opposing party. You couldn’t just run around taking depositions anyway, like you can now, but you could take the deposition of the opposing party, and we’d each do that, and we usually did it on the same day. And then you put the file away and waited for the case to be set for trial. And there wasn’t much to do. It was cloak and dagger stuff all the way. And most of it was the fun part where you had hidden things all over the place that was never, ever smoked out because there was never really any discovery. And it wasn’t until the Federal Rules really were adopted and all that sort of thing. And that was quite a it later, as I recall. That was in the late 60’s that it started. And it was all just so different that it’s hard for me to say that it’s less civility. Lawyers don’t use, or try to use, obscene, even swear words in the courtroom. You just never even thought of doing that. And then when I first got started it was a big thing to just slide ’em in and see what the Judge would do. And then if’ you’d get away with a small one, which was a crazy thing to do, then they’d drop a real bomb on you, because they figured they could, and they’d tested you, and the test was such a small one that it wasn’t going to be that big a deal. And the problem was that they would raise them for the first time in closing argument. I don’t know why these funny things happen, but you’d get a very respectable argument from a lawyer, and his voice would rise, and he’d be emotional, and all of a sudden he’d get a “damn” or a “hell” out and you know at first even that was shocking to you in the courtroom, particularly a stodgy federal courtroom. And I remember thinking I’m not going to stop him. It’s such a minor infraction and everyone uses these words and they’re not considered shocking. And to stop him in the middle of a very important closing argument for something like that, and all those thoughts, and so I thought I’ll let it go. And the few times I did let it go something awful came out. And I don’t know why they did it. And why did they do it, because I can’t imagine why it would help them any, and particularly when it’s a jury trial because you’re going to offend some of the jurors just by using bad language. And I never could understand why they did it. Maybe it was just to show that they could do it and get away with it.

Nichols: Judge, one of the things that has intrigued me is the difference in the conduct of attorneys between themselves as opposed to their conduct in a courtroom before a Judge. Where you would have an attorney who you are dealing with on the other side would just do all kinds of horrible things but when he comes into a courtroom he’s sweetness and light. Do you see that kind of a dichotomy from the bench? Or is this something that we see but you don’t simply because of your situation?

Judge: You certainly know it’s coming because they don’t hide it that well. I mean you can see things right off the bat darting back and forth. They cover them – I hate it when they do this – they’ll say “I would like very much to accommodate my opponent. We have a very good relationship, we’re working well together, we’re getting a lot of discovery that we would ordinarily have to demand and we’re getting it.” And they tell you what a wonderful – they volunteer this wonderful relationship which is at least half the time an outright lie. They don’t even speak to each other if they can avoid it. But that’s part of the schtick they use to show the court that they are working very hard in trying to accommodate each other. And I usually feel I can spot it right while – the first time they’re in the courtroom and they’re saying these lovely, lovely things to each other and about each other, I’d rather have a kind that are out and out ugly. I mean, you know what to expect and you just say “Stop it, you’re not going to do that in my courtroom because it just impacts my time and I get mad, and all that.” There are all kinds of things they do. They don’t do it any more, I don’t think. But it’s – it was the treatment of women lawyers whom most men litigators resented. This was invading the man’s domain. And sometimes it would just infuriate them. The stories were legion when I started practicing law about, “My God, he’s hired a woman. I guess they’ll put her in the backroom. They certainly wouldn’t let her talk to clients, for God’s sake, and the last thing they’d want to do is let her go to court. And so, it seems kind of strange, but maybe she’s very good in some areas and has some expertise, but I’ll bet they keep her pretty well hidden.” And all that kinds of stuff. And as they figured you might rap ’em for dong this, they developed ways that were just beyond belief. One of them would be if you had four lawyers on one side representing different parties and one or two lawyers representing the plaintiffs, and one of the lawyers would get up and say “I think we’ve worked out something together, and I invite counsel to correct me if they think I’m wrong, but I know I talked to Mr. So and So and he has agreed, and I talked to Mr. So and So and that worked signed, and then just this morning I talked to Mary and she -” Just flagrantly they would address her for no reason by her first name. And, God, I used to – that I had fun with because I could attack them wildly in the presence of the jury. It wasn’t one of those things where you had to clear the courtroom and then say “Don’t do this again.” You could do it right then, and that had a salutary effect. And then I would say, “Until you’re told otherwise, you’re to think about how the opposing counsel wants to be addressed. And if it’s Ms., that’s the way you address her until you’re told otherwise.” In fact that’s exactly the way you do it – that’s the way you always start out. And if one of them I prefer you call me Miss or Mrs., then you do that. There’s no reason to refuse to address somebody by a different denomination than they want. A lot of male lawyers would search to find a way you wanted to be addressed and then purposely address you some other way. But . . .

Miller: You know a new phenomenon that kind of surprises me – I don’t go to State court much, I see it more there, but I’ve actually had it happen to me a couple of times in federal courtrooms, is where the other lawyer disagrees with what I’m saying and instead of respectfully disagrees with what I’m saying, says “She’s lying to you, Judge.” I mean it just is breathtaking to me. In federal court it’s my experience that you know the Judges. You know, you’re around enough that you know the Judges, and they correct that immediately. “You’re not going to talk that way. She’s here all the time. I’ve not experienced her lying. Do you want to start that again.” In State court it can get really unbelievable. I don’t know if you’ve had that experience, but it – you can’t stop it so it gets worse every time you open your mouth. “There she goes again, she’s lying to you again.” Whoa.

Nichols: I have had that experience often enough so that I am not inclined to attribute it to gender. I’m inclined to attribute it to equal opportunity jerkism.

Miller: Oh, I agree. But it’s hard to know what to do. You know, I finally did in one case just tell the Judge in a state court proceeding, I am not going to continue to argue on behalf of my client under these circumstances because we’re not getting anywhere. It’s focusing on me, and that’s not where the focus ought to be. I’m leaving. And he finally got a grip and said, “Well, I agree. There’s really no need for this kind of personal attack.” But, have you had that experience, of that breaking out in your courtroom?

Judge: I think I have – I think the one real plus of my job is that I – if you’re older than anyone else in your courtroom you’ve got an enormous advantage. I couldn’t believe the advantage that I had and I’ve said a lot of times I would be perfectly happy to trade whatever expertise or ability that I have for more seasoning. It’s just age. And for some reason or other they somehow know that there is nothing new. There are certain things that I swear to you every lawyer that has been late or missed a court hearing almost has a script that circulates around, I swear, and they all have it and they all think it’s brand new and they made it up. And it’s exactly the same. It goes something like this: “I accept fully responsibility for this and I apologize. The fact is that my Secretary . . .” and now, of course, it’s been upgraded to my law clerk or my calendar clerk – usually they don’t have anybody. They have an answering machine that says Mr. So and So is in court, and that may be at midnight. But they always say “And she had a terrible time, but I know that I am responsible. But I want to tell the court that I have never once missed a hearing before in my life, in the 25 years that I have practiced law.” Now it doesn’t matter if they’ve only practiced for 2 years or for 50 years, it’s always 25. Always 25. And they say the same words. And you know you think, “God, there is nothing new.”

Miller: I was going to ask you, and this brings it to my mind, I was going to make a note so I wouldn’t forget it. You used to have, as I recall, now this may be apocryphal, but I think I saw it. You used to have a card file that you kept when someone nailed you in your courtroom, and when they came in and said “I’ve never done anything like this before, I apologize,” you could pull that card out and say “How about on September 5, 1987?”

Judge: And that was purely because I would sputter in rage and I would say “You’ve done this to me a number of times and I’m finished. We’re not going to go this route again, and you’re going to be sanctioned. That’s all there is to it.” And they would say, “When did I ever do this before?” And I could never remember. All I knew was they did it. I don’t know when and I couldn’t give the particulars of what it was that they did. So I started writing down, when I got made, just an alphabetical list of lawyers so that I could pull them out when I had to.

Miller: Well I saw you do it once and it’s effective. And I’ll tell you, I imagine you don’t have to do it anymore. I mean I’ve told everybody in the world. “Don’t screw with him. He writes your name down, Kid. He’ll get you next time.”

Judge: That is true. And I did that. That wasn’t to be cute. That was self defense.

Miller: That’s fascinating. I’ve never seen anyone else do that. Has anyone else done it as far as you know? I think it’s wonderful, myself. I mean it protects lawyers who don’t do bad things to you.

Judge: Yeah.

Miller: It really does. Don’t you think, Dick, it serves a number of purposes.

Nichols: And it also creates a wonderful record when you get taken upstairs to the Ninth Circuit and they’re looking for any way to be nice and gentle and “the trial Judge did not make an appropriate record.”

Miller: Oh, yes he did. So that just came up by happenstance, basically. Do you still have that? Your card file?

Judge: I’m sure I do but I never have any reason to use it.

Miller: That’s what I figured.

Judge: I don’t get that many repeats oddly enough.

Nichols: But the word is out.

Miller: I definitely put it out. Especially with young people. I remember telling one about your concerns with misspellings and bad grammar and I’d read his pleading and he’d misspelled a central word to this thing like 12 times. Every time it was in there it was misspelled. I said, “It’s going to upset Judge Schwartz.” He said, “Oh, he’ll never notice.” I said, “It’s going to upset Judge Schwartz. I think you need to amend your complaint and fix that.” “I don’t want to waste my amendment.” I said, “Believe me, you won’t be wasting it. You’re going to upset Judge Schwartz. Fix that.” Well, he didn’t do it. And I had the great joy of sitting in the courtroom and watching you just dismember the poor kid. But he’ll never do that again. He will never, ever do that again. He will never just fluff it off. He’ll be more careful. And I think that’s important, quite frankly.

Nichols: Well, I do too. And my view is that part of being a Judge is forcing the people who appear in front of you to do it right. And I see, frankly, that’s why I like practicing in federal court. Because there are rules, the Judges enforce the rules, and you know where you stand. You go over to State court and you have no idea what’s going to happen. And it’s extremely frustrating.

Judge: Oh, it is. And certainly if you do follow the rules – The reason I get mad at very sloppy pleadings is that they are indicative of something much worse. And that is you’re not reading your own pleadings. You are too busy. A busy, busy lawyer who thinks, “Well, it doesn’t matter because the Judge will find these things and correct them for me. That’s what he’s paid for. But I’m not getting any money, really, out of this case, and I haven’t got time to read.” And you know I usually will say it’s an insult. The reason I get angry is you expect me to listen to every single thing you say where I think there is any credence and be absolutely fair and yet you don’t give me the same return courtesy of giving me your best product in your pleading. Because those pleadings help me enormously figure out what your case is. And that’s why I get angry. And if you’re not going to practice carefully you’re going to be in deep trouble the entire time you’re here. You might as well get out of my court because it’ll be miserable for you.

Miller: Now I seem to remember that it was you who called together for the first time a small group of lawyers for a brown bag lunch to try to reactivate the Federal Bar Association and create some dialogue between the bench and the bar. Do you remember that?

Judge: No.

Miller: You don’t?

Judge: I remember going to meetings that involved the Federal Bar Association and being invited there, but I don’t remember that I was a moving force in anything.

Miller: Well, I remember it because I came to that very first meeting in the Judge’s lunchroom at the old Federal Courthouse.

Judge: Oh, my.

Miller: I don’t remember if you did, Dick. I remember Norm Hile. I remember it was the first time I ever met Ken Mennemeier who came with him, and there were a couple of other lawyers. And we didn’t have a Federal Bar Association at that time. It was all federal agency lawyers, but it wasn’t the practicing court bar. And you, even though you don’t remember it, were the driving force in transforming it and creating what we now have. And you were also here when we started the Eastern District Meetings. Do you find those things valuable from the bench perspective? These sorts of forced involvements with the Bar.

Judge: Yeah. Except it’s always the good lawyers that don’t need the prodding and those kinds of things that come and we’ve had people like [text omitted] who treated the lawyers generically as the ones that he saw who were always messing up in his court and who didn’t know how to get to the courthouse and didn’t know anything. And he just for some terrible reason assumed that he should gear his comments to those people. Whereas we always got not only the cream of the crop but we got people who did things for the Court. There is a terrible thing about federalism, and that is that you somehow think that lawyers would be delighted to be put on these committees and ask if they would like to draft all kinds of terrible things and expect that –

Miller: That’s what we’re here for.

Judge: Yep. And those are the ones then that the [text omitted] would chew out when he was speaking in one of these things when lawyers and Judges were together, like they were all bad. Like they were nothing but screw- ups that were causing all of these problems and we almost never got those people. They never came to our meetings. And I never could understand why he didn’t understand that.

Miller: He didn’t like us very much. He was always very nice to you when you weren’t in the courtroom, but in the courtroom he didn’t like any of us very much. I just thought he was an unhappy Judge.

Nichols: It was not just in the courtroom. If you dealt with him at a social level he was very pleasant. But I remember when we would, when we were drafting the local rules, we would meet in one of the Judge’s Chambers up here, in an informal session, and you know we were – Ann Schwing and I were at many of those and we were trying to do a service for the Court, and Judge Price had the view that Sacramento was treating Fresno as a step-child and ignoring its concerns. And so he was angry with the Sacramento Judges for that reason and Ann and I were from Sacramento, and so by extension he was angry with us. And he would just excoriate us.

Judge: He was a year behind me in law school. In Bruce Allen’s class, and Henry Teichert’s class. And we had a big class of lawyers. And he was certainly well liked in those days. And then I didn’t have any contact with him until he was appointed about the same time as I was. And we went through our training period back in Washington at the same time. And Barbara, my wife, is much more perceptive and quicker than I am. And I was saying one day “I cannot understand Dean Price because when we are in a social situation and are having dinner and this sort of thing, he is courtly and nice. But when he gets up on the bench he just transforms into somebody else. He’s just kind of a wild man. And that’s foreign to me because usually you see fierce people who are fierce whether they in court or out of court. They may be nicer generally, but they are the same person, and he isn’t.” And she said, “You’re busy thinking about what male members of the bench do, and that’s think about their own problems and what they do, and the wives just kind of sit there and look around and smile and nod, which,” she said, “I’m getting sick of. And so,” she said, “I have to do something to occupy my mind and I watch relationships. And he is – it comes out in the social relationship the way he treats his wife. He’s just -”

Miller: That’s true. I remember seeing that.

Judge: “And he really is not thoughtful of anything about her. He may say words that are nice, but they really aren’t, and he really doesn’t give a hoot about her and she is a slave. And she’s willing to be a slave, so why should I worry about it. It takes two to play that game. But,” she said, “he’s just terrible to her. And he masks it, but I know what he’s like, I can tell by just watching him.” And I’d never thought of that and then I started watching him, and by God, he does. He gave her short shrift and dismissed anything that he didn’t think was worthy of –

Miller: It is interesting, isn’t it. And somehow nobody saw this before they put him on the bench. And you wonder how you miss it when you –

Schwartz: Judge Halbert is the first one who called my attention to it. Because he and I, for a long time, were the only two that ate lunch in the old Judge’s Room downstairs, and then MacBride joined us for a while, but the thought was if we had a date or someplace to go for lunch with somebody we go, but most of the time we don’t, so we just drop down to the lunchroom. And one day I was there with Halbert, most of the time just the two of us, and he said, “I’m just – I am really upset about what I’ve heard. And do you, have you heard these kinds of things?” And, he said “I was so overjoyed when Dean Price was named to the Court, and I had always thought so highly of him and he did a lot of work in my court, which was the Superior Court down there, down in the Valley,” and he said, “I’ve been hearing things all the time now that are very, very uncomplimentary, and by people that I have reason to believe are thoughtful and sensible and accurate. Have you heard those things?” And I said, “Oh, yes, I sure have.” And he said, “Did it surprise you?” And I said, “Enormously. I was running around, my mouth is always too big anyway, but I was running around saying that I believed that Dean Price would be the star of our Eastern District Court. He was bright. He had a good reputation as a lawyer and he’s going to be something else. And he said, I felt the same way. I couldn’t have been happier. But I’ve been hearing perfectly terrible things and I don’t know what, I can’t make head or tails out of it,” and so forth. But that’s exactly what happened. In fact I got so upset . . .

And I was brand new on the Court, and the lawyer that had been insulted by him just burst into chambers. And people just didn’t do that in those days. And he was with the U.S. Attorney’s Office, and he was a wonderful lawyer. And he just walked around and around chambers, he was just beside himself. He said, “I’ve certainly had Judges that were unhappy with arguments that I made, that disagree with them. I’ve done all those kinds of things, but I’ve never done anything in a courtroom that would call for being personally castigated for my behavior, or anything. He was just terrible, and I don’t know what to do.” And he was out of control, literally. And so then I went and talked to Karlton, because he was senior to me by a few months. There were only the three of us then, Karlton and I and Wilkins. And so he said, “Of course, I’m afraid that Wilkins will say “You know, you’ve got a lawyer, you weren’t there, and the lawyer is unhappy with the decision he got that he thinks was wrong, and lawyers do that – they get angry and upset.’ And he said, “I doubt that Wilkins will even pay any attention to you, but if it’s of any help, I’ve been through one of these things too.” Because I thought I was going to get a terrible rebuff from Karlton, but I had to have somebody on my side. And Karlton said, “I’ve had the same kind of experience where lawyers have just, that I knew were outstanding, just came in and couldn’t tolerate anything like this.” And so, he said “Let’s both go in and see Judge Wilkins together and see if we can talk him into believing this and not just dismissing it out of hand.” And we did, and Wilkins said, “Interesting you say that, I’ve gotten the same reports from a number of – a couple of lawyers whose integrity is beyond anything. I mean you know it’s right or they would never be saying things like this.” And so, he said, “That’s enough. I will call Price in and I will talk to him.” And so he did, and he told us afterwards, “I feel very good about this. I’m just telling you this because you probably would want to know. You’d want to know what the Bar thinks about you. But you’re your own boss, and I can’t tell you what to do or what not to do.” And, he said, “Price said ‘ I want to hear. It’s very important to me.’ And so,” he said, “I told him the remarks that had been repeated by reliable people, and many of them. And,” he said, “Price said ‘I’m shocked. I really am shocked. And I’m very appreciative for what you’ve told me and I want to tell you that I’m going to take care of these things and take care of them promptly.'” Never changed a thing. Not one thing was changed after all of this wonderful talk.

