Th e U.S. District Co u r t o f Or e g o n Hi st o r i c a l So c i e t y Ne w s l e tt e r Chief Judge Ancer Haggerty “Resolutely continuing his determined efforts” By Vicki L. Smith (This article was developed from Chief Judge Ancer late Judge Clifford Freeman (born June 2, 1944 Haggerty’s oral history conducted by Clark Han- and passed away August 21, 2006), who would son December 2005–March 2006. It is on file with end up being not only a dear friend, but one of the Historical Society on behalf of the U.S. those with whom Haggerty competed at sports and District Court of Oregon Historical Society.) games over fifty years of friendship. Others have written about Haggerty’s competitive spirit both Chief Judge Ancer Lee Hag- on and off the racquetball court. However, Judge gerty was born on August 26, Haggerty best illustrates this for us himself in his 1944, in Vanport, which written eulogy about his friend: “Remembering was Oregon’s second largest the Honorable Clifford Freeman” (Oregon Bench- city at the time with nearly marks Fall 2006). There, he says, “I met Clifford 40,000 inhabitants. The City when he was 11….Soon thereafter, he launched a of Vanport occupied the area lifelong, but ultimately unsuccessful, quest to try where Delta Park and the to beat me at dominoes.” Portland International Race- That competitive spirit served Haggerty well as way are currently located in he became a star athlete at Jefferson High School Chief Judge Ancer Haggerty North Portland. Vanport was (which, incidentally, will celebrate its centennial in hurriedly built in 1942-43 2009). Haggerty was a fullback on Jefferson’s 1960 out of the need for housing for those who were Portland Interscholastic League (PIL) championship recruited from across the country to work in the football team. Although Jeff was also the 1961 PIL Henry J. Kaiser Shipyards in Portland and Vancou- Football Champion, Haggerty was side-lined that ver during World War II. In 1943 Haggerty’s father Continue on page 4 and mother, Roy and Anne Haggerty, came from Marshall, Texas, so Roy could work in the Kaiser Shipyards. Vanport disappeared about four years later on May 30, 1948, when part of a Columbia River dike collapsed and put Vanport under water.

Although born in Vanport, Judge Haggerty and his Courtesy of REACH mom, dad, and sister lived in a house on North Han- cock Street near where the Portland Public School’s headquarters are now located. Haggerty was raised in inner Northeast Portland, which is also where many of the former residents of Vanport moved after the 1948 flood. His father died in 1947 of tuberculosis. His mother subse- quently remarried and his family then purchased a house on Northeast Highland Street. He attended For many years, Judge Ancer Haggerty has offici- Woodlawn Elementary School and Jefferson High ated at the graduation for REACH Community School. Along the way, Haggerty, at age 11, met the Development’s Youth$ave program.

Fall 2008 1 several years President’s Message on a history of our firm, This message marks the end of my two-year reign as presi- which is still dent of the Historical Society. It’s been my privilege to serve unfinished.” our members, together with a visionary board comprising vol- Kester a lso unteers committed to the long-term success and growth of our participated organization. in the prepa- I am particularly grateful for the board participation of our ration of the federal judges, including Judges Edward Leavy, Anna Brown, Oregon State Dennis Hubel, and Trish Brown. Their guidance and direction Bar history continues to be immeasurably important as we advance the Soci- Serving Jus- ety’s programs and our members’ interests. tice, he has contributed articles for Speaking of the judges, the Hon. Owen M. Panner has been Benchmarks (ranging from remi- (continues to be) one of our principal supporters in a myriad of ways – i.e., niscences of judges to thoughts on board leadership, funding, lifetime membership, direction, and more – since changes in federal practice and the the inception of the Historical Society in 1984. The board decided that rebirth of Portland’s streetcars), and 2008 would be the year to recognize Judge Panner with our Lifetime Ser- he authored the chapter covering vice Award. For those of you who attended the October 30, 2008 Annual from 1927 to 1950 for the U.S. Dis- Dinner at The Governor Hotel, you witnessed first hand the presentation trict Court of Oregon’s history, The that we prepared concerning Judge Panner, the kind remarks by the Hon. First Duty. James A. Redden (thank you, Judge Redden), and Judge Panner’s impromptu Kester indicated that “my pack-rat response. Unlike prior award recipients, we did everything in our power to tendencies, to never throw anything keep this award a secret from Judge Panner. away, have made it difficult to clean I’m supremely confident that the Historical Society will be in good hands out my office, now that I’ve retired. In in 2009. The presidency will be transferred to David Landrum. David is an other words, lifetime membership was attorney with the Portland City Attorney’s Office, a long-time board mem- a natural.” ber, and the immediate-past treasurer. The role of vice president will go to When asked if there’s someone Kari Furnanz, a partner with Hoffman Hart & Wagner, LLP. Our next trea- who had been most influential in his surer will be Michelle Barton from Miller Nash LLP. And, our secretary for commitment to the Society, he men- 2009 will be Kathryn Roberts, who currently is serving as a judicial clerk tioned the late Judge Gus Solomon. He for the Hon. John Acosta. I look forward to working with these officers as remembered that once upon a time, I continue to serve on the board. Judge Solomon asked him to compile a list of local cases that might be of Kerry J. Shepherd historical interest. Kester prepared President, 2008 such a list but never knew what Judge Solomon did with it. Later, when the late Judge Jim Burns had the gather- ing at his home on the bank of the Willamette River that resulted in Randall Kester: the formation of this Society, Kester A Lifetime Member’s Commitment thought that maybe that listing of cases had some effect. At that meet- By Jen Coates Conroy ing, a federal judge from San Francisco andall Kester (retired from Cov- our national told about their efforts in starting a Rgrave, Vergeer Kester LLP) became culture, and historical society for their courts, and a Lifetime Member because he believes all the bits and his remarks were so effective that a strongly in the purpose of the Society. pieces of local motion was passed to start one here. He was involved in the beginnings of history help When that was accomplished, Kester the Society and was its first president to c omple t e was elected president. Judge Solomon and first recipient of its Lifetime Ser- the picture. remained an active booster of the Soci- vice Award. In an interview for this Ac cord i ng ly ety, and his widow, Libby Solomon, article, he mentioned: “I believe that I have been became an honorary member of the legal history is an important part of working for Randall Kester Board of Directors.

