June/July/Aug. 2020 www.federalbarcouncil.org Vol. XXVII, No. 4

In This Issue:

From the Editor...... 2 Bennette D. Kramer recently spoke with Sheila S. Boston, the newly inducted president of the Association of the Bar of the City of , about some of her goals as president of the City Bar and her view of the current pandemic of racism, the antiracism movement, and a range of other topics.

Personal Reflections...... 6 In one of the longest and most in-depth articles ever to appear in the Federal Bar Council Quarterly, Pete Eikenberry and Anna Stowe DeNicola celebrate Judge Robert Katzmann’s tenure as Chief Judge of the Second Circuit. Speaking with more than 20 judges, court staff members, and law school deans, the not-to-be-missed article, “The Remarkable Seven-Year Tenure of Chief Judge Robert Katzmann,” reflects on Judge Katzmann’s background, judicial career, and involvements before and during his tenure as chief judge.

From the Bench...... 20 The newest member of the Board of Editors of the Federal Bar Council Quarterly, U.S. Magistrate Judge Sarah L. Cave, is the author of the next article in this issue, “The Impact of COVID-19 on Federal Court Proceedings.” Here, Magistrate Judge Cave discusses how the COVID-19 pandemic has affected federal court litigation in the Second Circuit and how the courts in the Second Circuit have responded.

In the Courts...... 25 U.S. Magistrate Judge Lisa Margaret Smith writes about U.S. District Judge Philip M. Halpern of the Southern District of New York, who was confirmed by the U.S. Senate on February 12, 2020 and who was sworn in, quietly, on March 10, 2020 by Chief Judge Colleen McMahon.

Legal History...... 26 In his new legal history article for the Federal Bar Council Quarterly, entitled, “The Most Publicized Trial in History, and the Case with Perhaps the Most Legal Errors,” C. Evan Stewart reviews the trial of O.J. Simpson, which took place 25 years ago. He discusses errors by the prosecution and the trial judge, as well as the evidence of Simpson’s guilt.

The Interview...... 32 Joseph J. Ellis is a historian and author of books on the American Revolutionary era. This article results from a conversation Ellis had recently with Joseph A. Marutollo for the Federal Bar Council Quarterly about Ellis’ scholarship, his writing, and his insights for lawyers.

We invite you to connect with us on LinkedIn. Federal Bar Council Quarterly June/July/Aug. 2020 2