Miller: I know he sat in the chamber where I worked as a clerk when he first came on the Court. And, uh, you know Judge Wilkins had told us to give him as much help as we could in understanding what he role was, and he was just wonderful. And then I had cases with him where he would be rude. But I did a settlement with him one time and he blew my settlement. I mean he really – it was horrible. I mean he blew my client – I made the settlement. But he wanted the bottom line, and I said to him, “You know, I’m not real happy to tell you that right at the beginning. Why don’t we just start here and move through it.” And he said, “Well, I don’t have enough time for that. I just need to know after I talk to them whether I’m getting close,” and blah, blah, blah. So I said, okay, it’s confidential. So I gave him the number. And the other guy comes in, and we’re all in the same room, we’ve only been there 15 minutes. He asks him what his position in. The guys tells him. And he said, “Well, Mrs. Miller’s got this much money from the Board and that’s all she’s going to get. And I think that’s a reasonable settlement and I think you ought to take it.” So I have to call my Board after the thing starts and I have to tell them that the thing went for top dollar. I mean there’s no way to back off of it. And I talked to Judge Wilkins about it, and I said “Man, I don’t know what to do about it but that was just horrible.” And he said, “You need to just make an appointment with him.” And he wouldn’t make an appointment with me, so Judge Wilkins made the appointment and he told me to go down there and sit there and talk to him about and I did, and he apologized and said he hadn’t realized he’d done it but I heard a couple of three weeks later he did the same thing to someone else, so . . . I mean it’s a horrible experience. I lost that client. It was a really important client to me. They were so angry. He was interesting.

There’s another difference between Judges and I don’t know where you fall on it. And that is some of them are extremely concerned about what will happen to their decisions on appeal. They comment on it. I’ve not heard you do this, but probably – I don’t know if you do this or not. Is there a high concern about reversal?

Judge: I don’t know why there is or why there should be, unless you’re one of those who feels he has to have virtually a perfect record because he wants to go up higher. But it’s hard for me to believe that because you are immune from being immune, and you’re not going to have to stand reelection and go through all of those things where – I am concerned because I don’t want to try the case over again. Just pure self- preservation. I also don’t like some of the Judges, I can’t believe they would do this, I don’t do it in my written decisions I don’t say nasty things about the lawyers, because they don’t have any defense. They can’t fight back. And unless they did something that was really outrageous and you knew was in bad faith, I would never embarrass them because I don’t know that I’m right. I don’t have any great feeling that because I make a decision which sometimes I sit on for weeks and change my mind back and forth and back and forth and go crazy, but then I think I don’t have this luxury to sit there and say this case is too tough to decide so I’m not going to decide it. It’s just too tough. So I have to decide it, and I do the best I can. That doesn’t mean that the losing lawyer is wrong. And I try never to say that. First of all, the Court of Appeals may reverse me and I have to eat my words. But secondly, you don’t know whose right and whose wrong and you’ve been through cases where the trial Judge has made a decision and thought it was a fairly easy one, the Court of Appeals unanimously reversed him, and the Supreme Court unanimously reversed the Court of Appeals. Took it right back. So it’s the last person that hears it. And so you can’t say that the lawyer is wrong, because I’ve been told that I’m wrong. And that’s the thing that is so troublesome to me is when they beat up on the trial Judge. And the one that is to me the worst offender in the whole world, and I don’t care that he happens to be extremely liberal, he’s rude and ugly and he’s smart as hell but nobody can be that smart. Your head would burst if you were that smart, as smart as he thinks he is. And the worst case I ever had it took me weeks to decide. It was a beautifully done case. And the lawyers on both sides were very, very skillful. But the plaintiff’s lawyer set the case up because he knew he could never prove if the other side had any inkling that that’s what he was doing. And it was a religious discrimination case and it was awfully tough. And I couldn’t decide it. And for me, I felt that it was the best opinion I’d ever written. And it certainly took me longer to write than anything I’d every written. And I knew it was an enormously close call, and I wasn’t going to be the least bit unhappy if the Court of Appeals reversed it. But I wanted it – I knew it was going to be published and I knew there was going to be a lot of talk about it and as a matter of pride I wanted – I didn’t want the Court of Appeals to say “We read the district court’s decision and, frankly, we have no idea what he’s talking about. And we can’t tell, and we can’t get a handle on it.” That is a matter of pride. I want the Court of Appeals to say “Yeah, we can see exactly where he’s going and how he got there, and it makes sense, but we disagree with the premise, and we think that the better view” – or whatever. That is fine. All I want to know is what I have to do and do it, but I don’t want to be insulted in the process. And you can be insulted if you tell the successful lawyer, “I’m a very busy Judge, draft a decision for me please.” And then they just sign it and think “What do I care. It’s not my problem, it’s theirs.” And so to avoid that kind of thing, I wanted the best decision I could make and, of course — I think there is a municipal ordinance that requires that every decision I write is going to be assigned to Judge Reinhart for appeal. He gets every one of my cases.

Nichols: That’s traditional. Judge Halbert used to have every one of his cases assigned either to Judge Hambley or Judge Ely.

Judge: [Text omitted.]

Nichols: Judge, one of the few remedies for that which you obviously attempted in that case, unsuccessfully, is to publish your own decision so that when, as and if you get reversed, at least the reader can see what you were thinking about. But it is observable to me that this District has a much, much lower publication level than any of the other Districts in California, and I’m wondering is that a conscious decision that the Judges as a group have made? Or what is the reason for it?

Judge: I think every Judge has a different take on that. I was so ignorant when I came over here that I thought that if I wrote an opinion and it was published in Federal Supp. that that was a determination – first of all I thought everything was published in Federal Supp. and that they sort of emphasized some sort of philosophy over it or whatever, because they’re phony too. They phone you – I didn’t know any of this stuff – they phoned me and said, “There has been a request made to us to publish this decision.” And I said, “I wonder why? It’s absolutely fact oriented from the day it was born until the end. There are no precedents that I believe will have any — that would be helpful to anybody. Do you mind telling me why you think it’s worthy of publication?” And he said, “Oh, as a courtesy to the Judge who has authored the opinion, we always call and ask.” And I said, “What if I said no, it’s a waste of paper and money and everything else because it has no value. What would you do?” And he said, “Well, then that would go to the top Board of Editors, blah, blah, blah.” You know, double talk. And I said, “Well, you have the right to publish anything you want to publish and it’s there. And even if you don’t publish it some other service might pick it up on its own that doesn’t even ask the Judge for his thoughts. So do what you want to do. But if you’d ask me I can’t imagine any value that it would possibly have to anybody. And I forget what – But then I learned kind of how this game is played, and so they – they will tell you that – I forget what words they use because it doesn’t really mean anything. It means we would like to publish it because we will sell more books, so we would love to publish it but we’re at last consulting you as a courtesy. They don’t say, “We won’t publish it if you say ‘No.'” And I went down and I talked to Larry Karlton then, and I said, “What do you do about publishing?” And he said, “I publish for two reasons only. One if there is no – if there are a number of cases on point and they’re all here in the Ninth Circuit and some of them in our court, and they all decide the same way on the same issue, on the same important issues, and I don’t agree with that, if I’m going to come up with a different result, I think I owe a duty to my colleagues to let them know that it isn’t all in one direction, there’s at least one jackass that has published an opinion in this Court that disagrees with that. Because otherwise it’s too easy for them to think, “All of the literature I can find is all the same way. And so I think that if you are different from a great majority of decisions, and there’s nothing authoritative from the Ninth or from the Supreme Court, I think you owe a duty because we get a lot of help from District Judge’s opinions. They’re at least trying to be impartial. And you can’t read lawyer’s briefs to help you analyze their case, and I get a lot of help and I think I owe the bank some money. The other reason I do it is if I feel that there is nothing in the area that is of any value, then I think I owe a duty to contribute to the bank also and let people see what at least one District Judge thought about it and how he got there and then he can make up his own mind. Because otherwise, I’m not that interested in seeing my name in print which I know some Judges would like to do and then at the end of the year you get a bound volume of all your own opinions that you published that year.”

Miller: Having worked for Judge Wilkins I never saw one of those.

Judge: So I decided I’d try to follow that. And I got my first one, which was an ERISA case, and the early ERISA cases were very tough, and it was hard to understand them, and the whole bit was very, very difficult. And the whole idea was whether those ideas were preempted or not by ERISA, or whether some of those issues could be handled separately, and that sort of thing. And I killed myself, and I ended up by finding that there were three issues that survived, and the others were preempted and ERISA took care of them and that’s all you could do. And it was the only thing there on the subject, and I thought, I’m doing my duty. And the case was, of course, appealed, and it settled on appeal, so there was never any Ninth Circuit opinion that dealt with it. But then, not more than three or four months later a twin case came up from another court in the Ninth Circuit. Just – you couldn’t distinguish – you couldn’t get a magnifying glass powerful enough to distinguish the two cases. And in that one – the Ninth Circuit wrote a lengthy opinion and went the other way and found that all of those were preempted. And so, that was that. But my opinion still sits there in the damn books, with a Ninth Circuit opinion that will pick up and . . .

Nichols: But the way that the law has been evolving on that subject over the last year or two, by the Supreme Court, you may be right and the Ninth Circuit wrong.

Judge: Oh, sure. If I wait long enough. But, years after that, years after, lawyers who had an opposite position would find my decision – and I love the way they do it. They also find the same script. They say, “In a very interesting and, I think, very informative and worthwhile case that was published so and so and so, and I hear the name of this case – my case of course – like I hadn’t noticed that it was my opinion. And I would say, “Stop. You and I are the only two people in the United States that believe that this is good law. And, so, it isn’t good law any more, although I agree with you that when it was written I thought it was good law, and still do, but it isn’t. And there’s no point in citing that case to me. I have vanity, but not that much. I am not going to use that case, I’m going to tell you.

Nichols: Do they still do it?

Judge: Not any more. Within the last couple of years they’ve stopped. They’ve finally gotten tired and they’ve no longer been citing my case back to me. I thought why did I put myself in this awful position where I have to be confronted with this case over and over again. But it is silly that it comes out that way and it stays there in the reports. And anyway, lawyers are not – many of them are not – they just read the headnotes anyhow, real fast, and they think “Oh, I’ve got it,” and they cite the case for a very authoritative decision.

Miller: Well, I’d like to ask, I guess, the concluding question. I think we’re there? You agree? If you were going to sit down today with a young lawyer, or a middle aged lawyer who was thinking . . .

Judge: They’re young, they’re all young.

Miller: Who was thinking about going on the bench in the federal court system in the year 2001, and they had an opening, . . . what would you tell them he or she needs to think about before they make that decision?

Judge: Most of the answer has to be, in a sense negative, as those things that I wouldn’t recommend, figuring that if I get rid of all those the rest may be fine. But it’s hard for me, because most people that do ask are much younger, and mine was an easy decision because I was really tired at age 60 of getting pushed around and getting dumb clucked by rude, unpleasant lawyers and it was the same thing getting worse and worse as we went along and as you get more and more impatient. So I have never regretted, not for one minute, except for those first few days when I was panicked, I’ve never once thought to myself, “I kind of wish I hadn’t done this. I wish I’d waited longer. Or whatever. So I have to try to figure how I would feel if I were in their position, because most of my contemporaries had either retired or had announced that they were going to retire if they, after they hit 60. And for me it was a wonderful thing because it was kind of a rebirth. It was quite a different thing than just moving from one legal job to another. The focus was different, and the great thing about it is that almost all of the time that you spend in this job is what theoretically you were trained to do. And all of the years that I practiced law it seemed to me that I was most of the time doing – worrying about personnel, worrying about money, worrying about what the firm was going to do, and whether we were going to move, and whether we should add people – all things that I didn’t even pretend to be trained in. And that was the most wonderful benefit of everything. It was at least, at least, if I was a really astute lawyer, I would be doing everything that I’d been trained to do. And so that part was neat. The other thing was I didn’t have to worry about personnel problems, and people not getting along, and what you do about that, and those kinds of things. The big bonuses, too, I think, are that you don’t have real deadlines. The luxury is to say “Sorry, folks, but I wasn’t able to do that.” You don’t say that. You say, “My calendar has been so crowded that I could not reach this case at this time, but I’m going to give you another date.” And lawyers can’t say that. And that’s a huge bonus. The other thing that is a great bonus is that the law clerks and your secretary and the courtroom clerk only look to one person, and I can remember the days in law practice when the young lawyer would be struggling, a new associate, and have cases lined out for him or her, and a senior partner would come rushing into the office early one morning, grab the law clerk, and say, “Whatever you’re doing, put it aside. I’ve got a real problem, and we’ve got to take care of it, and we’ve got to get it done today.” And that’s the great bonus for the young lawyer. And when they are law clerks, as you know, if you’ve got a decent, thoughtful Judge who’s been around for a long time and has practiced law and knows the vicissitudes of law practice, it’s a great bonus if they can come in to your office and say, “You know, I was here until 2:00 this morning, and I’m not really satisfied with what I’ve been able to accomplish. I’m sure it’s out there, and I hate to say this, but can you postpone the hearing?” That’s so much fun because it doesn’t make any real difference whether you postpone a law and motion hearing, it’s still going to get to trial at the same time. It’s not very nice if you do it the last day – you postpone it and disrupt the lawyer’s calendar. But we always know early on and can tell them cancel your reservation here, or whatever, but we’re not going to be able to hear this case. There aren’t many young lawyers that have kind of a luxury either. And so those are nice things you can do for other people and still not prejudice the party’s case or cases. So all of those kinds of things I am counting my blessings. When we first came on board Judge Karlton said to me, in his very gentle, non-profane language, said “You know, this job, in federal court, with the help that you get – the staff – and with the individual case method where you get it the day it was born and you stay with it forever – this job is as good [text omitted.]”

Oddly enough he was talking seriously, to John Sapunor, and they talked about resigning from the Superior Court together and opening an office to practice together, which was interesting since Sapunor is as conservative politically as Karlton is in the other direction. And Sapunor told me once, because we were very close friends, he said “I’m just stunned, because I thought, oh, my God, we’re going to have a wild eyed liberal on here who’s going to turn all the criminals loose and, you know, do all these things,” and he said, “we never had a disagreement on an issue involving the law because if you really are trying to find what the law is and do the best you can with the result, you should come out the same.” And, he said, “Karlton and I agree me more and of all the Judges I feel more akin to him and his thinking. And that really surprises me very much.” And that is the way it is. If you do your job the best way you can you find there’s a pride in finding what you think the law really is. So the short answer, if there is one, to your question is, I think it is a great job and I never once wished that I hadn’t taken it. I don’t know what I would do if I were 40 years old and I had a theory that every really fine lawyer that I knew that wanted to get on the bench, most of them said, “I’m not ready yet. There are other things that I need to do and that I want to do before someday I sure would like to be on it.” And I thought what a shame it was that there were a number of those people who I thought were really outstanding lawyers that passed up their one chance. And I did the same thing, almost, except that I had a smarter, wiser wife, and I remember staying up all night when I had my one other chance to go on the court when I was like 43 or 44 years old. And she said, “I think what you’ve told me, although we’ve been here for 7 or 8 hours arguing, what you’ve told me is that you don’t really want the job today, but you’re afraid that if you don’t take it you may never have another chance. And I wish that I was smart enough to tell you that you will have another chance, someday, and if you don’t it may be that you shouldn’t be on the court. But I don’t think it’s a legitimate reason, because you’ve already ticked off a number of things that you want to do and that feel it’s important to do, that you ought to grab this one because it’s here.” And so that’s when I said no to Pat Brown on that one, and I didn’t think there was going to be ever another chance. And I certainly at age 60 did not think that I was going to get another opportunity, but it just sort of dropped. So I think, I think it is a mistake to grab it when you don’t really – when that wouldn’t be your choice right then. Because there were a lot of things I would have missed out doing that I think were very important during those last almost 20 years after that. I wouldn’t have been on the City Board of Education, let alone the State Board of Education, which I thought both were enormously worthwhile. There were a lot of cases that I tried and handled that I never would have done. And so my experience – you always have to personalize it, but you can’t pick the time that you want to go on the court. People like Gordon Fleury – I’m trying to remember the number of people that I thought made good Judges and made good appointments, but they got tired of it and they got frustrated and they wanted to go back to a different kind of life where they didn’t have to be as careful about this and about that. I didn’t ever have those kinds of things to worry about because I’d really lived almost a full life in the practice, and I think it was probably time for me to make a move. But I still think it’s a great job, and the best legal job that I know of, and I would be an enthusiastic supporter for anybody that asks.