2 U.S. District Court of Oregon Historical Society A Supreme September in Portland By Adair Law veritable pride of Supreme Court Ajustices ambled through Portland from September 12 to 19. As part of a celebration of Willamette University’s College of Law’s 125th academic year, on September 12, Justice Ruth Bader Ginsburg participated in the dedication ceremony for the law school’s new Ore- gon Civic Justice Center. Later in the day, she addressed a crowd of 1,700 in a speech that touched on the history of From left: Judge , From left: Justice Sandra Day O’Connor, legal decisions and labor laws, particu- Justice Ruth Bader Ginsburg and Judge Dean Robert Klonoff and Justice An- larly those affecting women. She started Susan Graber. Photo by William Baer, thony Kennedy. Photo courtesy of Lewis out her speech mentioning Muller v. courtesy of Congregation Beth Israel. and Clark Law School. Oregon, a 1908 Supreme Court deci- sion upholding Oregon restrictions was in Portland for various speak- that the Justice loves teaching. Dean on women’s work hours. (For more ing engagements. On September 17, Klonoff had arranged for him to teach info, see “Muller v. Oregon: Women, she was the featured speaker for the a class. Justice Kennedy pushed him Labor and the Law, and the Birth of the World Affairs Council of Oregon. She to put add another class to his itiner- Brandeis Brief,” Benchmarks, Winter/ described herself as the first cowgirl ary, and when he arrived in Portland, Spring 2005). on the Supreme Court. The title of he asked for yet another. During his On Saturday September 15, Justice her speech was “Balancing Security, visit, students in two classes (regula- Ginsburg spoke at Congregation Beth Democracy, and Human Rights in an tions and ethics, wills and trusts) and a Israel as part of their 150th anniversary Age of Terrorism.” During the audience seminar in comparative constitutional commemoration. Rabbi Michael Z. question and answer section, she chose law enjoyed Justice Kennedy as a spe- Cahana welcomed all, and noted that, not to address questions that had to do cial guest teacher. with U.S. Court of Appeals Judge Susan with her past decisions. She noted that Justice Kennedy mentioned that he Graber and Oregon Court of Appeals you can’t second-guess yourself and be had been involved in the first graduate Judge Ellen Rosenblum both choir an effective judge–it was important three-year law school in China, the members, Congregation Beth Israel had to the do best you can and don’t look Peking University School of Transna- more women judges in its choir than back. She was asked how growing up tional Law (the school was dedicated on any other in the state. Judge Rosen- on the Lazy B Ranch had affected her October 22, 2008). This will be China’s blum introduced Justice Ginsburg, and career. She said that as a young girl first American-style law school, offer- Judge Graber was part of a panel ask- working on the ranch, she learned early ing a complete three-year, English-lan- ing questions after Justice Ginsburg’s about the necessity of workable solu- guage J.D. curriculum. Justice Kennedy speech. Justice Ginsburg’s presentation tions. In relation to her judicial work, noted that 2,800 students applied for was titled: “The Man Who Would’ve she commented, “My decisions may the fewer than 100 openings. He read Been the First Jewish Justice: Judah P. not be beautifully crafted, but they’re some of the application essays, many Benjamin.” During the question and workable.” of which noted that they first became answer portion she was asked what it Justice O’Connor spent time at Lewis interested in the law through watch- was like being the only woman on the and Clark Law School talking with 500 ing American movies. Justice Ken- Supreme Court. She commented that students (see O’Connor article, page nedy thought they had been inspired she was continually confused with Jus- 15) and she was a keynote speaker on by movies such as Twelve Angry Men tice Sandra Day O’Connor when they September 18 for a conference celebrat- or A Few Good Men. He was very were both on the court. She noted that ing the 40th anniversary of the Federal surprised to learn that Legally Blonde she now missed being confused with Judicial Center. Supreme Court Justice was a common source of inspiration. Justice O’Connor. Anthony Kennedy addressed the confer- After viewing the movie, it occurred Had Justice Ginsburg prolonged her ence on September 19. He has long held to him that they must have felt similar Oregon visit, she could have had the a strong commitment to legal training. fish-out-of-water feelings to those of opportunity to be confused with her When introducing Justice Kennedy, the main character. once again. Former Justice O’Connor Law School Dean Robert Klonoff noted Continue on page 7

Fall 2008 3 Judge Ancer Haggerty continued from page 1 season from a leg he broke on the first those professional sports thoughts, day of practice. As a side note to the although in 1967 he did play one sea- prowess of Jefferson’s athletes during son of semi-professional football with Haggerty’s era, Terry Baker, Oregon’s the Eugene Bombers. only Heisman Trophy winner, and Pro The Vietnam War ensued during Football Hall of Famer Mel Renfro Haggerty’s college days and he joined (Dallas Cowboys), among others, were the Platoon Leader’s Class program of on the 1958 Jefferson football “dream the Marine Corps. Upon graduation in team” when Haggerty was a freshman. 1967, he was commissioned as a Sec- Haggerty was also a champion wrestler ond Lieutenant with a three-year com- and was inducted into the PIL Hall of mitment. He went through his marine Ancer Haggerty receiving the Silver Star. Fame in 2005. training at Quantico, Basic School in He graduated from Jefferson High Quantico, Virginia. Although Judge by six or seven months. As it turned School in 1962 and went on to the Uni- Haggerty described the drill instruc- out, those classmates arrived in Viet- versity of Oregon where he wrestled, tors at Quantico as “brutal,” he cred- nam right during the Tet Offensive, played football, and no doubt con- its the mental and physical aspects of causing that basic training class to tinued the dominoes domination of his football training with helping him have the highest number of casualties his old friend and then college room- get through it more easily than some. of any other basic class going back mate, future Judge Clifford Freeman. Football was important at Quantico, to World War II, according to Judge After his freshman year Haggerty too, and he was essentially ordered Haggerty. The Tet Offensive began in was a one-sport collegiate athlete, by a two-star general to play for the January 1968 when the Viet Cong, in playing offensive guard and defensive Quantico Marine Corps football team. conjunction with the North Vietnam- tackle for the Ducks throughout col- To ensure that football did not result ese Regular Army, set up a huge assault lege. At that time, a legal career was in a loss of some of Haggerty’s basic covering a substantial portion of South not as much on Haggerty’s mind as military training, he was ultimately Vietnam. Judge Haggerty was not in was becoming a professional foot- assigned to Camp Lejeune, North Car- Vietnam during the Tet Offensive, but ball player, since he played alongside olina, as his first duty station. The bulk when he arrived in Vietnam he, too, numerous folks who went the profes- of Haggerty’s Quantico basic training saw immediate combat. sional sports route. The Vietnam War class received immediate orders to ship First Lieutenant Haggerty arrived and its consequences would interrupt out to Vietnam, while he was delayed in Vietnam on September 1, 1968, and was wounded on September 11, 1968. At the time, he was serving as a platoon leader with Company B, First Battalion, Third Marines near Mut- ter’s Ridge in Quang Tri Province, in the northern part of South Vietnam. His platoon came under attack and he suffered numerous shrapnel wounds, the most serious of which was to his right arm. After multiple surgeries and months of convalescence, he knew that any post-war hope of a profes- sional football career was over. Lieu- tenant Haggerty was subsequently awarded the Silver Star, the nation’s third highest award for valor in com- bat. According to an August 14, 1969, Oregonian article, Lt. Haggerty’s cita- tion stated: Shortly before dawn, the Marines Ancer Haggerty in the Jefferson Varsity Football team photo from the 1962 Spec- were attacked on two flanks by trum Yearbook. Courtesy of Jefferson High School Library. a large North Vietnamese Army