There are so many platitudes that have to do with this that bother me. Like, I’m not so sure about Judge So-and-so who’s been named as a Judge, I don’t think he has the temperament — the judicial temperament. Which translated means nice, deliberative, kind, thoughtful, popular because of the way he behaves. To me most of that means “weak.” If you don’t generate anything more than that he’s a really nice guy and he’s honest, and that sort of thing, I think most of that translates out to weakness. And some of the best Judges I’ve known were fierce. Fiercely competitive. And they’d say he doesn’t have temperament. He has the temperament for the job he’s got now which is to fight. That doesn’t mean that if he’s appointed to the court, it doesn’t mean he’s too dumb to focus on what his real job is now as opposed to the one that he’s leaving. And there have been some great Judges that I would have thought, he doesn’t have the temperament. I just think that is such a weak analysis because, as I say, most of the lawyers that fit the category of fine temperament usually mean weakness or kinds of wimps – wimpish. And I think it means that whatever you do if the job that you’re doing at that time is a great job, there’s no reason to believe that you won’t do a great job on the bench, if you did a great job as a lawyer, even though the focus may be quite different.

But Karlton, I think he’s a really great Judge and he was a wild man in practice. But he knew the difference, real fast.

Miller: So you’ve enjoyed it.

Judge: I sure have, and I would not have worked this long either and enjoyed it. That’s the only real trouble is that nobody’s going to come in and say, “Look, we’ve got to talk. You are losing it. Let’s face it. You ought to start thinking about moving out, because it’s time. I don’t think anybody will ever tell us that, mainly because they think they owe you something because they’re junior to you and they owe you something and they’re not going to want to hurt your feelings, number one. And number two, maybe they’re thinking that they’re getting ready to maybe hang ’em out and they don’t want to be pushed out, so if they push you out maybe somebody will push them out too.

Miller: Would you want to be told?

Judge: Oh, sure.

Miller: You would?

Judge: Oh. The older you get and all the problems, you know, memory – you can’t remember anybody’s name and all of those things. You worry, worry, worry all the time. Because that you know that nobody is going to tell you that. And I remember having to tell [text omitted] wife. Because I knew the [text omitted] better than any of the other Judges, I got the job of calling her and telling her. And I came home that night after a meeting and Barbara was in bed reading, or something like that, and I said “I’m going to have to call [text omitted] and tell her, you know, that we don’t want him to be embarrassed and we don’t want you to be embarrassed.” And she said, “You mean you’ve been arguing whether you should or shouldn’t tell her.” I said, “Yeah.” And she said, “Well, that’s a wonderful, macho kind of thing to do.” She said, “I want everybody in your courthouse to be told that the first time they notice anything different, even if they think it’s no worse that what you’ve always done, anytime they notice anything different they tell me first and give me a shot at finding out. But you can’t hide these things, and it’s certainly no kindness to save somebody.”

Miller: That’s so amazing. Maybe it’s a male thing. You know, I think women do that kind of thing with a great deal of regularity. I mean take someone aside and say “You need to know.” It isn’t doing them a favor is it?

Judge: It sure isn’t.

Miller: I remember when Judge Wilkins started to lose the ability to hear. You know, I wasn’t working for him any more. And finally somebody called me and said, “Would you go tell him?” And I said, “You go tell him. You’re right down the hall.”

Judge: What – you’ve got a broken leg?

Miller: “Oh, I don’t want to tell him.” So, I said, “Jeez.” Then I went and talked to Sue and then I sat and talked to him a while and realized he wasn’t, it was bad, big time. But it’s amazing that someone would leave him in that position. It’s almost cruel. Everybody’s talking about him and he doesn’t know.

Judge: I went in during a recess, lawyers were called in when I was trying a case in front of Peter J. Shields when he was 99. And he was sort of almost transparent. Nice little man. And he said, “I want to ask you something very frankly.” He said — and these are the lawyers fighting like crazy on the case right in front of him at the time –

Miller: So you didn’t get it on tape at the finish when the Judge asked the lawyers . . .

Judge: Well, we just all at the same instant, absolutely not. We also didn’t go on to say we both are being very clever about trying to jockey things around so that when there’s a weak witness that we have to call, because we have no choice, we will call that witness in the afternoon because old Peter J, you know, would start to go down. I never could prove it, but he had a clerk who had been with him for years, and you could see the clerk look around all the time to see how he was doing. And then, after a while, Peter J. nodding and [coughing sound] – apparently there was some kind of a shocking thing, or a button, that he used to jar him awake.

Miller: There was a courtroom in Los Angeles that was famous for the clerk reaching back and pounding on the bench, as if the rest of us couldn’t hear it.

Judge: Oh, really.

Miller: Yeah, just reaching back and big thumps and thuds to try and get the Judge’s attention. It was very funny. And we all sat there like nothing was happening. Clearly he was out like a light.

Judge: Golly, that would be awful. When I, I have a bad time at certain hours in the afternoon when it’s just deadly.; And I’ve tried everything; I’ve tried eating no lunch at all. I’ve tried eating just juice. I’ve tried eating a big lunch. Everything. It’s the same – you’ve got a circadian cycle and there are certain times of the day when you are going to be sleepy. And when I was at the law firm, they used to schedule all of my appointments with clients for the afternoon because I wouldn’t fall asleep in the afternoon while interchanging. And then anything that had to do with reading, or reading briefs or anything, that was in the morning because, boy, in the afternoon you’re gone. And here what I do, particularly if it’s putting in tedious exhibits, long descriptions of them and then just all this stuff, particularly in long criminal cases where they have to put in all these things. And I would go through these things as if I were having low back trouble, and I would get up and stand behind the chair as if to rest my back, which translated meant the Judge is falling asleep.

Nichols: Judge, let me go back on something that I did miss asking. You mentioned several times during these interviews about the assistance that you get from good briefing and good lawyering.

Judge: Oh, boy.

Nichols: And yet there is abroad generally a greater and greater movement for page limits and cutting down on briefing. Those two concepts seem countervailing to me and I’d like you to comment on that generally, and on your views specifically.

Judge: Well, first of all I’m the only one that I’m aware of that has page limits. And I did it once in a fit of pique. I had my law and motion on Friday, and the reason I did that was I figured that I could stay up all night Thursday, if I had to, to get prepared for law and motion if I’m in trial and otherwise occupied. And one day I had my law and motion calendar and I counted the pages of briefs for that day and it was 600, and I thought I’m one of the slowest readers and how could I ever get through 600 pages of briefs covering 4 or 5 cases. And so I put in my page limits. Which was 20, 20, 10. And then the only exception was if you were going to exceed that you have to get permission from my senior law clerk, because I don’t want another 50 page brief telling me why you want to file a longer brief. And you do it by phone and you call the senior law clerk and she or he will tell you , “Yes, but no more than X.” That was also one of the worst decisions I ever made. I’ve got to this day a lot of briefs that could have been very well and completely done in 5 pages. There isn’t any more than that they can justify. Strange that the opening brief is always exactly 20 pages long. It’s never 19 – it’s always 20. And the answer is that the lawyer feels that if he [the Judge] picks a 20 page limit that means that there’s probably 20 pages that he thinks is worthwhile material. And so they just make it 20. The responding lawyer looks at the 20 page brief and says if I get anything less than this the Judge will think that it is not a serious, worthwhile, opposition. So his or her brief is exactly 20 pages long. I do spot that some of them have smaller fonts to get more on the page. But they always do exactly 20 pages, and dang, if you could stop ready when you can say “well, they’ve covered this, now he’s starting over again, so phooey,” and you throw it away. But you can’t do that. You’ve got to read the whole damn thing because they spread it out over the 20 pages and I think I’ve been dumb clucked far more times by briefs that could have been much shorter except for the fact that I’m the one that put 20 pages on it. And, I don’t know whqat they do exactly, or how they do it, but I do know that they worry a lot about the pages. Because they don’t know exactly what is important to the Judge, or it might not look like it is significant, and all that. I just think it’s a waste of effort with a good idea in mind that may have backfired. I haven’t stopped it yet, because I’m sure as soon as I stop it I’ll get one that is 200 pages long immediately. They’ll just write and write and write and write and write. But, it is . . .

Nichols: Well, there is an intimidation factor at work. I know that I personally, on one appeal to the Ninth Circuit, just totally left out what I thought was a legitimate appealable issue because I couldn’t cover the other issues to my satisfaction in the page limit that was available to me. And my view is that that’s not a service to anybody.

Judge: You’re right. My hope was and probably still is that if you feel that your brief is – there are so many issues and there is so much that needs to be covered that you really need more space, phone. My senior –

Nichols: But that’s very hard to do. There is a real strong sense that when a Judge or a Court has a page limit, they mean it, and they’re going to be really annoyed if you want to go past it. I mean even to the point of some of the Ninth Circuit Rules that govern fonts and require a word count. And, you know, that’s a very strong statement of view that I think most attorneys would be a little hesitant to challenge.

Judge: Yeah, and I think that, I think you’re right, and I think that my efforts are not really very good. I mean I think they’ve missed the mark. It’s – if a law clerk profits at all, even if she’s got a lousy Judge, just learning what’s going on in the back office, and how much time they can save if they figure that you can count on the Judge to this or that and these are important things. You don’t know, and God knows I didn’t know, what they wanted and what was the more impressive. It’s very hard. And so I think I’m going to be stopping this.

Miller: Well, before you do that, I’ll disagree with Dick to a certain degree. How unusual. I’ve often apologized in a brief for it’s length and said if I’d had more time I would have written shorter. Because I think it’s harder to write a short brief.

Judge: And I usually say that. I usually say that it’s been my experience that short brief is harder – a good short brief is harder to write than a good long brief.

Miller: Yeah. It’s very difficult. I just redid a brief with a guy that I work with that was maybe 17 or 18 pages for a State court law and motion and I said, “My God, this guy is not going to read this.” So, you know, developed a device of giving him a time line and then referring back to the time line and got it done in 8 pages instead of trying to incorporate it into prose. And so I sort of disagree. I think page limits are not a bad – we shouldn’t have to do it because there are things than run longer. But I wouldn’t hesitate to call. So, I think that as a lawyer it’s a horrifying thing to get a brief from someone that is 50 or 60 pages long and it’s indecipherable because it’s just filled with wrongs. I mean if you don’t have to go back and look at it for page limits, if nothing else, you tend to produce garbage. I can’t even read it, and I’m just a lowly lawyer on the other side. I don’t even know what they’re talking about half the time. And so I, I disagree.

Nichols: Well, there are some Judges that are so wedded to their time – to their page limits, that they wouldn’t give you relief from their page limits in the Microsoft case.

Judge: Huh, yeah.

Miller: Well, look at the Supreme Court limits, though. Although I will agree with you that at that point you have sufficiently limited issues that you ought to be able to do it more quickly. You know, Judge Wilkins used to pick up your bench brief and he’d just heft it. And if it was more than the normal three pages, he’d say “This feels like it was written by a lawyer who didn’t understand the case.”

Miller: Do you want to take a break?

Judge: Yeah. Where are you going . . .

Miller: Should we end. We can end. I think we’ve done plenty. Let us thank you then, firmly, for the privilege of doing this with you. It’s been a really marvelous experience.

Judge: Well, how nice of you.

Miller: I’m very glad I got to do it. And I thank you.

Nichols: I have enjoyed, particularly, the fact that I came in to this process expecting to rehear all our lunch stories.

Judge: War stories.

Nichols: And, you know, out of how many times we’ve met, maybe 15 minutes of them were things that I heard before.

An Interview with Dick Walker

Historical Society Board Member Cliff Tedmon (left) interviewed Dick Walker (right) recently at Walker’s home in Washington State.

When E. Richard Walker was appointed as the District’s first Federal Public Defender in 1971, the lawyers in the United States Attorney’s office were understandably apprehensive about how he and his newly created office might seek to disrupt their mission of prosecuting federal crimes. Shortly after his appointment, Walker sat down with the four Assistant U.S. Attorneys in the district and explained that while his job was to provide his clients the best possible defense, he recognized that the most effective way to do that was to establish and maintain a relationship of trust and confidence with opposing counsel and the court. It was more than a speech. In the following months and years, the federal prosecutors of the district came to learn that Walker valued his working relationship with them and that he would never deceive or mislead them. As will be clear from reading the following interview, Walker never has been one to mince words. He will tell anyone at any time exactly what he thinks. But he and the lawyers he hired to staff his office always dealt openly and honestly with the U.S. Attorney’s office and the court during the years that he served as Federal Defender. It is as a direct result of his efforts and practices that the Defender’s office in the Eastern District of California to this day enjoys a working relationship with the U.S. Attorney’s office as favorable as in any other district in the country. That is Dick Walker’s legacy, and this is his story.

 

INTERVIEW OF E. RICHARD WALKER

—oOo—

MR. TEDMON: Date is Tuesday, July 30th. The year is 2002. This is an interview being conducted on behalf of the Historical Society for the United States District Court, Eastern District of CaliforniA. We’re here today to interview Mr. E. Richard Walker, the first federal defender appointed to the United States District Court for the Eastern District of CaliforniA. The interviewer is Clifford E. Tedmon, a member of the Historical Society.

Q. BY MR. TEDMON: Dick, would you state your full name, please.
A. My full name is Elzie, E-l-z-i-e, Richard Walker. I go by E. Richard Walker, and most people call me Dick.

Q. Okay. And would you tell us where were you born: City, county, state.
A. I was born in Elma, Washington, E-l-m-a, Grays Harbor County, October 26, 1931.

Q. And would you tell us in your own words a little bit about your family. For example, your grandparents’ names, your father and mother, brothers and sisters, and any influential relatives you might have had.
A. My grandfather on the Walker side was George. Tell you the truth, I don’t remember Grandma’s name. He was a foreman for Simpson Logging Company here on the Olympic PeninsulA. My grandmother’s name was Nellie Fry. She’d remarried. Fry was dead when I was born, and he — my step-grandfather was named Farnsworth. My mother’s name was Minnie. And my dad’s name was Elzie Hubert Walker. And my dad was a jippo logger, jippo meaning that he did small operations on his own and had a CAT and truck and so forth, aterpillar and truck. So he did small logging operations most of his life. Actually worked on the Grand Cooley Dam with his Caterpillar with a contract with the government when they were building in eastern Washington. My brothers and sisters are dead. I had two sisters. Hazel was the oldest, Florence, and then my brother Kenneth.

Q. And how about influential relatives, people that might have had an influence in your life who were related to you. Might have influenced your choice of occupation, school, or anything like that.
A. Actually, I didn’t have any. I didn’t have any that had any influence. I always wanted to be a lawyer since I was a little kid. I don’t know why. There were no professional people in my family. My sister Florence went to college, but she and I were the only persons that went to college and university from the family. I didn’t have any uncles or relatives that were influential in terms of my wishing to be a lawyer.

Q. In your grammar school, high school days, did any of that help you in forming this interest to be a lawyer?
A. No, just always wanted to be a lawyer. I don’t know why.

Q. Where did you go to high school or grade school?
A. Well, my dad was a jippo logger, so he moved all over the place. I started out in grade school, actually, in a little town called McCleary, which was a few miles from Elm A. Then I went to Elma, and then we moved around. We lived in eastern Washington, up in the Skagit country and so forth, and actually, I ended up graduating from Elma High School.

Q. I see. And following high school what was the next step in your life? What did you do?
A. Well, my uncle — I had an uncle that ran a drive-in movie, in West Sacramento. And I had gone down there out of high school. And I wasn’t doing too much, and I joined the U.S. Air Force and served four years.

Q. What year do you recall entering the Air Force?
A. 1949.

Q. 1949. And you did a full four years?
A. I did.

Q. Where were your duty stations?
A. Well, I went to Lackland for basic training in Texas, and then I was at Keesler Air Force Base for a year. I went to electronics school. I was an air borne radar mechanic. I had a secret classification, and then I went to Naha, which is in Okinawa, and I spent six months on some special training in the Tokyo area doing my two-year stint in Okinawa.
Q. Okay. Did that complete your tour of duty then in four years?
A. I returned to CaliforniA. I was at Hamilton Air Force Base in Marin County. That base no longer exists. And I was discharged at Hamilton Air Force Base.

Q. Now, in fact, then, that four-year stint in the military would have interrupted your educational program; is that true?
A. Yes, but the flip side of it is I got the GI Bill, so it helped me go to college.

Q. I see. Okay.
A. And actually, I started Marin Junior College while I was in the Air Force. I was leaving, and I was a sergeant, a staff sergeant at the time, but at any rate, the sergeant that was in charge of the flight area was — had some people he wanted to train so he could promote them. So he made a deal with me if I showed up for roll call, I was off the rest of the day. So I started Marin Junior College while I was in the service.

Q. And you went to a major college after that?
A. I went one semester at Marin, then I went to the University of San Francisco.

Q. Okay. Now, with that interruption you still wanted to be a lawyer; is that correct? Was that your plan going to the University of San Francisco?
A. Yes. This original plan was — they had a what we call a 3/3 program. You go three years and then you could go into law school.

Q. So it wasn’t necessary for you, then, to graduate from USF, you just went right to law school; is that right?
A. That’s correct. Actually, I transferred, because meantime I got married and financial pressures, I transferred to Hastings Law School.

Q. Okay. And how did you do there? What happened?
A. I attended Hastings for two years. I had an illness, viral pneumonia. And I always remember this, Fishbine was the doctor’s name. And I was a hair’s breadth from being gone.

Q. When you say “gone,” are you talking about —
A. I mean gone.

Q. Okay.
A. He slapped the hell out of me and said, “Breathe, you son of a bitch, breathe.” I’ll never forget that. And I did. And I’m still here.

Q. You sure he wasn’t one of your linguistic professors?
A. Yeah, I’ll never forget that, Fishbine. Saved my life.

Q. One of the things I’d like this tape to reflect is the Walker laugh. It gets rather unique. Well, now, how long were you interrupted by that sickness?
A. I think a year.

Q. Okay. So you lost another year in becoming a lawyer.
A. Correct.

Q. What’d you do then?
A. Well, I got a job as — well, there’s some color to this, but anyway. I’m supposed to be colorful. I went to work as court crier for a U.S. District Judge in the Northern District, Edwin Murphy was his name.

Q. Uh-huh.
A. I used to say, “Here ye, here ye. All persons having business with the Court draw near and you shall be heard.” I used to screw that up a lot, and the judge used to say to me, “I can’t wait to see what you’re going to say this morning.”

Q. Stay with me Walker. I haven’t heard this before.
A. Well, there was an interesting story about the judge. I picked the judge up in the morning and bring him to the court; right? He died, probably of a heart attack, but I don’t recall. But it was very sudden. And I had an FBI agent knock on my door and want to talk to me. And it turns out that he wanted to inform me not to indicate anything about my picking the judge up. It turns out that that wasn’t his wife, that he was living with a different lady and he wasn’t divorced. And they didn’t want me to go to the funeral and say well, you’re not Mrs. Murphy, because I knew the lady. So that was interesting. My first introduction to the court system and some liaison with the FBI.

Q. I see. Following that rather interesting incident, what did you do next?
A. I became a clerical aide in the U.S. Court — clerk’s office for the U.S. Court of Appeals for the Ninth Circuit.

Q. Okay. What did you really do there? What did you do?
A. Oh, I recorded things, just things of that sort. Just administrative work in the office. Paul O’Brien was clerk at the time. He’d been in the office for 50 years and very interesting man.

Q. What can you tell us about him?
A. Well, about all I remember is that he was always on the move, and he would write very short letters. I learned from him to write short letters. He would always say, “Regarding your letter of the ninth instant,” for example. He wouldn’t say like July 9th or something, it was always the ninth. But anyway, the letters were always one page or less. He was a very, very short, to-the-point letter writer.

Q. But that did have an effect on the way you’ve done things, then, Dick?
A. That’s true.

Q. Okay. How long did that stint last?
A. I’m not absolutely sure. I transferred. I went back to San Francisco law school rather than Hastings. I was married, had financial problems. And so I ended up, in effect, finishing my last year, which took two years because of the — you could only take so many courses. So it took me two years to finish, and I actually finished at San Francisco law school, and there because of the number of years I had, because I had more than required, I had a Doctorate of Juris Prudence.

Q. I see. And following that, what was your —
A. Well, summer of ’60 I took the bar exam, and in the meantime also I had gone to work for — I was a law clerk to the late Judge Oliver Carter from the Northern District of California.

Q. Let me ask you this: What was the nature of the law exam that you took? Would it be different then than it is perhaps now?
A. My answer is very simplistic, I haven’t the slightest ideA.

Q. Do you recall the type of exam that you wrote? I mean the number of questions.
A. I don’t remember anything about it except I passed it, that’s what was important at the time.

Q. Okay. That’s fine.
A. No, I don’t remember. It seemed to me like it was, I may be in error, but it seemed like it was a three-day exam or something. It was a pretty long exam, I know that. I took bar review and all that, of course. And read Wicks outline and things of that sort. So there was a little group of us that studied to prepare for the bar, but we took a bar review as well as we’d put together money and bought a Wicks outline, and we shared it.

Q. I see. Now tell us a little bit about this clerk’s job that you had with the district judge.
A. Well, it didn’t mean anything to me at the time. Later I come to understand the significance. But the judge had civil matters that were under submission for up to four years, as I recall the longest one. And I wrote opinions for him on all of those. Not that he signed off on the opinion, but we met, and I would draft and did the opinion as a practical matter. And he had been criticized for procrastinating on, sitting on cases that old and never — I didn’t realize that that wasn’t the way things were done and that if you had a lawsuit, it may take four years for the judge to make a decision. But in any event, I realize now that for the parties and the lawyers, that’s a nightmare. But in any event, I was with him about a year.

Q. Can you recall any major cases you worked on or wrote?
A. Not really. There was one having to do with land problems up in Trinity, Shasta country. I mention that because I ended up back in Trinity County later on. It had something to do with a damn and condemnation and things of that sort. I don’t remember why it was in federal court, frankly. Maybe the Interior Department was involved or somebody, but I don’t recall. That’s about the only thing. That’s the only one that comes to mind.

Q. Did you feel you had a good relationship with this judge?
A. Oh, yeah. Ollie Carter was a great guy.

Q. Tell us a little bit about him as a person.
A. Ollie Carter was a great guy. Ollie?

Q. Yeah. Both of them.
A. Well, number one, I think he was from Redding, California, Shasta County. And he was just kind of down-to-earth. I only stayed a year, and law clerks generally stayed two. And he and I got along well. He wasn’t happy about my leaving after a year. I did it for financial reasons, but it wasn’t like we parted bad company or any of that kind of thing, but he would have preferred I stay on for two years.

Q. Okay.
A. And I left because I had a family and for financial reasons, and I had a much better paying offer from Western Banc Corporation, Los Angeles.

Q. Do you remember how much you were paid as a law clerk in those days?
A. I think it was like six or seven hundred dollars a month. And the L.A. job with Western Bank was like fifteen or sixteen hundred a month.

Q. Okay. Was that the first major job you had, then, after law school, the Western Bank job?
A. Yes.

Q. Okay. Would you describe what you did there.
A. Well, I worked in the legal department for a fellow, the guy in charge was a fellow named Mitchell. The president of the corporation at the time was Maurice Stans. Maury they called him or sometimes referred to as Maury Snaps if you were behind his back, I guess. Who later, as I recall, went to prison because of the Watergate problem. But it was that person. And I met Nixon and some other Republican persons at Stans’s house. He would have some of us from the legal department over for dinner. Invite us out for dinner usually when there was some other people he wanted us to meet, that kind of thing. Not that I was a friend of Stan’s or anything of that sort of thing. I mean, he was one crust above me. He was first class citizen, I was sort of second class. I understood that. That was sort of his attitude and philosophy. Probably why he got into jail, actually. But in any event, they were very capable, interesting men. Plus you met a lot of interesting people. I didn’t stay too long, again, because Los Angeles wasn’t my cup of tea, frankly. Secondly, I’m dealing with all these very
conservative people, and I’m about as left as you can get. So philosophywise I wasn’t in the same ball park.

Q. After the bank job, what was your next position?
A. I was Assistant U.S. Attorney, Northern District, Sacramento, actually. At that time it was the Northern Division of the Northern District of California.

Q. And who were the judges at that time?
A. Well, that’s a damn good question. Sherrill Halbert, of course. You know, other than Halbert — now, MacBride wasn’t appointed yet. I met MacBride while he was still in the Assembly, so I don’t think he had been. I don’t know when he got appointed, but I don’t believe he had been appointed. Sherrill Halbert, and I don’t recall. I don’t know if there was any other judge or not, actually. Might have been just Sherrill Halbert, but I don’t remember. I think some guy — I don’t know if you’ve heard of these guys, but it’s my recollection that maybe Dick Nichols, some guy by that name or Bill Shubb happened to be law clerk at the time. I think, but I don’t recall. It’s my recollection that Shubb at one time was law clerk to Halbert. But I don’t recall whether that’s when I was in the U.S. Attorney’s Office or not. It might have been Dick Nichols, actually. It seems to me Dick Nichols was, but I’m, you know, going back a ways. But it’s my recollection I may have met both of them as a result of them working for Halbert.

Q. Dick, you indicated you wanted me to take a little break. While you’re taking that break, I’d like to describe the area in which this interview is being conducted. If you had to conduct an interview, I can’t imagine a more beautiful spot. We’re sitting on Dick’s deck looking at the gorgeous flowers around his backyard and looking at this very nice home in which he lives. So I feel very fortunate having had the opportunity to work at this particular place at this particular time.

A. One thing goes for sure, I damn sure know how to plant a tree, don’t you think?
Q. I would say you did an excellent job, Dick. Okay. Tell us a little bit more about your work as an Assistant U.S. Attorney. Because other than your clerking, that’s a significant contact with the judicial system.

A. You know, we’re going back a long ways.
Q. Correct.

A. I don’t remember anything particularly dramatic or anything. It seems to me I handled some civil matters, really. But I don’t recall any outstanding case. I’m trying to remember. This wouldn’t have been a case I handled, anyway. But it seemed to me there was some major cases, but I don’t recall, frankly. We’re going back a long ways. We’re back in the early ’60s. So I just really don’t recall much about it.

Q. Were you able to communicate with Judge Halbert on occasion?
A. Judge Halbert invented the back door system. Of course I communicated with him.

Q. Okay. Would you describe that system.
A. Well, it’s very simple, the judiciary had a cozy relationship with the United States Attorney’s Office. Now, ultimately, in the criminal field it diminished some because of the introduction of Federal Defender program, but that was much later. But yes, there was a certain mount of — more so than appropriate, frankly, but that’s the way business was done. It’s kind of like Judge Murphy and the FBI showing up, for God’s sake. I mean, at that time I didn’t think much of it, but now I would say well, that’s not quite cricket. Even though I live on
Cricket Lane, you know.

Q. Let me ask you this: It is important since we’re interested in your observations and your thoughts. Tell us how you implemented this so-called back door relationship. Did you have occasion just to go sit down privately and talk to the judge, or could you tell us how that came about, what you did.

A. I didn’t do anything. It was in operation when I got there. Well, the judge might call you up and ask you back in chambers and say you gotta do this, that, or something else. I don’t recall. I don’t have any recollection of the judge coming up to the U.S. Attorney’s Office. I don’t remember exactly whether the U.S. Attorney — seemed to me like the U.S. Attorney’s Office may have been one floor up. I think the judges were same place they were before they moved to the new building on this second floor, but I don’t recall that. U.S. Attorney was upstairs, I think, but I don’t recall exactly where the office was.

Q. Now, was that the U.S. Attorney’s Office and courthouse in the Moss Building, or was that prior to that?
A. No, we were in the John Moss Building.

Q. You were in the Moss Building. Now, and how long did that term with the U.S. Attorney’s Office last?
A. Again, you know, I moved a lot in the first stages of my career. I was only there about a year, then I went to work for Senator Ed Regan, Edwin Regan, who was chairman of the Senate Judiciary Committee. I was appointed attorney for the Senate Judiciary Committee, and actually, I worked out of, mostly out of his office in Weaverville. And mostly what I did was not senate work. It was for the senator’s business. He represented, he had a contract with the Hoopa Indians, for example.

Q. Now, that’s Hoopa. Spell that, please.
A. H-o-o-p-a.

Q. Okay.
A. In Humboldt County. I handled that account and some others.

Q. Okay. Tell us about that. That’s interesting. You dealt with the Indians.
A. Mostly it had to do with working out problems with the Bureau of Indian Affairs and things of that sort.

Q. Now, that is an operation which always has come under view ever since the old cowboy days. Tell us a little bit about dealing with the Bureau of Indian Affairs.
A. Well, they are, at that time at least, they were — I think things have changed really, but at that time they were very bureaucratic and kind of wanted to tell the Indians what they could do or not do. The fact of the matter is, you know, the Indians have a — well, in California there are no treaties, they’re Executive Order only. But I think Ulysses Grant signed an Executive Order in the Hoopa case. Some were by Abe Lincoln, some were by Grant.

Q. What’s the difference?
A. I’m not aware that the government viewed it with any difference. I think they treated the Executive Order as if it were a treaty.

Q. Is there supposed to be a difference between a treaty Indian system and an Executive Order Indian system?
A. I think an Executive Order signed by the President is not the same as a treaty ratified, so I would say yes, you could make an argument that the Executive Order does not rise to the same dignity and level as a treaty.

Q. Okay.
A. But I don’t recall being treated any differently. On the other hand, I don’t know too much how they treat Indians. Here in Washington state they’re all treaty Indians.

Q. I see. Did you have much interaction with the Indian tribes themselves, like this Hoopa tribe?
A. Oh, yeah. Once a month I went to a formal council meeting, and then the tribal members were there, and you had to deal with questions. One time there was a flap over something, and they were going to recall Charles Moon. I think his name was Charles. Anyway, his last name was Moon. He was chairman of the board. And my contract was — I had to be voted on; right? Now, at this time Regan was gone and I was the person on the contract. In any event, we won by two votes. Now, whether it was rigged or not I don’t know, but we did win. But it wasn’t exactly a landslide.

Q. Give us a physical layout of one of these Indian meetings.
A. I don’t know what you mean by that. I mean, they meet in a place with a room with a table, you know.

Q. You don’t meet in a tepee, then?
A. No, no. Kind of like Board of Supervisors meeting or something of that sort, yeah.

Q. And that’s a tribal council, is it, that meeting?
A. Yeah. I don’t recall how many. There were, like five or seven. They were elected. And then they had a chairman who I mentioned. I think his name was Joe Moon, but I know his last name was Moon.

Q. Okay. And how long did that relationship last with the Hoopa Tribe and after Mr. Regan left?
A. Well, Regan got appointed to the — wasn’t mister, he was a senator.

Q. Sorry. I never was very good at titles.
A. Anyway, he got appointed to the District Court of Appeal for the Third District in Sacramento. And after he left, the District Attorney, he went somewhere. I think he got appointed a judgeship. But in any event, I became District Attorney/County Counsel for Trinity County. And then subsequent to that — well, during that period of time, again, these are fairly short periods of time, like a year or so. My wife and I got a divorce and election came up again and I was finishing out a term. I’d been appointed, I’d not been elected. And there was one other attorney. And Weaverville, Trinity County is a very small county populationwise, and it doesn’t have any incorporated city. Weaverville, Weavy they called it, was not an incorporated city. In any event, I also had a private practice, so I represented people on civil matters, in my private practice part. And I wasn’t too interested in staying in Weaverville. And there was a guy name Shepherd who was an attorney there. He talked to me about running for DA, and I said well, I’m not terribly interested in running, so why don’t you run. And we’ll just see. If I win fine, if not so be it. So Shepherd, Shep we called him, had a little drinking problem. So when we went to meetings out of town, ’cause we would go to Hayfork and various areas that were several miles from Weaverville, I drove him. So we went together, and it was kind of a social thing, and you went around, shook hands, and talked to people, and you didn’t make speeches much and that sort of thing. Anyway, Shep got elected, and I did not get elected, obviously. And the joke around the county was that well, at the time I’m single and I was chasing or looking at some young ladies who were kind of nice in many respects, and so the joke in the county was do you want a sex fiend or a drunk for a DA, and they picked a drunk. What can I say.

Q. Well, it’s one way of losing. We’ll leave all that in, Dick.
A. After the election, Shep won it, which was fine with me, actually. I think it was because of Harry Ackley, actually.

Q. Who’s Harry Ackley?
A. Well, he was DA for a while in Yolo and then became a Superior Court Judge in Yolo County. I think it was because of him. At any rate, the public defender position in Yolo County was available.

Q. Was that a full-time position or a part-time position?
A. It was a part-time with practice, you had staff people. All part time. Everybody was part time. Maybe the secretary wasn’t. But I had three or four attorneys that worked for me. I got appointed, anyway, to the public defender job.

Q. And where was that office located?
A. Well, that’s a good question. I think originally I was in Woodland. I did a lot of work with John Beede, B-e-e-d-e.

Q. And where was he located?
A. In Davis. Ultimately, I got remarried and moved to Davis, but I don’t recall whether I had an office in Davis or not or just worked out of the Woodland office.

Q. For the record what was the distance between Davis and Woodland in miles, if you recall?
A. Well, it’s not very far. It’s like 10 miles or something. And Woodland’s only, I don’t know, miles from Sacramento.

Q. Yeah. Where was your private practice office located relative to your district attorney office? Or was it one and the same thing?
A. Well, not district attorney, probably defender.

Q. I’m sorry, public defender.
A. They’re one and the same. You didn’t have a public office.

Q. I see.
A. You had a private office. But it was in Woodland, on Cleveland Avenue, if I remember correctly. But I don’t know what that means any more. Anyway, it was in Woodland.

Q. Did you have any assistants? Assistant public defenders in there?
A. Yeah, I had three, I think.

Q. Who were they?
A. Well, one was Rudy Bench, Rudolph Bench. You know, I don’t recall. The other guy was pretty prominent. John Beede had been public defender, by the way, and he and I became good friends, and I worked with John some. And then I used to sail with him a lot. If you want to enjoy sailing, make sure you have a friend that owns a boat. See, that’s a key. On San Francisco Bay and down in that area. He had it located in Sausalito. John had been the public defender. He left just to go into private practice. I replaced John Beede.