4 U.S. District Court of Oregon Historical Society force employing small arms and year Marine Corps duty, Haggerty machine gun fire. Swiftly rally- had decided he was going to law ing his men, Lt. Haggerty fear- school. Attorney Paul N. Daigle (now lessly led the platoon in a bold retired), with the firm that became counterattack, destroying hostile Schwabe Williamson & Wyatt, con- emplacements established during vinced Haggerty to look at his school, the assault and forcing the enemy UC Hastings College of Law, as an soldiers to withdraw. Lt. Hag- option. Despite a long waiting list at gerty was hit in the legs, arms, Hastings (unbeknownst to Haggerty and [head] by mortar fragments, the admissions personnel had great Julie and Chief Judge Ancer Haggerty at but unhesitatingly exposed himself admiration for Marine Corps officers) the 2006 USDCHS Annual Meeting. to the heavy volume of enemy fire he was admitted the week after he sent more frequently for dinner with his as he directed his men to covered in his application. After graduation, he children. He has never regretted that positions within the company returned to Portland and started work decision. He was appointed to the lines. Steadfastly refusing medical for the Metropolitan Public Defender Multnomah County District Court in attention, he resolutely contin- as a law clerk in 1973 before he was 1989 and to the Multnomah County ued his determined efforts until sworn in as a lawyer. As Haggerty tells Circuit Court in 1990 and served there his unit was safely established in it, he got the news that he passed the until 1994. He was nominated to the defensive positions. bar exam in September 1973, and was federal bench by President Clinton in Although his Vietnam injuries ended subsequently sworn in as a lawyer on a November 1993, confirmed by the any of Haggerty’s hopes of a profes- Friday, and had a jury trial as a Metro- Senate, and received his commission sional football career, Vietnam is also politan Public Defender staff attorney in March 1994. He has been our Chief partly what led him to the law. This the following Monday. Judge since 2002. started in basic school where he had His next career move (again at the Although Judge Haggerty has pre- to take a class concerning the Code of urging of Paul Daigle) was to go into sided over many high profile cases Military Justice. His classmates com- private practice from 1977 to 1988 during his years on the bench, none plained about the difficulty of studies with the Schwabe firm. Although his was as notorious as the Multnomah and tests. Haggerty did not think so life experiences with the military may County Circuit Court trial against and got a 100 on the test. He started have helped convince him to become Tom Metzger and the White Aryan thinking more seriously that perhaps a lawyer, it was thoughts of his fam- Resistance during October 1990. he should be a lawyer. Then, at Camp ily that helped him decide to become a The case, tried by Morris Dees of the Lejeune, he defended several people in judge. He married his wife Julie in 1983 Southern Poverty Law Center and his platoon in court martial-related and his two daughters were born in Portland’s Elden Rosenthal, was a proceedings and became a member 1985 and 1988. With his busy practice civil action to hold a racist group and of the court martial panel. In the eve- at Schwabe, it was difficult to be any- its individual leaders liable for the nings, more senior lieutenants and where near home for dinnertime when November 13, 1988, beating death of he would discuss the matters and, he was traveling all over the state and an Ethiopian-born student (Mulugeta as reported in his oral history, Judge country doing discovery, depositions, Seraw) done by local area skinheads Haggerty ultimately concluded “I do and trial preparation. Judge Haggerty in Southeast Portland. Several books like this law stuff.” thought that taking a position on the and a PBS special by Bill Moyers dis- By the time he finished his three- bench might allow him to be home cuss the trial in which a Portland jury awarded $12.5 million to the family of Mr. Seraw, essentially finding that the killers were agents of the racist White Aryan Resistance organization and its leaders Tom and John Metzger. The Metzger trial involved massive round-the-clock police security for Judge Haggerty and his family and the other trial participants. As a side note, Judge Haggerty became the trial judge on that case in an unusual way based on the description by Morris Dees in The 1980-81 Oregon State Bar Examiners including Ancer Haggerty (third from left) Continue on page 7

Fall 2008 5 From left: Judge Anna Brown; Judge and Justice Martha Walters; and Judge Donald Ashmanskas. Photos courtesy of Jodee Jackson. Women Judges Meet in Portland By Heather Van Meter he National Association of Women Local true crime author Ann Rule throughout the program. Portland TJudges held its 30th annual meeting spoke at the annual awards banquet. attorney Norm Sepenuk spoke about in Portland (for the first time) October The banquet also served as a book his experiences as a criminal defense 15 –19. Several hundred women judges drive for the Coffee Creek Women’s attorney at the International Criminal from all over the country and as far as Correctional Institution library, and Tribunal for the former Yugoslavia at Egypt attended the conference. conference attendees brought many The Hague. Portland attorney and Conference chair and Oregon Court books to donate to the library. mediator Susan Hammer spoke on a of Appeals Judge Ellen Rosenblum The Audrey Hepburn Children’s rule of law panel. Multnomah County organized a highly successful confer- Fund played a significant role during Circuit Court Presiding Judge Jean Kerr ence highlighting some of Portland and the conference, sponsoring a reception, Maurer and Portland attorneys Robert Oregon’s best and brightest lawyers film, and panel discussion on child Alsdorf and Charlie Hinkle spoke on and judges. The conference also gave trafficking and child prostitution. The a panel discussing media communica- attendees a chance to experience Port- Hague Convention on International tions. Judge Rosenblum noted during land’s natural beauty and other regional Child Abduction was a panel discussion the first breakfast that the Multnomah highlights. The conference included a topic, with participation from Wash- County Circuit Court now has a major- reception at OHSU with tram rides, ington Supreme Court Justice Barbara ity of female judges and its first female a tour of the Pioneer Courthouse, a Madsen and University of Oregon Pro- presiding judge, which garnered a major reception at the Mark O. Hatfield U.S. fessor Merle Weiner. round of applause. Courthouse, a walk around the Espla- Chief Justice U.S. District Court of Oregon Mag- nade in downtown Portland, and vis- Paul DeMuniz and former Ninth Cir- istrate Judge Patricia Sullivan provided its to Powell’s Bookstore, the Chinese cuit Court of Appeals Chief Judge Mary sage advice to new judges on a panel Garden, the Japanese Garden, and Schroeder welcomed conference partici- with New York Supreme Court Judge Oregon’s wine country. pants on the first evening, after which Tanya Kennedy, Anchorage Superior Keynote speaker and Pulitzer prize- Massachusetts Appeals Court Judge Court Judge Sharon Gleason and Elev- winning Supreme Court reporter Linda and NAWJ President Fernande Duffy enth Circuit Court of Appeals Judge Greenhouse spoke about the current gave her annual report. Oregon lawyers Rosemary Barkett. Other panels high- state of journalism and journalist free and judges were featured prominently lighted interests such as prison pro- expression. Greenhouse then par- grams, featuring Multnomah County ticipated in a panel discussion on the Circuit Court Judge Julie Frantz, and Roberts court and the development of aging population issues, featuring the Supreme Court during her decades former ABA President Karen Mathis, of coverage. Donzaleigh Abernathy, Washington County Circuit Court daughter of Southern Christian Lead- Judge Rita Batz Cobb, Los Angeles ership Conference founder Reverend Superior Court Judge Judith Chirlin, Ralph David Abernathy, also gave a and Oregon Deputy Attorney General moving key address and slide show Pete Shepherd. discussing her personal involvement Womens’ issues in the practice of in the American civil rights movement law and inside the courtroom were and the lifelong relationship between Gartland, Nelson, McCleery, Wade & also highlighted during the conference. her father and Reverend Dr. Martin Walloch of Eugene won the Oregon Multnomah County Circuit Court Luther King, Jr. Women Lawyers’ Workplace Award. Judge Marilyn Litzenberger moder-