Q. Dick, you indicated your part-time practice you had worked with John Beede. Can you tell us whether John ever had any impact on how you practiced law.
A. Well, John and I didn’t spend much time together in the practice of law. However, we did spend a lot of time in the boat and that sort of thing and had a lot of discussions about cases and things. Now, John was, you know, not the most sophisticated guy in the world, but he had been an old claims adjuster and very good negotiator and a very good down-to-earth-type, get-a-job-done lawyer. And so in that sense yes, he understood the need to find out what the facts were and get on with it, and not make a federal, excuse the expression, a
federal case out of everything that you touched.

Q. I see. There’s probably a five-year period from roughly 1966 when you left Trinity County to come to Yolo County. Did you practice as the part-time public defender that full five years in Yolo County, if you remember?
A. You know, Cliff, I don’t recall. But it doesn’t seem to me like I had gone back into private practice entirely. Beede and I did a lot of work together, and I don’t think there was any formal association.

Q. Okay.
A. It seems to me like I was probably defender like three or four years only. I don’t think I was still public defender when I was appointed Federal Defender, which was July 1st, 1971. But I frankly don’t recall. I had moved to Davis. I lived in Davis. I’d remarried. But I don’t recall.

Q. At some time during that period of time did you became aware there was an interest in you becoming the Federal Defender?
A. You know, I don’t recall exactly how it came about that I applied for the job. As a practical matter on the Federal Defender thing. Judge MacBride called the shot on it as a practical matter. And I knew Judge MacBride when he was an Assemblyman. Phil Wilkins, I had retained him and a private attorney for the Hoopa Indians to do a lobby job in Washington. He did some lobbying, and he did a good job. So I knew Phil Wilkins. And I knew Sherrill Halbert. Now, McBride’s first choice, actually, was one of his former law clerks. And I can’t recall the guy’s name, frankly. But he wasn’t interested, apparently. And I know there was a full field FBI investigation required, same as for the Assistant U.S. Attorneys and so forth. I had been through that once before, plus I had top secret clearance in the Air Force so other than the divorce, there was no real negative in my past, so I don’t recall. And at that time the U.S. Court of Appeals, actually, was not much involved. Technically, they made the appointment. However, the appointment was done for all practical purposes by Judge MacBride with the concurrence of Wilkins and Halbert. And what happened in that interchange, I don’t know. I know that it was discussed with Phil, and I know it was discussed with Halbert. But what Halbert said or Wilkins said, I don’t know. I know a little bit about what Wilkins said because he discussed it with me at one time, but I don’t recall specifically. But, so that’s how it happened. Whether Jim Hewitt out of San Francisco may have had some influence in reference to my looking into it, because Jim Hewitt was the first Federal Defender. He was in the pilot program. They had four pilot programs. One of them was in San Francisco, and Hewitt was involved in that. Hewitt was an Assistant U.S. Attorney when I was court crier, law clerk, and what was involved in the court system in San Francisco. So I’d known him since 1959 or ’60. And he may have had some influence. We did cross paths once in a while. But I don’t have any specific recollection of that.

Q. Dick, you indicated that Judge Wilkins may have talked to you about some of the things that once occurred during the selection process. Do you recall anything specifically that he told you? He’s gone and he can’t help us in that regard.
A. Well, it was a casual conversation of social setting. Judge MacBride was chief judge at the time.

Q. Okay.
A. And all Phil said was that the judge had talked to him about it, and he said — he called me little Dicky Walker, okay. I think that little Dicky Walker’d be okay, you know, and he’d worked with me and so forth. I don’t know that he had much more input. I think MacBride as a courtesy was talking to him. MacBride being MacBride probably figured he’s going to do what he wanted, anyway. But skipping that aspect of it. And he was chief judge, and I guess that was fine. And PCW wouldn’t have taken any exception or umbrage to that, anyway.

Q. When you say PCW, who is that?
A. Phil Wilkins. Anyway, we generally called him PCW. And depending on his rulings later, we called him some other things. And I won’t get into that. Behind his back, of course.

Q. Yeah.
A. Or not to his face or something.

Q. When you were appointed, was there an investiture procedure, or how were you brought into the picture?
A. No, there was nothing. I was just — you know, I’m a bastard member of the family, so I was just sworn in, that’s all.

Q. Do you remember who swore you in?
A. I actually don’t. To be honest with you. I would imagine it would have been — I don’t recall the Court of Appeals. I know it’s different now and supposed to have been different then. I don’t recall the Court of Appeals being involved at all. And I don’t recall whether I got sworn in or I just got some document that said you’re hereby appointed, signed by maybe the chief judge from the U.S. Court of Appeals. And I don’t remember who the chief judge was at that time. Might still have been Chambers, but I don’t recall.

Q. Before you were appointed, had you had any interaction with the administrative office of the court system in Washington?
A. None.

Q. No contact whatsoever?
A. Oh, you mean in reference to the appointment process?

Q. Yes.
A. Oh, I probably got some form to fill out. But I don’t recall. I don’t recall any interaction between me and the administrative office. Well, they had a CJA division at that time. The guy that’s been there for a long time wasn’t the head of it. There was some other person in charge at that time. But I forget what his name is. I knew him. I mean, I’ve met him, but I just can’t recall his name.

Q. Well, somebody must us have talked to you about salary.
A. Well, the salary was fixed, so, obviously, I knew. I don’t recall what it was, frankly. But I knew what the salary was. It was a little less than the U.S. Attorney, just out of the deference.

Q. And did you receive anything from the administrative office in Washington as to how to set up a Federal Defender’s office. I mean, plans, programs, anything?
A. I don’t recall any of that. I would have discussed it with Jim Hewitt, however, because I know Hewitt well, so, and you know he had a federal — there are different kinds of programs. Cleary’s office in San Diego was basically a panel attorney, and he administered to panel-type operation.

Q. Cleary spelled C-l-e-a-r-y.
A. Yes. First name, John. Hewitt’s operation was typical. It was the same. He was a full Federal Defender. Central District became a full federal district. The Western District of Washington. It was optional, and when I opened the office in Sacramento, Crocker didn’t want me in Fresno. Although I knew Don Crocker. He didn’t want me in Fresno particularly. He had his own little show he operated, and he didn’t need me, he thought. And I did not have an office there. Eventually, the judges felt the Federal Defender should be there, and then I opened an office at the request of the Court.

Q. Who decided where your office would be located when you first came into the Sacramento picture as an appointed Federal Defender?
A. GSA it turns out did it then. They made space available for me. I think I was on the third floor. I think. That’s my recollection.

Q. And the U.S. Attorney’s Office was on the second floor?
A. I think so, yes. Yeah. Ultimately, it seemed to me the U.S. Attorney moved. Are they on the third floor? Well, they moved. Were they on the third floor later? They were. Okay. They took over my space later. They threw me out. I got evicted.

Q. Okay. Now, do you recall what acts you took to set up? Now, this is a brand-new office with a brand-new concept.
A. Well, you have to understand I’d already run a federal or a county Public Defender. I’d already been a District Attorney, and so I knew operational matter, and although the county defender position was part time, I had staff, investigators, and all that stuff. The staff were part time. They had their own offices. We did not share offices. They were in private practice. We all were part-time attorneys. We had no full-time attorneys. And I don’t know that we had any full-time people. I think secretaries and everything else that we hired, part of the salary was paid by the county and part of it by we who were in private practice. We were all in private practice. So but still it was an operational office. So I had that experience as far as how to run an office.

Q. And you could transfer that into your new position.
A. Plus I had been in the U.S. Attorney’s Office. I had been in the legal department for Western Bank Corporation. And I, you know, I had some office experience.

Q. Okay. Who’s the group that actually found the physical area, purchased the equipment and everything? Who was that?
A. You mean as far as the space is concerned?

Q. And filling it up, yes, with equipment, everything else.
A. Well, as far as the space is concerned, I think GSA said this is your space. And we were looking at a certain amount of staff, I think. I may be wrong, but it seemed to me including me there was going to be three attorneys, couple secretary types, and an investigator. The office may have been larger than that, but I don’t recall.

Q. Okay.
A. Let’s see. I think there were three of us to start with, maybe four max.

Q. Okay. Who was the first attorney that you hired?
A. Fair question. I think Bob Baker, my chief assistant.

Q. Okay.
A. I don’t remember much about Bob Baker. He was kind of weird, and but I don’t remember too much about Bob.

Q. Okay.
A. Other than I knew him. I hired people I knew mostly.

Q. Okay.
A. I knew something about.

Q. And who was the first female person in any capacity that you hired?
A. My secretary, which was Tosco Arabini.

Q. Okay. And how long did she stay with you?
A. Anyway, she was with me — you could ask Jane Itogawa, she replaced her. But a year or so, I guess. Two years maybe. I don’t recall.

Q. I’m going to ask you to spell Jane Itogawa’s name, please.
A. Well, her maiden name was HashisakA. And I can’t pronounce the — Itogawa is her married name.

Q. I’ll spell it for you. It’s H-a-s-h, Hashi s-a-k-a. Hashisaka.
A. That’s her maiden name.

Q. Maiden name.
A. Itogawa is her married name.

Q. And that’s I-t-o-g-a-w-a.
A. And her husband’s name is Gene.

Q. That’s correct.
A. Anyway, she came in and then became administrative assistant. And ultimately she handled all — I had everything delegated. Jane was in charge of finances in the office, ultimately. Well, she did secretarial, and she was also my secretary. But she ultimately became administrative assistant. And she controlled all expenditures in the office. If there was a conflict between — oh, the kids are back.

Q. Oh.
A. There are raccoons back there. Don’t pay any attention, they won’t bother you. Anyway, we’re in the country here. The only things I did with finances, if there was a question about whether something could be authorized, usually we had to deal with Dave Kraft on that; right?

Q. Now, who is Dave Kraft?
A. He was the first investigator I hired. And he was there for a long time, and then he ultimately quit to go in private practice.

Q. Did you know Dave before you hired him in the Federal Defender’s Office?
A. Well, it seems to me, Dave could fill you in on this, I think he was a deputy sheriff in Yolo County. And I think he’d left that and went into investigation work prior to my hiring him. I don’t think I hired him out of the sheriff’s department, but I may have, but I don’t recall that. But yes, I knew Dave from Yolo County days.

Q. Okay. And did you hire — what were the names —
A. And Jane was with some guy named Shubb, S-h-u-b-b, in the U.S. Attorney’s Office.

Q. First name?
A. Little Billy. No, William B.

Q. Okay.
A. Like, no, I better put it this way: B like AB. He had something to do because she worked for him, so he twisted my arm to hire Jane. And one of the better things he ever did for me, by the way, but anyway.

Q. At the time you took over the Federal Defender’s Office, do you recall who the United States Attorney was?
A. Well, Dwayne Keyes was there for a long time and David Levi of course was there subsequent to that.

Q. Was there a man named Sillas, Herman Sillas?
A. Well, I’m not so sure Herman wasn’t there when I was in the U.S. Attorney’s Office. I’m trying to recall. Pretty sure Herman would have been there. Depends on where the administration was. I guess I don’t recall. I know I spent a lot of time with Keyes. I was there years. Seemed to me like Keyes was there two terms. I think he left. I think he became a judge subsequent to his leaving the U.S. Attorney’s Office.

Q. Yes. Do you remember the names of some of the Assistant U.S. Attorneys at that time you took over that office?
A. You know, I think Nichols was there. Dick Nichols. Bill Shubb eventually became — oh, I’m sorry. Chief Judge Shubb came into the office, and I don’t recall when he was an Assistant U.S. Attorney. He was at the time Jane came out of the U.S. Attorney’s Office to my office. That’s my recollection.

Q. Was there an attorney there by the name of Bruce Babcock?
A. Well, yes, Bruce, but not at that time. Bruce came later. But yes, Bruce was in the office for quite some time and Nancy Simpson and the guy with the red suspenders, old Brewster Morgan and so forth and so on. There was Tom Couris, he had left the office.

Q. At the time the side A of the tape terminated, you had been mentioning some of the Assistant United States Attorneys. Would you tell us the names of the Deputy or Assistant Public Defenders, the Federal Defenders that you hired other than Baker.
A. Well, you know, our hiring policy was imperfect. I hired Cliff Tedmon at one time, for example. Rod Shepherd, who later was with Beli, he worked with me for a short period of time. Carl Larson, I think Carl was a Deputy District Attorney up in, oh, Marysville or what county, Colusa County. Yeah, Colusa County. Carl came along, and he’s the only one who lasted. I guess he wasn’t a threat to Ruthenbeck, who came along later and destroyed the office. But skipping that aspect of it, I’m getting ahead of myself. I wanted to get that in twice.
Bob Holley. Well, then there was the Fresno office as well.

Q. Now, how did the Fresno office come about? You indicated that Judge Crocker really wasn’t interested initially. How did that come about?
A. The judges themselves decided that, you know, having a branch. I wasn’t out to save the world. Okay? Having a branch office is a pain in the derriere, frankly. And so I never pushed it. You know, and I had enough trouble dealing with Sacramento without trying to save the world. So I didn’t push it. And I got paid the same whether I had a branch office or not, frankly. And so I didn’t have anything to do with that. The judges decided that it was time, and it may have been. You know, the number of judges increased, okay. Crocker’s on senior status, and maybe when he took senior status, I forget whether — I guess Bob Coyle was before E. Dean Price. Anyway, you end up with Price down there and Coyle down there, and I think they decided the Federal Defender should be down there.

Q. Okay. Dick, there is an interesting facet that I think the Historical Society would like to know. You started as a pioneer in a new office concept in an old system. You brought a Public Defender or Federal Defender’s system into the old federal justice system. And it’d be interesting to know how the various entities within that system received your office. For example, how well were you received by the United States Attorney’s Office? What type of reaction did you get? Just that office alone.
A. Resistance.

Q. What type of resistance?
A. Well, they were accustomed to, number one, dealing with attorneys that weren’t quite as well informed on the law as we were. They were not dealing with lawyers with investigators, as we were. And so it was a much more of a quick shuffle to resolve matters. And they were in control. Plus there was a certain interaction with the judges that slowly went by the wayside. It was inappropriate and probably unethical, frankly. Judicial and legal. From a lawyer’s point of view. But nevertheless, those things died out. Now, I did have some vantages over somebody else that might have come in. First off, I knew a lot of people in the clerk’s office personally. I knew the Chief Probation Office personally, and actually, I knew some of the U.S. Attorneys and the judges and the U.S. Marshal or deputy. I don’t recall who the U.S. Marshal was. Nevertheless, they weren’t accustomed to having a defense attorney on every appearance on every arraignment as soon as people were brought in. You know, usually they arraigned them, then they called somebody, and eventually somebody got over, and et cetera, et cetera, et cetera. So now they have to deal with the fact that once arrested, my policy was that individual should be contacted, and we contacted them.

Q. Okay.
A. We didn’t wait ’til the Court came along, decided whether they were qualified for appointment. If they were going to have a private attorney, we’d call the private attorney and say hey, this guy’s in jail, this, that, and the other thing. 90 percent of the caseload or more was qualified for appointment under the CJA.

Q. Now, what kind of reaction did you receive from the Probation Department itself and the probation officers, when you began?
A. Actually, the biggest problem we had with the probation office was dealing with such matters as confidentiality of the probation report. Which to me is nonsense.

Q. What does that mean when you say that? Confidentiality of the report. What did that mean?
A. Well, they would prepare a report, and they would have a conversation with the judge in chambers. The conversation with the judge in chambers and the conversation, written conversation, so to speak, and report weren’t one in the same. So you didn’t know exactly what recommendation they were really making. And you didn’t know whether the recommendation was — at that time we had split sentence, and some portion of six months could be in jail. We didn’t have that. Which I always thought was inappropriate. That got eliminated eventually. But the split sentence was a pain in the derriere. You know, MacBride would have told you a funny story when I was arguing for 90 days on a case. I knew the guy had a recommendation for split sentence. I knew the judge was going to give him a split sentence, okay. So I’m arguing 90 days, and the judge is sitting up — because I’m guessing; right? I figured they’re going to recommend at least a hundred twenty or the whole six months, which really is only five months because they get some credit, anyway. But in any event. So I’m arguing 90 days. And the judge starts to smile a little bit, and I’m looking at him and thinking, you know, I’ve been in front of him a lot, I know him well. You know, he’s got that smile like I’ve got you Dicky; right? So I stopped and said, “You know, your Honor, I think I’ll submit it on the probation recommendation.” He leans over and said, “Very good move, Mr. Walker.” I’ll never forget that. But anyway, those are the kind of things that ultimately we were able to deal with. But the first six months was hell, frankly.

Q. How were you received by the Marshal’s Office?
A. That was an ongoing fight.

Q. Describe that type of problem you had.
A. Well, the fact is they had people incarcerated down in the holding cells; right? And they resisted our interviewing them prior to going to court. Actually, how I got around that wasn’t on the criminal side, it was on the fact, look, Judge, why waste your time. We got to come into court and ask a bunch of questions. Let’s interview them in advance. We could qualify them in the CJA. So that’s what we did. And if we’re going to have an appointed attorney, because we worked on a 75/25 percent margin.

Q. What’s a 75/25 percent margin mean?
A. I made sure that at least 25 percent of all CJA cases went to the panel. Plus I never took more than one defendant in a multiple-defendant case. So if you had three defendants that qualified in the same case, you would have two appointed attorneys and one Federal Defender type. So we were interviewing them in advance. That’s how we got around that problem, and the Marshal cooperated, because the judge told him to. U.S. Magistrate, actually.