6 U.S. District Court of Oregon Historical Society ated a panel discussing reproductive with Lewis & Clark Professor Doug technology and its legal implications, Beloof. Multnomah County Circuit Judge Haggerty continued from page 1 also featuring Portland attorney San- Court Judge Adrienne Nelson moder- dra Hodgson. A panel discussing how ated a pro-se litigants panel featuring his 1993 book Hate on Trial: to bring about needed changes in law U.S. District Court Judge Anna Brown Our motion for such a [complex firms featured Oregon Court of Appeals and Multnomah County Circuit Court case] designation was heard by Judge Darleen Ortega, U.S. District Judge Maureen McKnight. Multi- Donald Londer, chief judge of Court of Massachusetts Judge Nancy jurisdictional tribal court issues were Multnomah County. Elden Rosen- Gartner, and Massachusetts Appeals also discussed, featuring Washington thal was present to argue our posi- Court Judge Fernande Duffy. An all- Supreme Court Justice Susan Owens, tion. When Tom Metzger heard the Oregon panel also discussed the role Hon. Teresa Pouley of the Tulalip name Londer, he remarked that it of alternative dispute resolution, and Nation and Hon. Mark Pouley, Chief sounded Jewish. He then insisted he included former Oregon Court of Judge of the Swinomish Tribe. didn’t want a Jewish judge. Judge Appeals Chief Judge Mary Deits, U.S. The conference was a major success Londer advised Metzger that Judge District Court of Oregon Magistrate in all respects, and Judge Rosenblum Haggerty, who was relatively new Judge Janice Stewart, former Oregon was widely praised by all participants to the bench and did not have a Supreme Court Justice Susan Leeson, and attendees for one of the best NAWJ particularly busy docket, was the and Portland attorney Jeff Batchelor. conferences. next judge in line to hear a com- At the end of the conference, Oregon plex case. Women Lawyers and the Multnomah Rumor has it that Metzger thought Supreme September cont. Bar Association co-sponsored a stand- or perhaps responded that, “‘Haggerty’ ing-room-only roundtable discussion sounds like a nice Irish name and that on law firm best practices to support someone named Haggerty would be pref- women attorneys. erable to someone Jewish.” Thus, Judge The conference also featured a timely Haggerty—who later became, Oregon’s panel discussing attacks on judicial first African-American federal court independence and judicial elections, judge— presided over the state court featuring Marion County Circuit Court trial of an avowed racist who represented Judge Mary Mertens James, Missouri himself and his organization in trial, and Supreme Court Judge Richard Teit- who started that trial by telling the jury elman, and Georgia Supreme Court in voir dire (again, according to Morris Judge Carol Hunstein, and moderated Dees’ book): “I am a white separatist. I by Marion County Circuit Court Judge advocate radical ideas. I’m not apologiz- ing to anyone for our beliefs.” Claudia Burton. Justice Kennedy spoke of the chal- Science and technology also was a Two weeks in Vietnam—wounded— lenges to keeping the Article III branch and a Silver Star. Two weeks with Tom prominent area of discussion during of government strong. He asked a the conference. Marion County Circuit Metzger in a hate trial—most would counterpart in China about their three be wounded—no medal available. Court Judge Pamela Abernethy mod- most important cases and discovered erated a panel on the science of early So goes at least part of the life of our they were settled by mediation, not by Chief Judge. childhood development and its role in trial. He was concerned that there were the courtroom. Oregon State Universi- a shrinking number of cases that would ty’s Gail Achterman moderated a panel attract the best that are practicing law discussing science and the environment to be judges. in the legal system, featuring Lewis and Justice Kennedy took a question Clark professor Melissa Powers. Mult- about how he dealt with the stress of nomah County Deputy Trial Court work. He noted that he was an opera Administrator Tracy Cordes moder- fan, and liked to listen while he worked, ated a courtroom technology discus- noting that there were one-opera and sion, featuring U.S. District Court of two-opera briefs. When he shared this Oregon Bankruptcy Judge Trish Brown information with attorneys in a dif- and Oregon Supreme Court Justice ferent part of the United States, one Virginia Linder. gentleman responded, “We have that Hardy Photo by Owen Schmidt here, too, only we call it a one six-pack Tossing water balloons with Governor Myers spoke on a victims’ rights panel and two six-pack brief.” Kulongoski at this year’s picnic.

Fall 2008 7 included Vicki L. Smith, Greg Miner, Steve Brischetto: Binding It All Together Donna Sinclair, and Tom Christ. This By Donna Sinclair committee created a list of potential ince the late 1990s, independent work of the Oral History Project. interviewees that went beyond word of Semployment lawyer Stephen L. With interviewing smoothly under- mouth, identifying individuals such as Brischetto has provided the binding way and the Bernhard Fedde, a Second World War for the U.S. District Court of Oregon’s budget in line, conscientious objector who defended long-term oral history project. After under Steve CO’s during Vietnam and who passed serving on the Oral History Com- Brischet to’s away not long after his interview was mittee for several years, Steve took watchful eye, conducted. office as oral history committee chair the oral his- Steve Brischetto kept the District approximately a decade ago, under tory commit- Court Oral History Program afloat the auspices of Judge Owen Panner. tee then turned during what could have been a difficult During the first half of his service, the to the “new” period. Instead, he rose to the challenge program operated as usual, with most media—video. of possible demise and raised the bar. He recognized the potential for excel- of the work occurring via the Oregon Steve Brischetto Not only did Historical Society (OHS). Judges’ inter- the team insti- lence, not only in the staff who worked views were conducted professionally tute a policy of video recording a ses- with him on this project, but also in his by OHS interviewers, and volunteer sion with each judge, they requested fellow attorneys. His leadership will be attorneys recorded interviews, which funding to return to judges who had missed by many. May the standards of Steve promptly sent to OHS for long- previously been interviewed. This suc- oral history comportment he set carry term preservation. Unfortunately, cessful leg of the project provided a forward into the future with strength due to budget cuts and a changing legacy to accompany the tapes and tran- and vigor! administration, in 2004 the Oregon scripts of Judges Panner, Redden, Sko- Historical Society suspended the Oral pil, Goodwin, Leavy, and Sullivan. History Program. The OHS Research The next major endeavor that took Oral History Update Library continued to accession tapes place on Steve’s watch was an organiz- By Janice Dilg and transcripts, providing a repository ing, indexing, and transcribing project for preservation but it halted all oral that has left the District Court with a ith the departure of Steve Brisch- history program collection. 275-page finding aid to the collection Wetto, Greg Miner has stepped in Rather than allowing the OHS and hundreds of hours of transcripts. as the chair of the U.S. District Court program suspension to disrupt the Interviews with individuals like Helen of Oregon Historical Society Oral His- District Court Oral History Project, Althaus, Kernan Bagley, Velma Jer- tory Committee. Greg is a partner in Steve Brischetto took the initiative to emiah, and Richard Maizels, among Bateman Seidel Miner Blomgren Chellis strengthen the oral history program. many others were transcribed at long & Gram, and has been a member of With the assistance and continued last, often years after the initial record- the oral history committee for several participation of former OHS oral his- ing. The transcription took place with years. Greg’s involvement with the oral torians, Donna Sinclair, Clark Han- financial support from the Attorney history proj- sen, and Michael O’Rourke, several Admissions Fund and with volunteer ect includes judges, magistrates, and attorneys support from innumerable individuals screening nar- were quickly interviewed (Stephen and law firms. For every hour of tape r a t o r s a n d Bloom, John Cooney, Robert Jones, transcribed for pay, another hour-and- doing two vol- Randall Kester, and Malcolm Marsh). a-half was transcribed by volunteers in unteer inter- Those interviews were transcribed, Oregon’s legal community. v i e w s w i t h edited, and bound by a team that also These accomplishments attest to notable mem- included current District Court Oral Steve’s organizational abilities, his abil- bers of Ore- gon’s legal Historian Janice Dilg. When George ity to engender commitment to the proj- Greg Miner Juba, Oregon’s first magistrate judge, ect, and to crack the whip! Steve kept com mu n it y, became ill, the USDCHS was fortunate both the paid crew and the volunteer including attorney and community that Janice was available to interview crew accountable. He organized volun- leader John Schwabe in 2006. Last him. That oral history made possible teers for workshops, then checked in on year, Greg and Don Bowerman teamed a warm farewell for Judge Juba and them regularly about their progress. He up to interview lawyer, and author/his- the experience provided Janice with an assigned research projects to individu- torian of the Clackamas County Bar all-around introduction to the range of als on the oral history committee that Association, George L. Hibbard.