Q. Now, how were you received by the U.S. Magistrate at that time?
A. Well, I’m trying to remember who the Magistrate was.

Q. Was it Esther Mix?
A. Esther Mix was there most of my administration, and she may have been there. Now, see, I would have known. Esther Mix was U.S. Magistrate because of Phil Wilkins. Okay? I forget whether she was a partner or whatever, but she was associated with Wilkins, and that’s how she got to be U.S. Magistrate. So I knew her in advance, and I really didn’t have any problem with her. Sometimes people think I’m assertive, more aggressive, perhaps, than I should or use improper language in the judicial forum, which I never do any of that kind of crap, frankly. But I don’t recall too much problem with Esther Mix, frankly.

Q. How were you received by the judges, let’s say Judge MacBride, Judge Wilkins, Judge Halbert.
A. Well, the biggest problem was Halbert, of course.

Q. What type of problem with him?
A. Well, he had run his own court for years. For example, I forget when this happened, and I don’t know exactly what went on, and I don’t know whether anybody actually heard anything. Okay? And if it was, it wasn’t exactly a news bulletin to me, in any event. But either I or one of my attorneys was in the clerk’s office. Inside, not out in the visiting area. On the clerk’s side of the counter, how’s that. The judge came in, was ragging about something, some case, one of our causes, actually. And lo and behold there was an attorney from my staff. So then an order issued that no defender was allowed inside the clerk’s office. That didn’t last too long, actually. But anyway, there was an order by the Court. I guess MacBride issued it. That no defender was to be allowed inside the clerk’s office. I’m not talking about the outside. I mean, inside where the desk and all that sort, where the operations were.

Q. Okay. The operations part.
A. We could go in the clerk’s office, but only on the visitor side.

Q. To file papers and so forth?
A. The business side, yeah.

Q. I see. And that was a short time.
A. But see, I’d done some favors for guys like Grindstaff. He happened to be clerk. I don’t know if he was clerk when I got there. But, you know, Jimmy was a good friend of mine. He’d talk to me. I mean, people would talk to me. They know that I treat matters in confidence. So I knew more about what was going on in that building more than anybody else, actually. People trusted me.

Q. Dick, one of the things that happens in a pioneer program is the guy who starts it routinely has some vision of what he wants that program to accomplish. Did you have any view of what you wanted accomplished once you started this major change in the federal system?
A. Well, the change, of course, is the factor is the Federal Defender Office. There isn’t any change in the sense that I wanted to run a criminal defense law firm. And we did appeals as well. So what I was interested in doing is creating an office doing syllabuses, creating seminars, et cetera, to enlarge the interest and knowledge of the people practicing this special area of the law. Because most of the people over there were state practitioners and federal wasn’t much. And they hadn’t paid them much in the past, for that matter, on the panel. But the point is I wanted each attorney to develop his own personality. They didn’t have to do exactly what I did or any of that sort of thing, because everybody has their own way of accomplishing things. However, I wanted them informed. I wanted them to be aggressive. I wanted them to be willing to try cases, and that was my philosophy. It was a law firm. Happened to be in the Federal Building, and the best thing that happened on that aspect of it was we got evicted eventually, but that was good. As it turned out, I liked it much better when we were outside the Federal Courthouse.

Q. Why did you like it better?
A. Well, the appearance of being in the Federal Courthouse, clients having to come there. You see, we’d have to meet some clients in some areas outside the Federal Building. You don’t want them walking in the Federal Building and running into an Assistant U.S. Attorney or probation officer or somebody. Even a judge, for that matter. That creates some awkward situations and uncomfortable for the client. So we often would meet people away from the office. Even in a bar once in a while. I didn’t believe in drinking on duty. I made up for it after, I might add, but skipping that aspect of it. So moving us out turned out to be a real advantage to us, ultimately.

Q. Now, when your office was in its early beginnings, did any actions taken by the federal government either by way of politics or war or anything else impact your office significantly?
A. I don’t know if it was a war or conflict, you know. I was in Korea, so it was a conflict; right? People getting killed thought it was a war, but skipping that aspect of it. Well, we had the Vietnam situation, and we had protesters, and people arrested protesting, trespassing, you know, that aspect of it. Plus people not going into the draft. I think there was a draft problem. Carl Larson actually handled those matters.

Q. All right.
A. Now, Carl is a — well, let me put it this way to you. If I wanted to tick off the U.S. Attorney, I sent Bob Holley in. If I wanted to appease the U.S. Attorney, I sent Carl Larson in. Now, my view is Carl, he handled a lot of immigration stuff, didn’t try many cases in his entire career there, I don’t think. More court trials and stuff in the Magistrate’s court, but in this area, this mostly is a matter of resolving the thing at a level acceptable, and acceptable was acceptable to both parties in this case. The U.S. Attorney wanted to get rid of it, and so you usually got what I would characterize as a soft disposition.

Q. Do you recall who the U.S. Attorney was that was primary in handling these cases?
A. I think it was old red suspenders himself, Brewster Morgan.

Q. Brewster Morgan.
A. Um-hum. Brewster Q., as I recall, but anyway. He was a character. A lovable character, I might add. I should put that in, I guess.

Q. And were these cases a significant workload for your office?
A. Well, ultimately, the drug cases got to be heavy. But at that time I would say there was a lot of numbers. Now, time consumption is a different question. Because like immigration cases, most of those cases are resolved. So you don’t have a lot of investigation. There are exceptions. I mean, most of the time if we were talking about persons coming in from Mexico, work people, those cases, Carl handled those. Occasionally, you’d get an immigration case where it involved a more significant, more dramatic, and did do investigative work and so forth. Most of them we didn’t investigate. We relied on the reports and so forth, and they were kind of like a revolving door, really.

Q. And Carl also handled the draft evasion cases, the protest cases.
A. And much the same there. Once in a while you’d get a case involving an alleged trespass or something, where people were squatting or camping or doing something, and sometimes Krafty would go out and take some pictures, and we would do some of that, because it would make a difference on the resolution. Okay? And you had a controversy as to where they were and whether they were in fact on federal, and where the signs were posted, things of that sort.

Q. And when you say Krafty, you mean David Kraft, your investigator?
A. Right.

Q. Okay. Okay. Go ahead.
A. I don’t know what percentage, you know, bank robbers were always a regular case and so forth.

Q. As the system evolved, did the workload change, let’s say from 1970 on to 1975?
A. I don’t recall the time spans, to be honest with you, Cliff.

Q. Okay.
A. Ultimately, the government DEA got more involved with the drug world, and we got more and more drug cases. Which took a lot of time. And they were multiple-defendant cases almost always. Usually there was a private attorney involved as well as a court appointed attorney as well as somebody from the Federal Defender’s Office. Now, our philosophy, my philosophy was if somebody came in and said — I don’t like the term public defender. We don’t represent the public in any stretch of the imagination. If they had a choice, they’d vote us out of office. So the Federal Defender had that name specifically because of that. The people that were involved, like McCarthy and Cleary and Hewitt, were sensitive to that. So that’s how the title federal became as opposed to the Federal Public Defender. It was rposely left out. Whether it was in or not, I wasn’t involved in the history of it, so I don’t know of the bill. But in any event, if anybody said I don’t want a public defender, they would use that term, they wouldn’t say federal, we’d say fine. We’d just automatically appoint a private attorney. Because we didn’t have any problem keeping the 7/, even with that. Now, ultimately, the office’s reputation developed to the point where people were in fact asking for our office. We had really no problem with we don’t want you. Okay. And if there was ever a problem during the course of the case and a guy wanted another lawyer, we automatically appointed someone else. Actually, we’d let the client interview the person first. The attorney would come in and meet him, and then the Court would — we did the whole CJA thing. So the Court never bothered us, because we saved them a lot of time and money.

Q. What does CJA mean?
A. Criminal Justice Act.

Q. Okay.
A. Is the one that creates the office as well as the appointment system for panel attorneys.

Q. Now, when you were selecting panel attorneys or people to be on your panel of attorneys, how did you go about doing that initially?
A. Well, you’d like a nice, articulate sophisticated answer. The answer is, if you wanted on the panel, you’re on the panel.

Q. Okay. Were there any forms to fill out?
A. I don’t recall, we may have. Yeah, probably office number and a few things. A little bit about your criminal background. Most of them we knew. Somebody in the office would know, or if I didn’t, I’d call somebody I did know.

Q. Okay.
A. If I had a heavyweight case and I didn’t know anything about an attorney, you know, I’d call Clyde Blackmon or somebody that’s been out in the street for a long time and ask them what they know about this guy or lady. You know, we had both men and women on the panel. More now on the women’s side. In those days there weren’t that many women practicing criminal law. But, you know, now it’s a very different world. Fortunately in my view. But in any event, that’s how it was. We had a panel, and we had a selector of the panel, and that selector did it based on how serious the case was and how good the lawyer was, in her mind, I might add. Not exactly a sophisticated system. But Mabel Adams did one hell of a job.

Q. Now, when did you hire Mabel Adams?
A. Well, Ted was —

Q. Who’s Ted?
A. Ted was her late husband.

Q. Okay.
A. Ted was, I think, Sherrill Halbert’s courtroom clerk. I think. He was a courtroom clerk, at any rate. I think he was Halbert, because he was there when I was in — I knew them, actually, from the U.S. Attorney’s Office. She worked at a college or something, as I recall. Then when Ted died, I think I didn’t hire her until Ted died. And I don’t recall exactly when that was, but that was down the line a little ways. The original panel handling was, frankly, when we first opened, I don’t recall. I may have done it myself. I really don’t recall. Ultimately, Mabel was in charge of that. I had everything delegated in the office. Staff, their favorite saying was things run best when I wasn’t around. But anyway, everything was totally delegated. Because I believe a Federal Defender should carry a 50 percent caseload. I think it’s a little tough. You know the old saying if you haven’t walked in some guy’s moccasins, whatever that phrase is. Well, you can’t criticize somebody for a lousy trial job when you’re not in there facing judges and juries and U.S. Attorneys and lying FBI agents, et cetera, that you have to deal with on a regular basis. So you got all that problem, and you need to do it yourself. You can’t sit back and say oh, well, to to to and this, and you don’t know that, and you don’t know. Well, you say he lied and all that, well, give me a break. I wouldn’t trust the FBI any further than I can throw the state of Washington. Period. End of discussion on that one.

Q. So you did carry a workload along with the other lawyers.
A. Yeah, and I think every Federal Defender should. And I did appeals as well. And I appeared in the Magistrate’s court in such matters as well. I didn’t just pick a big case. I didn’t do that at all, as a matter of fact. Once a case was assigned, I never got involved in it. I don’t care how much press or anything else. I wasn’t interested in that.

Q. Yeah. Now, you had a chief assistant named Baker. What type of duties did you assign to him?
A. You know, Bob may have done the panel but I don’t recall. He was the first guy aboard. I don’t recall. Frankly, I don’t recall.

Q. Okay.
A. He was a bright, little strange, you know. You had to be strange to work for me, anyway. Come to think of it. But anyway. Present company included.

Q. Yeah.
A. But anyway, had to add that.

Q. Okay. When did you hire the next chief assistant?
A. You know, Baker left. Other than Steve Noxen I don’t think I ever fired anybody. Baker left. I forget where Bob went. Something came up and Bob left, anyway. And I think Tedmon came in next.

Q. Okay. And what kind of duties did you assign to Tedmon?
A. I’m not sure he wasn’t in charge of the panel. Now you’re here, you can answer that. Were you in charge of the panel?

Q. Yes.
A. I thought so, but I’m just kind of hazy. Eventually Mabel pretty much ran it.

Q. Right.
A. But my recollection you were in charge of the panel.

Q. Yeah. Excuse me. Okay. We were discussing what you assigned to Tedmon and the panel. How did that come about? What’d you do?
A. Well, we had a helter skelter, excuse the expression, panel in the sense that we had never formalized it, so to speak. And I didn’t want it too formalized. So the thing you were to do is go through and figure out who’s not doing anything, who won’t accept appointments, who’s no longer practicing. I mean, we had people, we just had an open-ended panel; right? So your duties, one of the things you did was clean up the panel and put it in a not terribly formal format but a controllable format.

Q. Was it about that time, say ’73, ’74, ’75, in that era when various Federal Defenders were developing trial books or trial practice books? Do you recall those being developed?
A. Yeah. Well, John Cleary down in San Diego had one. Jimmy Hewitt had one. I didn’t think much of Cleary’s, frankly, but and then we had been to seminars and stuff. You know, they had national stuff that we got together and had speakers provided stuff. Anyway, I don’t remember when we did it. I think you worked with me on this.

Q. Yes, I did.
A. We put together a syllabus for the Eastern District. And then we held seminars here, primarily for the panel, but anybody could come. It was open, actually. And we also did it in Fresno. And then we did the — I don’t know if we did that annually once we started it, or I think we might have done it annually. If not, we updated the syllabus.

Q. Do you remember whether or not the format that Cleary’s book, it was a book I think, took as opposed to the format you wanted to use?
A. Well, we had a loose-leaf. The reason is we wanted to update it. Plus I believe in matters of this sort, the more voices you hear the better. And so we had input from, actually, not only other private attorneys but, you know, some discussions with some of the leading defense attorneys in town. But we also had discussions with the U.S. Magistrate on sections dealing with the U.S. Magistrate, for example. And we had some dealing with, some interaction with the U.S. Attorney and interaction with the probation office because it was a working manual for the district. I think some of the federal judges appeared from time to time to speak to the panel, I mean speak to the people at the syllabus, when we had a meeting on the seminar. That’s my recollection. Certainly the U.S. Magistrate. I’m sure that MacBride appeared. I think Coyle down in Fresno had appeared. At all of them I think we had a U.S. Magistrate. Because U.S. Magistrate had to do with arraignment, bail, and the fundamentals of starting a case. And we always had a cooperation from the U.S. Attorney as well.

Q. Did you ever have in your panels have any view of the importance of starting a case correctly, and did you ever teach that?
A. Well, the answer is yes, because actually, although the bail hearing is a bail hearing is a bail hearing, and a person wants out, the point is we had a lot more bail hearings than the U.S. Attorney would like or the U.S. Magistrate. One of the reasons is it brings out some factors, and you force the agent to provide some information, and this is very important. Human relations is what we’re talking about. Okay. It established a good working relation between the attorney and the defendant. Because the damn attorney was actually trying to help the poor bastard, and not just filing out a form and you’re gonna plead guilty, you know. And there’s overcharging, there’s all kinds of things. No matter how slam dunk the government’s case is, it doesn’t follow that the attorney can accomplish many things for his client or her client.

Q. You gave seminars and weekly or periodic meetings with your staff and with the panel attorneys; isn’t that true?
A. Yes.

Q. And during those meetings what types of comments would you make to these lawyers in their training sessions?
A. Well, they ought to be prepared to try a case, they ought to understand the rules of court, and they ought to understand how to do instructions, and instructions were available.

Q. Dick, we interrupted because the little neighborhood girls came to buy some candy or get some candy from you.
A. It was free. They were bugging me for some.

Q. I didn’t figure. I thought you might sell it to them.
A. Yeah, right. It was a handout.

Q. You were talking about the value of how you react in the Magistrate’s court. Would you expand on that a little bit as in terms of what you talked to lawyers that were at your seminars and meetings.
A. Well, the Magistrate court is the initial contact as a practical matter in court with the defendant. In many cases. Okay? Either dealing with bail, arraignment, whatever. And appointments, of course, were handled paperwise and say they weren’t necessarily appointed, they could be but we processed the paper, and the judge signed it. The Magistrate signed it. Ordinarily. So you didn’t appear, you didn’t have to appear, have an attorney. You did not have to be in front of a U.S. Magistrate. But the first appearance, generally speaking, is going to be in front of a U.S. Magistrate. U.S. Magistrate handled bail hearings subject to appeal to the district court, which rarely happened, frankly. So the critical time to establish the attorney/client relationship is right there. Even though there may be some insignificance in what’s happening, in that some cases you know you ain’t going to get bail, that doesn’t mean you don’t make a pitch. You got to sell your client. We were, I think, rather than kiss the judges’s ass, which a lot of lawyers do, you should make it difficult for the judges. And they will eventually respond properly, and as a result you get a good client/attorney relationship. Our business was to deal with clients. Our business was not to please the Court. And some people would say to me if you annoy the judge, he’ll get back at you. Well, that works
both ways. I can get back at the judge too. And they knew that. And I didn’t have that problem. And besides that, I think as a practical matter other than a few ruffled feathers here and there to start with, the judges come to realize their job was much easier. They didn’t have to deal with some guy saying I want a real lawyer, I don’t want this lawyer, and coming back into court. You didn’t have that, none of that. And the bail was handled — well, later they had pretrial services. But initially you tried to negotiate bail with the U.S. Attorney. Sometimes there was a time factor and you continued bail hearings because you don’t have the facts; right? And a lot of times the U.S. Attorney didn’t have the facts. The Assistant U.S. Attorney appearing would not necessarily be the one handling the case, and the case agent wouldn’t be there, and they’d have to talk to the case agent. And sometimes if you wait rather than just say I want a hundred thousand dollar bail or whatever, the U.S. Attorney would negotiate, after talking to the agent. And they got to the point where they would. So the Magistrate’s appearance was very important even if nothing very important is happening. It established the first connection between attorney and the client. We also had, which I think’s important, we had CJA attorneys appear. We didn’t appear with them and say okay, we’ll get you some lawyer. We made sure we got, we hustled people over there so that the initial contact was with the lawyer that was going to handle it. Or if for some reason there was objection, then we immediately got someone else. So we didn’t fool around with a lot of unnecessary appearances by our staff who were not going to be involved in a particular case. I don’t think it’s appropriate, anyway.