8 U.S. District Court of Oregon Historical Society The other indispensable members of the committee are Vicki L. Smith of USDCOHS Oral History Projects Lane Powell and Mary Ellen Page Farr, a solo practitioner. Among Smith’s The US District Court of Oregon Historical Society Oral History Project other contributions to the work of extends sincere thanks to the following individuals and law firms for the oral history project, she recently dedicating their time and expertise to this worthwhile project. It could not arranged for P.K. Gott to transcribe happen without your good work! the interview of longtime director of the Multnomah County Law Library, Volunteer Oral History Interviews Jackie Jurkins. Gott previously tran- Alice Plymell by Trina Laidlaw; Judge Windsor Calkins by Monica D. scribed an interview with Noreen LaRosa; Selma Denecke by Margaret Lieberan; George Hibbard by Greg Saltveit McGraw. In 1995, Farr inter- Miner and Don Bowerman; Bonnie Mentzer by Heather Vogelsong; and viewed one of Oregon’s pioneering Judge Douglas Spencer by Craig Capon. woman lawyers, Helen Althaus, and she is currently planning an oral his- Sponsored & Volunteer Interview Transcription tory of former U.S. Attorney, Charles Justice Edwin Peterson (Perkins Coie); Selma Denecke (Margaret Lieberan); Turner. Bernard Jolles (Jolles & Bernstein); Hattie Bratzel Kremen, (Susan Glen, Since its inception the USDCHS Dunn Carney); Sidney Lezak (Bronnie Griffin, Newcomb Sabin Schwartz Oral History Project has been a collab- & Landsverk); Charles McCarty (Scarborough McNeese O’Brien & Kilk- orative effort in significant ways. The enny); Noreen Kelly Saltveit McGraw, (Lane Powel); Kristine Olson, (Teresa partnership between the USDCHS and Lovegren, Markowitz Herbold Glade & Mehlhaf); George Rhoten (Rhoten the Oregon Historical Society makes Law Firm); Thomas Cooney (Cooney & Crew) housing the oral history collection pos- sible and offers researchers access to the USDCOHS & AAF Sponsored Interviews and Transcription wealth of Oregon’s legal history encom- Hon. Diarmuid O’Scannlain, in process; Judge Henry Hess, in process; passed in the collection’s more than 180 Judge John Jelderks, in process; Jerry Harris, transcription; Patrick Dooley, interviews. The oral history project is transcription; Carl Burnham, transcription; John Burns, transcription; also the beneficiary of the continued Selma Denecke, transcription; Alice Tomkins Fee, transcription; William financial support of the USDCHS and Hedlund, transcription; Charles Heltzel, transcription; Robert Smith, tran- the Attorney Admissions Fund, which scription; James Weatherford, transcription; and Jack Collins, transcription, contributed approximately $55,000 digital conversion, enhancement and transcription. over the past three years to insure the transcription of more than 90 hours information recorded on them for fif- offered Harmon a cigar at the outset of interviews, some of them recorded teen to twenty years, and some of the of their recording session! many years ago and inaccessible until earliest USDCHS interviews are reach- Finally, one essential component of now. In addition, those funds facilitated ing that mark. One specific case is the the success of the oral history project the indexing of the entire collection, 1984 interview between OHS oral his- is the dedicated volunteers, individu- which amounts to over 200 hours of torian Rick Harmon and the legendary als and law firms, who conduct oral taped interviews. The important work Judge William East, which was found history interviews and transcribe the of documenting the history of the U.S. to be in a deteriorated condition. With recordings—More than 120 hours District Court would not be possible funding from the USDCHS, this valu- of transcription at last count. As a without the ongoing funding provided able history was converted from tape to result of all of these extraordinary by the USDCHS and the AAF for inter- a digital format and the sound quality contributions, the USDCHS oral his- views, transcription, and publication enhanced to allow the transcription tory collection has become a rich and of interviews with members of the of Judge East’s vivid recounting of his valuable resource. The sidebar offers judiciary, as well as the coordination career in the bar and on the bench. well-deserved recognition to the most of that work. Judge East is often mentioned in oral recently conducted interviews and The changes that digital technology history interviews with his colleagues, completed transcriptions. If you would is bringing to many aspects of our lives so it is especially rewarding to recap- like to learn more about becoming a are also transforming audio recordings. ture his insights into the legal history volunteer interviewer or offer tran- Magnetic cassette tapes are becom- he was so much a part of. Those who scription services to the oral history ing rare commodities, and the move knew him would not be surprised to project, please contact Greg Miner at to digital recording is coming soon. learn that he was smoking a cigar [email protected], or Janice Magnetic tapes generally retain the throughout his interview, and even Dilg at [email protected].

Fall 2008 9 The United States District Court His- cowards die a thousand deaths; the torical Society is proud to announce 2008 Lifetime brave just die once.” When he would that Judge Owen Panner is the recipient Service Award get discouraged about a job in law of the 2008 Lifetime Service Award. school or get behind on something, Judge Panner was the subject of an she’d say, “You just take one shovelful oral history conducted by Michael at a time, one at a time, and everything O’Rourke in 1995 and 2005 (housed will come out. If you get confused and at the Oregon Historical Society) forget to take those shovel­fuls, then and is the subject or author of earlier you’ll get in trouble.” Benchmarks articles that can be found at www.USDCHS.org, (Spring 1999, Education and the War Years Fall 2002, Spring 2003, Fall 2005, and Panner started at the University of Winter/Spring 2006). Oklahoma in Norman in 1941. In 1943 he enlisted, hoping to become at wen Murphy Panner came into paratrooper but his eyesight kept him Othe world on July 28, 1924, in from that path. He went through 13 a Chicago hospital. His mother and weeks of basic training at Fort Ben-

father, the former Irene Murphy and Judge Owen Panner ning, Georgia and was then sent to Elmer Newton Panner, lived in Whiz- By Adair Law engineering school in West Virginia bang, Oklahoma at the time. They and then transportation corps officer had lost a previous child and because ing Owen to golf at the age of six. “It training school in New Orleans. He Mrs. Panner required a caesarean, was difficult. I can remember a lot of was later transferred to Los Angeles to they went to a reputable Chicago doc- times I broke down crying. I’d get mad be a pier officer, supervising the load- tor for the procedure. They returned at him, you know. He would just stay ing of troops and cargo on Army troop to Whizbang with their son and then right with it….To this day, and I’ve and cargo ships. He kept applying for moved to Shawnee, Oklahoma two played a lot of golf, I played on the high transfers to the infantry until the Port years later. Two daughters followed, school and college golf teams, won a lot Commander made it clear to him that Marianne and Janet. of tournaments, and I attribute it all to that would not be in his best interests. Elmer N. Panner was among the his determination that I would swing Panner was a second lieutenant and youngest of 11 children. A good ath- the club properly, that I would stay in he made peace with his situation. He lete with “tremendous guts,” his ath- there and fight, not give up.” lived in officers quarters, worked long letic drive took him to the University Irene Murphy was the daughter of hours, and on Sundays he played golf. of Pittsburgh on a scholarship, where Owen Murphy, who emigrated from During the war, private clubs in the Los he got a petroleum engineering/geol- Ireland as a boy and at 12 was driv- Angeles area had an open invitation to ogy degree. His son recalled, “There ing mules to pull barges on the Erie all military officers to play golf, with was no quit in him. He was tough.” Canal. He went on to found the Mur- no greens fees. Elmer married late in life and took up phy Oil Company in Pennsylvania. An infected tooth introduced Pan- golf at the age of 40. He began teach- He had no formal education but grew ner to his future wife, Jackie (Agnes to prominence in the oil business and C. Gilbert), a nurse in Torrence, Cali- became a confidante and friend of fornia. She gave him penicillin shots Andrew Mellon. Panner enjoyed his to calm the infection, and within six mother’s sense of humor. “I remem- weeks, they were married. Their first ber one Thanksgiving, Maudie was son, Owen Murphy Panner, Jr. was bringing the turkey in to dinner and born in December 1946. The couple stumbled or slipped or something, and returned to Oklahoma and continued the turkey went on the floor, and my to pursue their studies. Panner was on mother very cheerfully said, ‘Maudie, a golf scholarship and he played on it’s just a good thing we cooked two the golf team and taught a golf class. turkeys. Just take that one back and get “…when I came back to law school, I the other turkey.’ We didn’t have two just liked law school. I liked the case turkeys.” In later years, when he was method. I liked the discussions we in law school his mother continued to had during class of the cases….I made almost straight A’s through law school. Owen Panner at age 10, courtesy of give him sage advice. Favorite sayings Nancy Panner. included, “Well, remember, Owen, It was a good, challenging time, and