Q. And at the meetings, do you recall stressing it’s really setting the tone for the defendant and the attorney with respect to probation, the Marshal’s office, and other entities that are in that Magistrate’s courtroom?
A. Well, all of those things, plus, you know, the other stress is you’ve got to be willing to try a case. If you’re willing to try a case — if you are a dump truck lawyer —

Q. What’s a dump truck lawyer?
A. Lawyer that always settles, always pleads out, never goes to trial. Prosecution knows that. They’re not going to negotiate. They’re not going to settle at the same level as they will with some attorney they know will say, “Go to hell, we’ll try this thing.” All right. “I’ll take my chances.” It ties them up. It ties resources up. You never know what a jury’s going to do. They can hang up. I mean, I’ve lost them when I shouldn’t have, won them when I shouldn’t have. Had them hang up when I’m a dead bang loser. Had them convict when I had a dead bang winner. I mean, you never know what a jury’s going to do. I love juries, but they are really a crap shoot. But skipping that aspect of it. If you know you’re dealing with a law firm that will try a case, it makes a difference on resolution. On so many cases. I mean, there’s some cases, like Squeaky Fromme, for example, there wasn’t going to be any resolution on Squeaky Fromme, for God’s sakes.

Q. Would you spell Squeaky Fromme’s last name.
A. F-r-o-m-m-e.

Q. Okay.
A. Lynette is her first name. But in any event. That kind of case whether you plead guilty or plead not guilty or whatever you’re going to do in a case. Now, that one you’re not going to settle, of course. The President was involved.

Q. For the future members of the History Society who might not be familiar with that, would you talk a little bit about the Fromme case. How you first entered into it. How it came about. And what actions you took. What were the facts of the case initially?
A. She stuck a gun at Gerald Ford, couple inches from Gerald Ford’s head in the park behind the Capitol, with Secret Service. She was dressed in a Red Riding Hood outfit. Secret Service let her walk up to the President, and she pulled a trigger and nothing happened. I briefly looked at a book on Fromme you brought. It appeared what he’s saying in the book is not factually accurate. But in any event, my recollection is there were none in the chamber that clicked. And it’s also my impression from — well, I handled the matter pretrial. When I say I, Bob Holley and I actually handled the case pretrial. And I got out of it because well, nicely, it was quoted for lack of rapport. Fromme and I discussed it. I felt we had a slight conflict in that I felt she had no intention of harming the President. Which made a difference between life and ten years. So life and ten years is a slight difference. She was fairly young. But in any event, she wanted to go to prison and commiserate with Charlie Manson. I mean, that’s the way her thinking was. And had she wanted to kill Gerald Ford, she would have. Also one other thing we did in that case, with her approval. She was a very cooperative client, by the way. Reasonably intelligent. Probably took a trip out on something, never got all the way back. But skipping that aspect of it. Her mind had some distorted thinking in it. We had arranged for, with her permission, a video examination. Gerald Ford, actually, in Washington D.C. I think the book, I just read a little bit of it, seemed to indicate he was here, but that isn’t true. I was the one that engineered that. And John Virga, we had John. Well, what I did was we had five attorneys interview. John Virga was one. Clyde Blackmon probably. Anyway, five of ours. Some of the people didn’t appear much on our panel. I don’t even know if they were on the panel, actually. But in any event, they probably were. But the point is that I knew she’d pick John Virga because he was the best looking. And that’s what she did. She picked John Virga. And John did as good a job as you can do, I guess. Actually, I don’t have any criticism of John on how he handled the case. I think he handled it the only way you could handle it. I think the outcome was inevitable, frankly. I don’t care if you could dance on water. But I wasn’t involved, after I got out of it, I didn’t have anything more to do with it.

Q. You had several major cases in and about your office in the ’70s. One involved a woman named Sandra Goode, G-o-o-d-e. Do you recall that case?
A. Well, I think Sandra Goode was paneled out, wasn’t it?

Q. Do you know who it was paneled out to?
A. I think it was some jackass that worked for me at one time named Tedmon.

Q. No. We’ll pass on the characterization.
A. Well, the truth, you know, truth isn’t always beautiful.

Q. I know.
A. I mean, I know Sandra Goode. I’ve met with Sandra Good also.

Q. I think she was —
A. Well, go ahead and ask me again.

Q. I refreshed your recollection. That was the jackass’s recall. Would you now tell us.
A. I thought you had left the office at the time. Well, you know, actually, now that I think about it, I think it was Sir William himself, Bill Shubb.

Q. I believe that’s correct.
A. I think it was. Yeah.

Q. Yes.
A. Now, I knew her as well. Okay? Because of Fromme. She was also an interesting lady. She had been in my office, and I had that golden eagle that the — I don’t know if I told you this story about the Magistrate and the eagle and all that on the tape.

Q. We don’t have it. We’ll have you do that.
A. Anyway, she was in my office, and there was another lady with her. They were friends of Fromme. Can’t think of the other lady’s name. Anyway, they went bananas over the fact that I had this golden eagle; right? Because, oh, I should be shot because I had the golden eagle. Well, I explained to them, sort of went along with them to some extent. I didn’t want to get shot, but I didn’t kill the golden eagle. And I wouldn’t kill an eagle, and so forth et cetera, et cetera, et cetera. And that actually it was a bird forfeited by Fish and Wildlife for the U.S. Department of whatever it is.

Q. While we were on that, how did you get the bird?
A. Well, I had ducks, too, you know.

Q. Well, I’m not here giving you the bird, by the way. I’m asking how did you get the golden eagle.
A. Well, as I mentioned, it belonged to Fish and Wildlife; right? They had forfeited it. Well, what happened is before I received it, about 24 hours before I received it, I was in the Magistrate’s court on a Fish and Wildlife violation of some sort.

Q. Which magistrate?
A. Mix.

Q. Okay.
A. And I was back in chambers, and she’s got all these stuffed critters that come from Fish and Wildlife. I don’t remember what was all, but there was some birds and various things. I don’t remember what all she had. Her office was kind of full of them; right? So I made some comment to her that, you know, it might be some question whether you should judge a Fish and Wildlife case with all this here. It could be interpreted in the wrong way. The next day the golden eagle and the duck showed up. So I kept my mouth shut after that.

Q. Ultimately, a lot of this arose out of seminars that you gave. How often did you determine it was in the best interest of both your office’s personnel and panel to hold training seminars?

A. Well, do you have a sense of humor? We charge a small amount to come to these things; right? And we use that amount to help finance the annual thank-God-we-made-it-through or sometimes referred to as a Christmas party. So depending on how — no, I think we did them, we did them at least, I think we did them, tried to do them annually because it was an update. It was fairly informal. We charged a modest amount depending. We actually, we had some we didn’t charge, but depends, but, you know, we updated the syllabus, you got the new syllabus with any changes in it in reference to this. You know, like when pretrial services came out we would have updated it and so forth. We did all of that. In addition to those seminars, the CJA, the Criminal Justice Act people in Washington. Ted Lidz was there originally. He was not the original guy, but Ted Lidz, L-i-d-z —

Q. L-i-d-z.
A. — ran it for years. Anyway, there were seminars for staff people, and I think maybe even investigators, but I don’t recall. I think Dave Kraft went to one, but I don’t recall that for sure. But certainly Holley and all the assistants went to seminars. I think they went to one down in Texas. And they were sort of annual, plus it was a nice interchange with some other people from other areas to find out what’s going on and get some lay of the land as to what kind of case they handled, what kind of dispositions they were getting. So you got a comparison. So there was a lot of importance to seminars besides the technical material at the seminar. Just the association of the attorneys gave you a national view on how they treated drug cases in Texas compared to California, for example, or things of that sort.

Q. You mentioned you charged a fee to offset the costs of what you call the Christmas party. How did that program start? Because you became pretty well known for those parties, I think.
A. Well, I should. They got up to about four or five hundred people. We started July 1st, as I recall, in 1971. The first six months was hell. Okay? Now, I’d been in the court system in San Francisco in various capacities. There the press corps and some others had a little less elaborate but, anyway, had a little in-house booze and things of that sort. Some hors d’oeuvres, appetizers, whatever. And all the judges came around, law clerks, clerks. It was a judicial family thing. Okay? By judicial family I mean Probation, U.S. Attorney, later Federal Defender, later pretrial services, clerk’s office, court reporters, U.S. Marshal. Anyway, all the people that work regularly in the Federal Courthouse in reference to the court system. That includes judges, law clerks, U.S. Magistrates and their staff, and people like that. That’s what I call judicial family. Not any outside people. So the first year I said the hell with it. So, you know, you’re not supposed to have booze in the building, and so I invited the U.S. Attorney. I invited the judicial family, okay. Basically, when I say everybody, I’m simply saying most of the people from most of the offices but not every person from the U.S. Attorney’s Office, for example, and not everybody from the clerk’s office, for example. But courtroom clerks certainly were there and so forth. All the judges were there except Judge MacBride. Matter of fact, I think MacBride only came to one Christmas party towards the end of my — just before I left, actually, when we were over in Old Sac. His view was that my office shouldn’t be doing that. It was a matter of propriety with him, and I can appreciate that. But Judge Garcia and other people, Wilkins and all those people came, mostly the law clerks and people.

Q. Dick, if you’ll recall at the close of the last session you were beginning to discuss some of the Christmas parties that you had and the reasons for them and how they developed. Could you kind of run by that again and then follow it up.
A. Well, as I mentioned, the original party was when we were in the federal building, and the first six months was very difficult, and I kind of said the hell with it. So we had this little open house for judicial family only. And which included the U.S. Attorney’s Office, clerk’s office, probation, Marshal, judges, clerks. But anyway, it was an in-house. And we got a fairly good turnout. Then subsequently we were moved, our office, we got evicted, actually, but, anyway.

Q. How did that come about, Dick, the eviction; do you know?
A. Well, I think, my recollection was that the U.S. Attorney was expanding, and they needed space and they were moving, going to take over the space where we’re located. And there really wasn’t any space, apparently, available in the federal building. So MacBride made a deal with GSA without discussing it with me, so I was slightly annoyed about that, actually. But in any event, I found space over at Firehouse Alley in Old Sacramento. Next to Laughs Unlimited, which probably was subtly appropriate, but anyhow, we moved out.

Q. What was Laughs Unlimited, Dick?
A. They did little shows and things like that on a humorous basis. Anyway, after moving to Old Sacramento, we expanded the annual party to include panel attorneys and secretaries and people of that sort. Actually, the party got up to probably at the end of it we were doing like maybe 400 people. We usually got a large group around noon, and then secretaries and support people, and then around 3:00 or 4:00 judges and lawyers and people like that would show up. So we had two groups, so to speak. Some people came and stayed all day, as I recall. But in any event, it served another purpose, actually. And that is during the course of the year there were certain antagonisms that developed between our office, U.S. Attorney, and members of the U.S. Attorney’s Office and various agencies. And it kind of had a healing process. We kind of started out January st back on square one. So it actually served a purpose other than just a social event. The other thing about it was that some of the staff didn’t want me to invite FBI or other people, but my view was that it was open house, so the invitation went to all the agencies. We usually got some agents from all the agencies. And all the judges came with the exception of Judge MacBride who had some question about a federal agency, essentially mine, in a judicial branch serving liquor. But in any event, he did come towards the end. Also some of the people from Fresno used to come up as well. So, actually, it served a very good purpose. And it was supported by the panel attorneys, and other people made contributions. Some people donated liquor, some people donated food, some people donated money. Because we couldn’t finance that large of a party. I used to call up, oh, like Clyde Blackmon. Clyde, around the st of December, and Clyde said, “Okay. How much?” And that kind of thing. But anyway, that’s how.

Q. I think we all experienced that at one time or another.
A. That’s how we paid for it. Anyway, it served a very good purpose. We had some great food, some great times.

Q. Yes. I will add to that. After I left the office and became a panel attorney, this for the record, in my mind, was the largest Christmas party that was ever done in Sacramento County by a law firm. Okay, Dick, take over.
A. I used to make gallons of eggnog.

Q. I remember that.
A. But anyway, it served a very good purpose, really. And you got to see some people you hardly saw anymore, that kind of thing.

Q. And how did your staff participate with you? Did they have certain functions, or did some people do one part of it, some another part? How did that work, Dick?
A. Well, Jane Itogawa, my administrative assistant, for example, she made sushi.

Q. Very good, by the way.
A. Yes, very good. I made sure I got that before anybody else did. And Mabel did some things. They all contributed something. And some of the wives of the attorneys or support people, they would make various things, deviled eggs or that kind of thing.

Q. Well, you used to do a roast, didn’t you?
A. I used to do a couple prime ribs. I did prime ribs, and generally I did some prime ribs and eggnog, that was generally my function. And I think probably Mabel ran the panel, as a practical matter, and I think she probably kind of coordinated it, as I recall.

Q. Yeah, I think so.
A. Food, you know. And people brought things too. We never knew quite what we were going to have, but sometimes people brought particularly cookies and things of that sort, but also people sometimes would bring some kind of food item, and we’d simply add it to the table. Anyway, it was a hell of a party. What can I say.

Q. Yeah, I agree. You know, when did you make your move from the Federal Building to Old Sacramento, if you recall the year?
A. No. We were in the — I don’t recall. We were in the Federal Building a couple years or so, but I have no recollection.

Q. So would you say sometime around 1975 maybe?
A. Could have been, but I don’t recall specifically.

Q. Okay. I left the office in 1978, if you recall.
A. I don’t recall that either. Those are details that I don’t recall particularly.

Q. Who did you pick to replace me as your chief assistant?
A. Unfortunately, Art Ruthenbeck.

Q. How did that come about?
A. Art was in the Federal Defender’s Office in San Francisco. Jim Hewitt called me up and said that he had Art Ruthenbeck and he was a pretty good man and so forth and so on. So that’s how that happened. And Jim was a Federal Defender in Northern District.

Q. Now, during that period of time following my leaving and Ruthenbeck taking over, did you have some form of litigation with the Sacramento County Sheriff’s Department?
A. Yes. Well, we affectionately refer to it as a jail suit. Or they later said I was trying to build a Hilton for the prisoners. But anyway, what happened was jail conditions were overcrowded and quite poor. Visitation between attorneys was poor, et cetera, and I had complained to the Marshal who housed federal prisoners there and the FBI and the judges, and they all sort of brushed me off. So I had a client who was a minor client, kind of a burglar-type guy. I forget what he was charged with, not too old, hung himself in the jail. So I said the hell with it. So I authorized Art Ruthenbeck to file the action. Art collected from John Cleary and other people in the system some jail-type lawsuits that were available that had been filed in other areas. Anyway, he put together the lawsuit and filed it, and actually he handled the jail suit through judgment, and about that time he left. So actually we had an ongoing administrative role with it. It was a continuing jurisdiction case. And the sheriff said a lot of bad things about me during that.

Q. Did you have any face-to-face meetings with the sheriff at that time?
A. I did not.

Q. Okay.
A. However, what happened is they got a several-million-dollar grant to build a new jail. And instead of being low grade, I suddenly became a hero. Actually, they made me an honorary deputy sheriff.

Q. And you have that here.
A. Yes.

Q. In your home.
A. And the sheriff, was a different sheriff, but the sheriff when I retired gave me a plaque that among other things said to a good friend and worthy adversary, so. They were never quite in compliance with the jail condition suit, but my view was if there was substantial compliance and good faith, I never called them on it. They had one section they wanted amended, I don’t remember what it was. I told them I wouldn’t stipulate because I thought I had a duty to discuss it with inmates and there’s too many and they wouldn’t agree, anyway. So I told them that if they filed it, I would take no position, knowing Judge MacBride as I do or the Court as well as I did, I knew the judge would grant it if I didn’t take a position on it. Which he did, he granted it from the bench. So that was the only change, and I don’t remember what that was exactly.

Q. There was a case which had some notoriety, Dick, that you participated in. It was the so-called Chilton case. Can you describe the case and what happened.
A. Well, that was an unlawful flight to avoid prosecution. Chilton, it’s my recollection he had embezzled, accused of embezzling funds from the teachers’ pension fund. And he had a lot of money or whatever. Anyway, he wanted to come in. I don’t think Chilton called me. I think some attorney called me and asked me if I would handle it. And I said yeah. Well, I said yes. Anyway, the FBI found out about it. How they found out, I don’t know. I don’t recall that. And so they were critical. They felt that I had a duty and obligation to tell them where Chilton was. Actually, I didn’t know, but I told them they could go fuck themselves, and laid out the ethical obligations I had. And I did bring Chilton in. Matter of fact, there’s some humor to it. I had a Fresno office at this time. And close to the Fresno office there is a motel where Assistant U.S. Attorneys and myself and other people stayed when we went down to Fresno because it was a block or two from the Federal Courthouse. I was walking. I was meeting Chilton, oh, 1:30, 2:00 o’clock, I guess, in the afternoon. While I was walking in, I think it was Greg Hollows, he was civil. I met him. He was walking out of the building, and we stopped and chatted for a moment, and Chilton was up in the hotel and gave me the signal that he was there while I was talking to Hollows. Hollows learned about that later. I don’t
know how he did that, but he always kind of chided me about the fact that I was going to meet the guy right behind his back, so to speak. Anyway, that’s about all there was to it. He came in, and then he went over to state. I don’t know what happened to him.