10 U.S. District Court of Oregon Historical Society morning.’ I had done a little research former attorney, Leland Brown, took a on Portland and Eugene. But I got up job as campaign manager for Senator in the morning, and the sky was azure Guy Cordon, who lost re­election to blue. It was October, and it was abso- Senator Richard Neuberger. This put lutely gorgeous. Those big pine trees, the tribes in a bad light with Senator white mountains, already covered with Neuberger, who went on the Interior snow.” Panner was interested. Committee right away. They realized He talked to a few lawyers, and one they didn’t want their lawyer involved told him he could go to work right with any one particular politician; they away. He spent a few days looking at wanted a lawyer who could deal with schools and talking to lawyers about all the politicians. Panner was asked to things in Bend. As part of his due dili- secure a letter of recommendation from gence he went to Redmond, up to The Congressional delegation, the Gover- Dalles, and then down to Portland. nor and the Secretary of the Interior. After the bracing natural beauty of Duncan McKay helped him secure Bend, “I thought Portland was pretty the needed letters. The tribal council drab in 1949. In fact, it was raining called him for an interview. “Every- Owen Panner during military service. down here, and I talked to a couple thing had to be translated from English of law firms, and I thought, ‘Gee, if into Indian, or vice versa. There were I liked it….Also, having a child and a I have to live here, I’m going back to three chiefs on the council and eight wife gave you a little more incentive to Oklahoma.’ But I kept thinking more non-chiefs, elected representatives. It work a little more diligently than when and more about Bend, and I went back was a wonderful group of people. One you were free and loose.” to Bend, and that’s where I decided woman, the rest men. The woman had to land.” a nursing baby that the chairman of Heading West the coun­cil referred to as the Senator. Panner graduated in 1949 and passed Setting Up Practice Every so often he would pause and the bar in Oklahoma. The couple had His family came out and his daughter look over at the newborn baby and a little money, very few debts, and a Kathy was born in January 1950. Pan- say, ‘What do you think about this new car. Jackie and young Owen stayed ner had to wait until July 1950 to take issue, Senator?’” Panner was fortunate with her parents in Long Island, while the bar. In the interim he sold Buicks, to work with tribal members such as Panner took a trip west to see where he Cadillacs, and Chevrolets on straight Vernon Jackson, Olney Patt, and Ken might want to practice law. His travels commission. He loved selling and sold Smith who had a new vision for the took him to New Mexico and Colorado cars to members of the Confederated direction of the tribes. They gave him where he looked at various firms. A Tribes of Warm Springs, who would strong direction. profitable golf game in New Mexico let later become clients. He did work that him extend his trip to Oregon, a state didn’t require admittance to the bar he was curious about. Oregon Federal with his future law partner, Duncan Judge Claude McCulloch, the uncle of McKay. Panner passed the bar and he a law school classmate, would visit his began to make his way. Central Oregon nephew in Oklahoma and rave about Bar meetings were held once a month, the splendors of Eastern Oregon and and it was a collegial bar. “Everybody Panner was curious about the area. recognized that our job was to fight Panner recalled he “came into Bend, ferociously in court, but to remain Oregon about midnight across the friends.” Panner came across various desert. Didn’t see anything but sage- colorful characters in Bend, many of brush….I went up to what appeared whom are mentioned in his oral history. to be the only hotel in town, a little He got involved with First Presbyterian second-floor hotel. I wasn’t looking church in Bend and was scout master for fancy places. I went up, and I think for six or seven years. His daughter the room was three dollars, and when Rene was born in 1953. I registered, she asked me did I want a In 1955 he gained an important new girl, and I realized I’d gotten into the client. Since his days selling cars, he wrong kind of a hotel….I thought, ‘I’ll maintained contact with various mem- get out of this town the first thing in the bers of the Warm Springs tribes. Their

Fall 2008 11 Panner Johnson and Marceau) over Judge Owen Panner continued from page 11 Easter weekend in 1967. He took a look at the offices on a Saturday and His new clients made it clear to Following the July rain storm, 11 met Panner, who was there working him that they were hiring him to keep people who’d lost their businesses or with a colleague. Karnopp took the them out of court. After approval by homes began to look for a lawyer to job, and recalled even then, Panner the Tribal Council and the Secretary sue the state. Several lawyers turned was “renowned as big-time lawyer, of the Interior, Owen Panner became them down, and eventually six came but he was really a nice guy, really the attorney for the Confederated to Owen Panner. He told them he nice to everybody.” Karnopp worked Tribes of Warm Springs. He would thought it was worth a try, that there with him a great deal in later years serve in that capacity for the next was a little-used theory in Oregon and commented that Owen Panner 25 years and in his work with the called inverse condemnation; when had a talent for guidance, and that tribes, they were able to reacquire the State did something causing the he’d had more influence on him than the land that contained what is now loss of property and didn’t do it by any man not a family member. The known as Kahneeta Hot Springs as eminent domain, the effect was that firm (which would later become Kar- well as the McQuinn Strip. He was the property owners were entitled to nopp Petersen) seemed like a big town also instrumental in the development recover from the State. Roy Kilpatrick, practice in a small town and much of of their timber industry (Warm Spring a lawyer from John Day had picked that was Panner’s doing. Since arriv- Forest Products) and in the contract up several of the cases as well. Pan- ing in Bend, Panner had cultivated and negotiations for the Pelton and Round ner and Kilpatick decided to combine maintained a range of clients, devel- Butte Dams. them all and try a few cases first, in oped the business and estate planning hopes of settling the rest of them. practice, and had gained renown as A New Era Three cases were tried before a jury a trial lawyer. In 1973, he was asked The event that moved Panner’s legal and they won them all, ultimately set- to join the American College of Trial career into a new era occurred on July tling the rest. It became well known Lawyers and was chosen as Trial 13, 1956. Eight inches of rain fell in throughout Eastern Oregon and Lawyer of the year. In December 20 minutes in a canyon up above the involved a good fee. The state’s lawyer 1979, Democratic Congressman Al town of Mitchell in Wheeler County. would later refer to the new McKay Ullman put the Republican Panner’s The Highway Department had built Panner law offices as the “house that name forward as a nominee for the a fill and a highway through Bridge the state engineers bought.” Federal Bench U.S. District of Oregon Creek, across from Mitch­ell. While Panner’s work gained notice to President Jimmy Carter. Owen they were building it, the citizens of throughout the state and the coun- Panner became Judge Owen Panner, Mitchell told the Highway Depart- try. He was active in the Oregon State along with Judges James Redden and ment that the construction would Bar and was a perennial winner of the Helen Frye on March 20, 1980. flood them out because they were golf tournament for many years. He Leaving Bend was difficult, but restricting the channel too severely. was a member of the board of gover- there were certainly new challenges nors and served as the Oregon State in Portland. There were only six Bar vice president in 1963. In 1961 he judges at that time, including senior was asked by Mo Udall to service as judges. The judges circulated each commissioner for the Bureau of Indian of their individual opinions to all Affairs. He thought it over and said of the judges for their reviews and no. He developed his leisure activities comment. Panner recalled, “We had as well. In 1968, he began to take a the benefit of Judge [Gus] Solomon’s serious interest in raising Arabian very meticulous writing style. He was horses. He cared for his first horse at very wonderful at pointing out how the age of 11, “a little mustang, hot- to shorten things up, simplify them. ter than a pistol,” named Scooter and He didn’t like ‘purple prose’ as he horses had been a part of his life ever said. He liked direct, straightforward since. He went on to serve as presi- sentences, which was wonderful.” dent of the Arabian Horse-Breeders Judge Panner had enjoyed trying cases Association. before Judge Solomon as an attorney Attorney Dennis Karnopp recalled and he enjoyed being an associate of his on the court. Panner (left) and Ken Smith at celebra- coming to Bend to interview at the tion for recovery of McQuinn Strip. firm (which was then called McKay Judge Panner developed his own

12 U.S. District Court of Oregon Historical Society Warm Springs members and U.S. Rep Judges Owen Panner, James Redden Judge Owen and Nancy Panner. Al Ullman on a fishing trip. and Helen Frye. reputation for the efficient dispatch of as you can, and you can’t conclude James Burns. Judge Panner succeeded cases, which led some court report- what’s right under the law, then you Judge Burns as chair of the Society ers to refer to him privately as Gus Jr. come down on the side of God. And and the Society has been fortunate to From 1984-91 Judge Panner served if the Circuit then reverses you, you’ll enjoy his time, intelligence, and good as Chief Judge. Judge Panner went on know where they stand.’” humor over the past 25 years. Judge senior status in 1992 and in 2006, In recent years, Judge Panner has Panner and his wife Nancy, who he moved down to Medford to serve as received attention for his declaration married in 1989, kindly shared their the first Article III judge permanently that federal sentencing guidelines are Portland-area ranch for the Society’s working in the area. unconstitutional in US v. Detwiler, annual picnic for many years. And it During a 1998 interview, Judge 2004 WL 2244532 (D. Or. Oct. 5, is hard to list the many golf-related Panner commented that so far, three 2004). It’s hard not to think of Judge activities that have been a part of of his cases had gone to the Supreme Solomon’s advice when reading the his life. Court: NW Wholesale Stationers v. following straightforward, eloquent After the institution of the Lifetime Pac. Stationery, 472 U.S. 284 (1985), passage from that opinion. “For too Service Award, Judge Panner made Whitley v. Albers 475 U.S. 312, long, the Judicial Branch has remained it very clear he didn’t think judges 106 S.Ct. 1078 (U.S.Or.,1986), and silent in the face of repeated encroach- should receive it. It is never wise to go Department of Revenue of Oregon v. ments by the other two Branches. Like against a judge’s wishes, but it would ACF Industries, Inc. 510 U.S. 332, frogs in a simmering pot, we adjust to be foolish not to tell a true friend what 114 S.Ct. 843 (U.S.Or.,1994). He had the new temperature, and complain they’ve meant to you over the years. been affirmed all three times. Since among ourselves that it seems a tad Judge Panner, we thank you for your 1998, three more cases went to the warm, but then accept the new order care, friendship, and service over the Supreme Court: Albertson’s, Inc. v. of things, to repeat that process anew last 25 years. Kirkingburg, 527 U.S. 555, 119 S. after the next encroachment.” Ct. 2162 (1999); Clackamas Gastro- Throughout his career, Judge Pan- enterology Associates, P. C. v. Wells ner has been very involved in a range 538 U.S. 440, 123 S.Ct. 1673 (2003); of civic activities. As a young attor- and Weyerhaeuser Co. v. Ross-Sim- ney, Dennis Karnopp watched and mons Hardwood Lumber Co., Inc. followed his example of civic engage- 127 S.Ct. 1069 (2007). Judge Panner ment, commenting, “I thought it was was reversed in Weyerhaeuser and just something you were supposed Clackamas Gastro. to do.” Judge Panner served as an Judge Panner enjoyed recalling a elder in the Presbyterian Church, a saying of Judge Solomon’s. “One of member of the board of directors of the things I remember that he told me the Oregon Historical Society, and a when I came on the court: ‘Owen,’ lifetime trustee for Lewis and Clark he said, ‘You study the law just as College. In 1983, he took part in the hard as you can. You try to decide first organizational meeting for the the case in accordance with the law. U.S. District Court of Oregon His- If you’ve studied the law just as hard torical Society at the home of Judge Judge Panner golfing in Ireland.

Fall 2008 13 On Ou r Me m b e r s ’ Boo k s h e l v e s Kafka Comes To America: Fighting For Justice In The War On Terror,

A Public Defender’s Inside Account by Stepehn T. Wax Review by Mary Ellen Page Farr

In Kafka Comes To Amer- Hamad has ever committed a crime or Despite being given almost unfettered ica, Steven Wax, Oregon’s acted against the United States. access to Mayfield’s privacy, the FBI federal public defender Although the narrative style of mov- later admitted that the government since 1983, chronicles two ing from one case to the other can be turned up no real evidence to link cases which arose from the a little confusing, it’s an effective style him to the Madrid bombing. None- American government’s war on ter- for pointing out the striking differ- theless, the FBI continued to focus ror. Anyone who has questions about ences in how criminal justice can be on Mayfield. how that war has been waged should administered. Describing Mayfield’s At the conclusion of Wax’s discus- read the book. Wax begins and ends case, Wax expresses real respect for sion of Mayfield’s case, he points out with the premise that all Americans the federal judiciary in Oregon, par- the number of questions that remain. have a rational need to assure their ticularly Judges Anna Brown, Robert Wax suggests that the federal govern- own security. He then discusses how Jones, and Ann Aiken, all of whom he ment misused the material witness that rational need, if transformed describes as courageously and fairly law to take Mayfield into custody into unreasonable fear, can be used making decisions of great significance and used his being in custody to to undermine the basic institutions of to both the criminal defendants and build a case against him when the American law: the United States. Wax also presents government did not have sufficient As has happened periodically the federal prosecutors as intelligent evidence to have probable cause to throughout history, the tension and honest public servants. He dis- arrest Mayfield. Other than Wax’s between security and freedom is once cusses how the court and prosecutors private lawsuit against the govern- again starkly visible. Bombs explode cooperated to assure that Mayfield’s ment and the threat of other such law- and people die. We feel real fear....Then clients were impacted as little as pos- suits, Wax does not suggest any way we wonder, What should we do about sible, telling of Mayfield being given in which the federal government can bombs and the fear? Are the terrorists a conference room in Judge Jones’s be stopped from misusing that statute criminals who should be dealt with chambers to work on his client files in the future. Wax also points out that through prosecution and imprison- while he was incarcerated. the government’s explanation of how ment? Or are they soldiers in a war that Wax is certainly very critical of the the federal agents erred in identifying should be fought with no rules? actions of the federal investigators in a fingerprint in Madrid as Mayfield’s Wax’s book interweaves his narrative Mayfield’s case. His descriptions of the is contrary to the actual facts of the about the two cases in which he acted legal intrusions into Mayfield’s home case. Wax does not explain (and the as a federal defender to suggest answers with almost no basis other than his reader is left wondering and some- to these questions. He opens his book Muslim faith and his representation what disturbed over) how the expert with the case of Brandon Mayfield, the of Jeffery Battles, one of the so-called hired to assist the defense also mis- Portland attorney who was incarcer- Portland Seven, are truly disturbing. takenly identified the fingerprint as ated and held as a material witness in a Federal investigators were able to Mayfield’s. terrorist bombing in Madrid, based on enter the home for “sneak-and-peak” The surreal quality of Mayfield’s a faulty identification of a fingerprint. searches, including making copies of case becomes as clear as crystal when Wax then discusses cases in which he the family’s hard drives, collecting juxtaposed with the lingering situa- and the federal defenders office were DNA samples, and potentially confi- tion of the Guantanamo Bay detain- appointed to represent Guantanamo dential conversations between family ees. According to Wax’s discussion Bay detainees, in particular one Adel members. Wax describes how innocent of the treatment of those men, the Hamad, a Sudanese hospital adminis- browsing of web sites and collection of government’s actions resulted from a trator who was picked up as a terrorist other innocent materials can be given a mixture of stubbornness and incom- in Pakistan and who ultimately spent sinister description, particularly under petence. There are real heroes in this over five years in Guantanamo Bay, the potential threat of prosecution for part of the narrative as well, includ- despite the paucity of any evidence that a crime carrying the death penalty. ing, of course, the lawyers who have