Q. After Ruthenbeck left, who did you appoint, if you recall, as your next chief assistant?
A. I think Carl Larson.

Q. Okay.
A. Carl was chief assistant when I left. I think Carl.

Q. Okay. Dick, I recall when I was your chief assistant at one time we were having a discussion, and we were talking about one of the requirements or capabilities, should be the capabilities of a good criminal defense lawyer, and I recall you very clearly saying to me really one of the secrets of being a good criminal defense lawyer is to have the ability to coordinate a lot of other agencies or people’s activities who really, as you said, don’t give a shit about your client. Could you kind of expand on that, because that had kind of an impression on me.

A. Well, number one, I was Federal Defender, so I had more interest perhaps than a person who just represents a particular defendant on a particular occasion. But you do have to coordinate the expedite, the bail hearing, for example, which involved the U.S. Magistrate, the U.S. Attorney, and the U.S. Marshal in terms of getting the individual over. And they would whine about certain kind of how come you’re having this hearing at :0in the afternoon kind of thing. But so you have to influence those things. And this was preceding pretrial services. Sometimes the Court would ask with permission to have probation officer do a sketch on the individual in terms of verification of some matters. Occasionally, the U.S. Attorney would do that as well. But so you have to coordinate all those focused in order to get people thinking in terms of release. And eventually you do that enough times and then more and more release is accepted and conditions are imposed, travel restrictions, for example, monetary for example, things of that sort. So that we were able to get more and more people released pretrial. And it’s much better to have a client released, improved the settlement. Most cases got resolved, as a practical matter. If you have a client out, it creates a different attitude in the prosecution’s mind, and you could get a better result. As well as the judge. After all he’s out, anyway. Why put him back in jail argument. If it’s not too severe. If it’s too severe, he probably wouldn’t have been out, anyway. But so those are activities that have to be controlled. You have to make sure the clerk’s available and the Magistrate’s acceptable, and you have to orchestrate all those. And after a while it became more accepted to do those kind of things. And bail hearings frequently would be put over a day or so in order to put a package together. And that came about primarily because of the influence of the defender’s office.

Q. And did you not transmit that thought processes through some of the seminars that you held and meetings?
A. Well, course with CJA attorneys, they work through our office. And sometimes we actually appeared on bail hearings if the CJA attorney for whatever reason wasn’t available, we sometimes would make that appearance on the bail only. And then also our offices were available to the private sector, private being attorneys representing defendants who were not on a retainer basis. So a lot of them used our office or they certainly used our syllabus and had discussions with staff people, myself, and other attorneys. And out-of-town attorneys sometimes would use our office to leave briefcases and what have you. So there was a coordination between the retained attorney, which was a small percentage, and our office. So we were kind of the cornerstone of criminal defense for all cases.

Q. Did you find that even attorneys who were not on your panel were still interested in the seminars you put on just by way of attending and gathering information?
A. I think most of the criminal attorneys who were interested in federal came to the seminar. I don’t recall whether we had that cross-pollination thing with Ken Peterson and stuff, which I hated. I mention his name because he was the man who was doing it primarily. I don’t know whether any of the assistants actually came to the seminar. Now, Assistant U.S. Attorneys did appear to make presentations on behalf of the U.S. Attorney’s Office at our seminars. In other words, I had someone from the U.S. Attorney’s Office and sometimes the U.S. Magistrate. I wanted to have a total perspective. So frequently at the seminar we would have somebody from the U.S. Attorney’s Office, Criminal Division appear. Generally not the U.S. Attorney, but the head of the criminal division or somebody that practiced criminal law routinely would be invited, and they generally participated.

Q. For the record, who was Ken Peterson at that time?
A. He was a Deputy District Attorney in Sacramento County.

Q. And how much communication did you have with him on this, a significant amount or small amount?
A. Other than yelling at him all the time, I don’t recall much communication. And I hated the cross-pollination. I thought it was wrong. I occasionally could be vocal, as I recall. So on that subject I was somewhat vocal.

Q. As we’re sitting here talking right now you’re expressing some very interesting thoughts, and they don’t seem to come across as Judge Wilkins says on the tape this curmudgeon out there. Was that a device, or do you feel that was just part of how you like to handle things?
A. Probably the way I am.

Q. Well, you were a personality, Dick, you know that.
A. Well, you know, when you’re inside the system, you see it very differently than when you’re standing outside the system. For example, the question of who gets prosecuted and who doesn’t get prosecuted is determined by the United States Attorney’s Office. Most cases ended up before a Grand Jury with the U.S. Attorney and an agent coming in and saying, Joe Schmuckogrubber did this, and he should be indicted on counts. That could take, oh, if it was a very complex case, it’d probably take minutes; right? You know, you could probably get Buffy the dog indicted in front of a Federal Grand Jury. I mean, it’s laughable to think it’s somehow an adversarial thought process that results in the right kind of charges. So the U.S. Attorney simply makes a decision, and they aren’t always consistent. Agents have a lot of influence regardless of whether they’re FBI, DEA, or whatever. And sometimes what they want has to do with not so much the criminal offense but the aggravation or the negative interaction that occurred between the DA and the particular individual. In other words, they were ticked off at the guy, they might push for additional charges. Because they know if there are more charges, the chances of resolving it at a higher level is better. The more charges you have, the better position the U.S. Attorney is sure of. Dismiss five counts, well, probably should have been charged with one count to start with. And now you’re down to two, and two makes a difference in terms of probation attitude and the judge’s attitude in terms of resolution. So those are all significant matters, and U.S. Attorney called the shot.

Q. If you were teaching a young attorney what his role would be in representing someone who has to appear before the Grand Jury, what would you tell him he could and could not do?
A. I’d tell him he couldn’t do a hell of a lot. First place, he’s outside the grand jury room. Secondly, other than telling somebody to take the Fifth Amendment, you don’t really represent someone, to be honest with you. You simply are there as window dressing for a little advisory session just to protect the record for the government prosecution. So I don’t think that there’s much to do other than some witnesses are there to testify with a settled arrangement with the United States Attorney as far as their own prosecution is concerned. Now, to that extent they have served a purpose. But as far as just representing a witness, the attorney doesn’t have much role other than say don’t say anything, or keep your mouth shut and make sure you listen to the question carefully, and don’t volunteer anything. A few advisory things of that sort, but it’s not much representation.

Q. Dick, in 1984 there was some changes in the sentencing system. Do you recall those changes coming about?
A. Well, I don’t recall the year. As you know, I’m not very good at that. You’re talking about the sentencing guidelines.

Q. Yes.
A. That caused me to retire, ultimately, from the practice of law. My view is that first place, again, we’re back understanding the system. The government, the U.S. Attorney’s Office, makes a decision on sentences, on charges. Those charges translate, ultimately, in what the individual is sentenced on. So the question of sentencing guidelines had to do with back giving more and more authority to the U.S. Attorney, and they already have too much to start with. So in that sense it was inappropriate. Secondly, as much as the federal judges are all over the ball park on sentencing. I mean, you have conservative, moderate, you know. We had a lot of visiting judges, like when I was there, I got stuck with a lot of visiting judges. Irving Ben Cooper, who is really an interesting character.

Q. Tell us about Mr. Ben Cooper as a judge.
A. Well, he is senior judge out of New York, as I recall, Southern District, I guess. First place, we’re kind of casual out here by comparison to some Federal Courts in some areas. Casual in the sense not that we don’t wear ties, but kind of milling around and doing this in the courtroom and somebody, U.S. Attorney and the defense attorney might be chatting about this and that and the other thing when the judge comes in. Well, in Cooper’s case, first, everybody had to be in their place. At first we didn’t know necessarily what that meant, but we learned very quickly. But anyway, you could see him standing out the door just prancing around waiting to come in because we were not quite —

Q. In place?
A. We weren’t quite in place. So that was — took place. Then during the trial, I guess Shubb tried the case. I forget what the case was. Anyway, my client had committed about perjury charges. So I made a deal to settle it for X, Y, Z, or whatever it was with no perjury. So we pled out before it went to jury. Now, I don’t remember what the probation recommendation was or what Bill Shubb was asking. But when Cooper sentenced a guy, he stood up and said things like, “On the one hand.”

Q. And he raised his right arm.
A. And he’d raise his hand and say, “You were in the military. On the other hand, you got this criminal record” and crap. Anyway, it went on and on and on. I guess the right arm was the good parts and the left arm was the bad parts. He was pretty consistent about that. So he gets all done with this. Hell, I thought he was going to put me in jail, too, the way he was carrying on. He gave the guy months, which was better than any judge I would have gotten in the Eastern District. You know Manny Real was an another crazy guy. Andy Hauk, God almighty. Anyway, so you never know. But the point is in reference to guidelines, the power has shifted more and more to the U.S. Attorney’s office. And the U.S. Attorney’s Office is influenced by the agencies, the investigative agencies. And the other thing that happens as a result of that is that some person — let’s say you got a marijuana smuggling case. You know, I think marijuana ought to be legal, anyway, but skipping that. You had some person that’s kind of a mule, a person not very involved and can’t contribute very much to the U.S. Attorney in terms of making a deal to testify in return for a soft sentence. So you end up with some guy or some lady that’s more involved making an arrangement, and the guy or lady that’s not involved gets more sentence than the people who are heavily involved. And that comes about because of sentence guidelines. I know the Court can vary it. But more and more they get used to it, and they’re not going to do that. I mean, eventually, I think that’s the way it is now, probably. I’m not practicing anymore, but that would be my expectation, that as it goes down the line, becomes more and more accepted, it makes it easier on the judge because he doesn’t have to think about anything, as a practical matter. And probation, pretty soon it gets to be rote, and pretty soon you punch in this number and you have computerized sentencing, as a practical matter. You know that’s wrong, we’re dealing with human beings. And we put too many people in jail for too long a time, in any event. So you lose some of that. In spite of the fact that judges are all over the ball park, give me a judge any day. I’ll take my chance with them, you know. Sherrill Halbert is very more severe-type sentencer than Judge Karlton or Judge MacBride, for example. But nevertheless, I would prefer that over the sentencing guidelines. Probably get a better deal with Halbert outside the guidelines than if you were within them. So, you know, there’s no reason to put people in jail for these long periods of time. It’s stupid. It’s very expensive, it’s not cost effective as far as a human is concerned. We should be concerned about keeping people free, not iincarcerated. Well, I decided to retire because the — I had retired from the Federal Defender’s Office. I had with military and everything else in age, I actually retired. And I continued to do criminal defense work in the Federal Court, much of it panel, actually, because most people can’t afford real lawyers, so to speak. However, with the sentencing guidelines the opportunity to be effective, in my view, diminished. I became more of a facilitator, if you will, than a criminal defense attorney. I just found that unacceptable, and as a result I quit the business. I could have gone into something else, I guess, but I was in a position to leave. And I don’t regret leaving, I might add.

Q. Dick, we’re kind of getting toward the end here. I was asking what — looking back on your career, which spanned a large number of years, a large part of your life. And the different things you did, built your ideas and concepts, is there anything you would have liked to have changed in the time you started as a young lawyer and all the way to retirement?
A. Oh, I probably would just focus on the Federal Defender. I moved around a lot because of opportunities and money needs with the family and so forth. And I don’t know, I had an experience that most people don’t have. Whether I should have stayed somewhere longer or whatever, but I’m not much for looking back in that regard. But as far as Federal Defender is concerned, other than hiring you, you know, that ought to be reexamined.

Q. Well, I expect that.
A. But the Federal Defender developed into an influence in the criminal world, criminal defense in Sacramento. Our office was definitely an influence. The U.S. Attorney would consider what I might do or not do if they were going to introduce some new policies. And they introduced a policy or two, I don’t remember what they were, they backed off on because I made it clear that wasn’t going to wash. But we had developed a very good law office. It’s my approach to it was that I didn’t tell lawyers how to practice law, taught them what the
law was, et cetera and let them develop their own personality. I had my own way of doing things, and not everybody could get away with what I did, frankly. But so everybody had their own style, and they were allowed to do that because then you get the maximum use out of a criminal defense attorney. There’s no right way to do things. You know, as far as motions are concerned, of course, that’s standard. But the personality of the individual has a lot to do with what may or may not happen in a particular case. Carl Larson was an attorney who generally speaking resolved matters. All right. Trying wasn’t his cup of tea, and we assigned cases accordingly. You know, if I wanted to annoy the U.S. Attorney or the Court, I’d just send Holley in, as a practical matter, or myself and so forth. But in any event, so the selection of cases came about primarily because of that. And Mabel Adams actually did most of that. I didn’t pick and chose cases. I took Lynette Fromme because it was a heavyweight case. And Bob Holley and I worked it jointly, actually. In any event, then probably the greatest error I’ve made, one that I do in fact regret, was putting Ruthenbeck in as Federal Defender, which I did. There’s no question I did that. I had been reappointed three times. I could have been reappointed again. There was never any controversy about my appointment.
And I told Art I would support him. I’m kind of an old union man. And I told him I would support him on the basis he not fire the attorneys and personnel and live without, because nobody actually had protection. I mean, it was at the discretion of the — he agreed to that. And then promptly fired all the attorneys except Larson. I think support staff he kept. But he fired all the attorneys, Fresno and Sacramento. Then he was into creating a dynasty of some sort with adding people. Well, my view is you keep a good panel going. Panel served two purposes. It was an interaction between the staff people that kept everybody a little more on their toes and made you had an aggressive competition going, and therefore the defendants got served better both by panel and staff attorneys. Additionally, the filings, criminal filings
fluctuate. So if the filings went down, you could make less appointments and deal with that problem without being overstaffed. And then you were obligated. I didn’t have a legal obligation to do, which is what I worked at. And I could have a little less, a little more, for that matter. So that was important. Ruthenbeck cut back on the staff to enlarge his own people. I guess he felt — I don’t know what he felt, because needless to say, he and I didn’t discuss much. He was perfectly aware of my view of him. And I don’t think Quinn Denvir’s a damn bit better, frankly. But I guess if they had bigger offices, they’re more important people in their own mind. Unfortunately, the defendants suffer, the system suffers, and the Federal Defender’s Office becomes just another big old Public Defender’s Office. The dump truck warms up, and away it goes. And you’re more interested in stats and things of that sort than you are the individual. My focus was on the defendant. I think that’s been lost, frankly. And I don’t see the purpose of it. And I don’t remember what Ruthenbeck did, but I know Quinn Denvir doesn’t do much in reference to being in court himself. Now, I think in order to understand what’s going on in the courthouse, the Federal Defender should carry about a 5 percent caseload. And not just the big cases. He should or she should do cases pretty much as staff does or at least the senior people. Which is what I did. So that’s, that’s the one great regret. Fortunately, I take some, not much, but it made me feel a little better that Ruthenbeck got fired. But skipping that aspect of it. Another thing that Denvir did that I find mildly amusing. I don’t know if this means much on this tape. But last year they had an E. Richard Walker Memorial Golf Tournament sponsored by the Federal Defender’s Office. And I learned about it, actually, from Barry Nix personally. He used to be on my staff. He thought it was mildly amusing. He wanted to know if it was a living or dead memorial. So I called up. I found out who was handling it in the Federal Defender’s Office. I don’t remember who it was, some young person. I don’t know if he’s a lawyer or not even, but not that that’s relevant. So I called him and asked him if it was a living or dead memorial. Then I told him who I was. And I said, you know, you bastards didn’t even invite me. And even after the conversation they didn’t invite me, and they didn’t get permission to use my name. And I don’t like my name being associated with Denvir and company, frankly. So I would appreciate — if they do it again, I’m not going to do anything about it, but I thought it was wrong. Showed no class, frankly. Lack of sensitivity, how’s that. And my recollection, Steve Bauer, who I kept alive for a long time, I think he might have won. He was one of the winners, anyway. I don’t know what you win but — Anyway, that was the greatest error I ever made was supporting Ruthenbeck for Federal Defender. I think he took a good law office and made it into an administrative, bureaucratic operation which does not serve the criminal justice system well.

Q. Any further comments you care to make while we wrap this up, Dick?
A. Thank God I made it.

Q. Well, I’ll make a final comment. I worked for Dick for approximately six years as a chief assistant. And I learned an enormous amount about how to be a criminal defense lawyer, and I think that same thing can be said for anyone who actually had an opportunity to study under him or work under him. And with that I want to thank you, Dick, for participating in this. The Historical Society will be very happy with what we’ve done. I think it will have an understanding of you which it may not have had before. And I really appreciate your cooperation. And on behalf of the entire system, including Chief Judge Shubb, I want to thank you. Thank you very much.

RUTH CRAWFORD TRANSCRIPTION (530) 577-4008

THE CAPTAIN

VIDEO IS AN FLV FILE. INSECURE, NOT USABLE.

Judge Halbert attended law school at Boalt Hall from 1924 to 1927. One of the most famous, at least the most memorable, professors at that time was Alexander Marsden Kidd, affectionately known as Captain Kidd, or just “the Captain.” In this video taped excerpt from his oral history, Judge Halbert recounts a couple of his memories of the Captain. [Can you identify the two lawyers with Judge Halbert?]