14 U.S. District Court of Oregon Historical Society worked for years toward attaining in Pakistan and Afghanistan before ture, but in making Americans dis- justice for these men, as well as the being sent to Guantanamo Bay. He trust their government. For example, military officers who have refused was treated harshly and probably tor- Wax provides an intelligent discus- to accept procedures which were tured at each of these places. Hamad sion of Portland’s withdrawal from inadequate. The arbitrariness of won Wax and his team over, however, the Joint Terrorism Task Force in the our government’s actions appears with the resiliency of his spirit and face of the Mayfield case and other in Wax’s description of an inmate his enduring sense of humor. Wax’s federal excesses. named Al Ginco, a Syrian Kurd discussion of Hamad’s case not only Wax appears optimistic about who was conscripted by the Taliban shows the unfairness to Hamad, but crime and punishment in America. in Afghanistan in 2000. Al Ginco also points up the consequences of the He notes that there are still very few did not get along with the Taliban detentions to the families and friends countries which would appoint and who imprisoned and tortured him of the detainees, as well as how these pay an attorney to defend alleged ter- as an American and Israeli (he was detentions have affected relation- rorists and which would tolerate that neither), crimes to which he read- ships between America and other lawyer challenging the highest pow- ily confessed (along with others) countries. It is another twist of irony ers in the country. However, the title under torture. After the Taliban that as Hamad got closer to release, of Wax’s last chapter is telling: “The were defeated, the Americans dis- the American government indicated Fight For Freedom Is Never Won.” As covered Al Ginco’s “confessions” it would not release him to return to Wax’s book makes clear, there will and sent him to Guantanamo Bay, Sudan because the government was always be external enemies confront- in a truly cruel twist of irony. By the concerned he might be tortured by ing America, and there will always time Wax’s group was appointed Sudan. It was only after the Sudanese be internal forces pressing against to defend Al Ginco, he had been government gave sufficient assurances legal protections for the individual incarcerated (by one side or the that the United States withdrew that in favor of enhanced power in the other) longer than anyone else at roadblock, only to raise another imped- executive branches of government. Guantanamo. iment to Hamad’s release. The ultimate result of those con- Wax describes Adel Hamad and Wax also points out the effect that flicting forces will come only from his family in detail. Hamad him- America’s actions have had within the the American people and what they self was captured and incarcerated United States, not only in coarsening demand of their leaders. Americans to the consequences of tor-

Former Justice Sandra Day O’Connor Visits Lewis and Clark Law School By Jen Coates Conroy n September 19, 2008 former 1952 and I looked at the school’s bul- OSupreme Court Justice Sandra letin boards.” She noted that she’d Day O’Connor spoke at a Q&A ses- had trouble getting a job because sion for students at Lewis and Clark she was a woman. Through a friend Law School. whose father was a partner at a law The question of “What went into firm, she was able to set up a meet- the decision on Bush v. Gore?” was ing. After a short interview with her foremost in the minds of those at the friend’s father, she received a job offer session. I spoke with several students as a legal secretary–which she didn’t and found out they were all quite accept. She knew that the Arizona interested in her response to that ques- Justice Sandra Day O’Connor. Photo District Attorney’s Office had hired courtesy of Lewis and Clark Law School. tion and its implications, but they felt a woman attorney, so she went there. that she wasn’t going to address it. ask me what I think the current court Unfortunately, they had room for Justice O’Connor was quite ada- should do.” seven deputies—she would have been mant about not answering any ques- The first official question was number eight. However, she decided tions regarding her decision-making “What sort of advice can you give to to volunteer until they hired her. process. She stated, “I’m no longer those who are completing law school Justice O’Connor recalled the on the Court, so don’t ask me why and are looking for jobs?” Supreme Court of 1981, how evenly I made the decisions I have made in Without a pause, Justice O’Connor divided it was, and how she was the my career and whatever you do, don’t said, “I graduated from Stanford in Continue on page 16

Fall 2008 15 Officers: Hon. Ancer Haggerty, Board Chairman, Justice Sandra Day O’Connor continued from page 15 Ex-Officio; *Kerry Shepherd, President; *Karen E. Saul, Vice President, *David A. Landrum, Treasurer; deciding vote. And, how before that, while she was in the State Senate there Kari Furnanz, Corporate/Executive Secretary; *Jenifer Johnston, Immediate Past President was a lot of “you help me, I’ll help you,” But, how that didn’t exist in any 2008 Board members: *Michelle E. Barton; of the decisions that were made in the Court. *Stephen L. Brischetto; Hon. Trish M. Brown; *Marc M. Carlton; *Jennifer Coates Conroy; Hon. Paul One questioner asked about a New York Times article that had been De Muniz, Ex-Officio; *Janice Dilg; *J. Matthew Donohue, *Mary Ellen Page Farr; *Hon. Dennis J. published the day before (“U.S. Court is Now Guiding Fewer Nations” by Hubel, *Matthew J. Kalmanson; *Adair Law, *Leah Adam Liptak) Justice O’Connor responded, “I don’t think other nations C. Lively; Jeffrey S. Love; *Gregory J. Miner; Emily M. Nazarov; *David Rees, *Kathryn P. Roberts; are using fewer United States decisions in their analysis because of their *Bruce A. Rubin; *Carra L. Sahler; *Linda Sherry, lack of confidence in our decision-making abilities, but more because they *Vicki L. Smith; *John W. Stephens; *Justin M. Thorp; *Shannon Marie Vincent; Dr. George L. Vogt, now have their own Bill of Rights—Bills of Rights, adopted from the United Ex-Officio; *Cody M. Weston; Richard S. Yugler, States. They don’t need to look here because they now have their own set Ex-Officio *Executive Committee members 2008 HONORARY members: The Belloni Family, of precedence.” Unlike the conclusion of the New York Times article, she Ernest Bonyhadi, *Hon. Anna J. Brown; Helen Burns; believes they’re not using American decisions in their analysis because they George Fraser; Randall Kester, *Hon. Edward Leavy; Katherine O’Neil, Hon. Owen Panner, Hon. James don’t need to anymore, not because of lack of confidence in America. Redden, Richard B. Solomon, Norm Wiener. Another student asked about citing foreign decisions. Her response was 2008 Lifetime Members: Jeffery Batchelor, Frank Bauman, Owen Blank, Hon. Anna J. Brown; Helen simply, “Why not read them? Foreign decisions are, of course, not binding, Burns, Donald Cinnamond, Paul Fortino, George buy why not read them?” Fraser, Edwin Harnden, Cynthia Harrison, Douglas Houser, John Jaqua, Hon. Robert Jones, Randall Kes- Before the end of the session, Justice O’Connor was asked what was the ter, James Knoll, Hon. Edward Leavy, James S. Leigh, Nancy Moriarty, Jeffrey Mutnick, Elisabeth New- most difficult decision she made and she said, “It was a federal income tax comb, Verne Newcomb, Daniel O’Leary, Hon. Owen case and that luckily, it was also a unanimous one as well.” It was difficult M. Panner, Hon. Edwin Peterson, Dian Rubanoff, Sarah Ryan, Thomas Sand, Arlene Schnitzer, John because “it took all of recess for everyone to decide on that case—waiting Schwabe, Norman Sepenuk, Arden Shenker, Richard for a response from the other Justices on my opinion was unlike any other Solomon, Gayle Troutwine, Heather Van Meter, Donald Wilson, Kelly Zusman decision. Normally, it takes days, not weeks.” 2008 In Memoriam: Hon. Robert Belloni, Hon. James Burns, Raymond Conboy, George Dysart, Wayne Hilliard, Chester McCarty, and Frank Pozzi

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740 U. S. Courthouse Courthouse S. U. 740

of Oregon Historical Society Historical Oregon of The U. S. District Court Court District S. U. The

16 U.S. District Court of Oregon Historical Society