From the Editor president of the City Bar and her to as many people as she can and view of the current pandemic of appearing on as many panels as A Chat with Sheila racism, the antiracism movement, possible to discuss the issues. and a range of other topics. Sheila is heartened because Boston, the New City It is my personal opinion, the marches look different Bar President shared by many, I believe, that from earlier marches and Sheila has become president demonstrations. The marchers By Bennette D. Kramer of the City Bar at a time she is are much more racially diverse desperately needed. Sheila has and younger, and broad coalitions long been an active proponent of appear to be building bridges for diversity in law school, her law future progress. The country is firm, and in the legal community, at a crossroads facing the truth including the Federal Bar and consequences of the violence Council. She is a woman of against people of color. The color stepping in to lead a major diverse group of marchers and bar association at a time that the other supporters are horrified by country is in urgent need of real black people getting killed or diversity, understanding, and targeted, and there appears to be sharing of goals to ameliorate a different momentum now. It a racial divide that is separating was necessary for a cataclysmic On June 6, shortly after the the country. Her mere presence event like the murder of George beginning of the demonstrations at the helm of the City Bar will Floyd to occur for people to protesting the death of George send a strong signal and create come together and coalesce in Floyd, I spoke to Sheila S. the image necessary to influence an organized manner. People are Boston, the newly inducted people’s acceptance of diversity. risking their health to take to the president of the Association of streets in a health pandemic. the Bar of the City of New York. The Pandemic of Racism Sheila said that she is Sheila is the first woman of color talking with different people to become president of the City Sheila said that she is trying and organizations. She is trying Bar. She has long been active to be positive during this difficult to listen and collect information in the Federal Bar Council and time. The coronavirus pandemic from many different voices. has been hard for her and her As a lawyer, she looks at currently serves as chairperson family. She has lost friends and policies and regulations and of the Federal Bar Council board. family members. However, she collects information to develop She also has served as treasurer sees a ray of hope in the honest best practices for her firm, and vice president of the Federal discourse that is arising from organizations, and her church. Bar Council and as treasurer of the demonstrations and the She has ideas but values the need the Federal Bar Foundation, the movement. We need open and to talk and learn from others. 501(c)(3) corporation founded honest discussions during this As president of the City Bar, in 1964 that funds many of the pandemic of racism. She said Sheila has set goals in connection Council’s activities. Sheila was that people of color will not keep with criminal justice and social president of the Council’s Inn suffering in silence, experiencing justice. She sees the need for of Court in 2014-2015. She is racism and abuse, and that people police reform and to address a partner at Arnold & Porter can no longer deny the racism and law enforcement issues, but Kaye Scholer LLP. Sheila and I police violence against people of at the same time to encourage talked about some of her goals as color. Sheila said that she is talking good officers and get them to 3 June/July/Aug. 2020 Federal Bar Council Quarterly participate in this endeavor. She • Mental health and wellness; mass incarceration. Nonetheless, has police officers in her family • Access to justice; it is an important issue. There is and knows that reform is needed. so much evidence for the need • Diversity, equity, and Her son is a corrections officer, for reform. She said that our inclusion; and her husband is a former state legal community has some of the police officer. • Criminal justice reform; and finest minds and should be able • Protection of the rule of law. to address the subject in a logical Initiatives and effective way. Sheila said that she spent the When Sheila was first nominated, she did not accept it In her speech as she was shortest time on criminal justice right away. She is the mother of inducted as president of the City reform in her speech because she young adults and has obligations Bar, Sheila outlined six categories did not believe she had to say to them. They need her as they of initiatives that she wants to too much about it. She did not begin their careers and choose pursue during her term: want to insult the intelligence of life partners. She also has a busy her audience because there have practice, is in the middle of her • COVID-19 recovery; been so many statistics about career, and is involved in several different bar associations. She talked, prayed, and thought. She spoke to her family and they agreed, particularly her brother with whom she shares care of her mother. Everyone was supportive, including management at her law firm, and agreed that accepting the nomination was what she should do. Sheila has a long commitment to justice and the rule of law, including racial equality. So, she accepted. Sheila told the story of her attendance at the living former presidents’ dinner, which took place after she accepted the nomination but before she was inducted. She walked into the City Bar’s main hall. She was used to being greeted by staff who know her, but there was a young man sitting there who looked new. When she approached him, he said that there was not much going on that evening. She said that she was there for the presidents’ dinner. He looked puzzled. Then, Shelia Boston a dear friend who was part of the Federal Bar Council Quarterly June/July/Aug. 2020 4

City Bar security team told the was a complicated and convoluted of women partners. The white young man that Sheila belonged moment of intersectionality. female interviewer from Kaye in the room with the presidents. Sheila reiterated that imagery Scholer – unlike other interviewers It had never occurred to the and representation are important – was not caught off guard or young man who was a person of and impact both the way we see embarrassed at all. In fact, she was color himself that a black woman ourselves and how the world fantastic. She gave good answers belonged in the room. Sheila said sees us. When a great lawyer is to Sheila and said she wanted that this incident shows us why described, the image of a white to work with Sheila to improve imagery and representation are so male typically appears. This is in diversity at Kaye Scholer. important. People tend to think that a world where so many women As a mid-level associate at a president must be a white male. and people of colorare doing Kaye Scholer, Sheila established But now there is a generation, who wonderful things. The imagery the first diversity committee, when when they imagine a president, must change. those committees were rare. Her initially only knew Obama, which mentor in that endeavor was Jim creates a changing imagery and Sandman from Arnold & Porter – representation. It is the media’s an interesting coincidence as the responsibility to assist by using looms two firms eventually combined. images of people of color who have large as one of the reasons Sheila He helped her to encourage power and who are professionals. wanted to go into law. When her firm to establish a diversity The young man apologized when she went to law school, she committee. She wrote a memo he found out that Sheila was the saw herself as a public interest to the law firm leader to explain next president of the City Bar. lawyer. She applied for a public the “black tax concept,” which is Sheila then went into the room interest scholarship at New York that there are extra pressures on where the dinner was held. She University School of Law. She attorneys of color to assist more was a few minutes late. The room got into the law school but did junior attorneys of color and too was mostly full of white men, not get the scholarship, so she often the onus is placed solely although Roger J. Maldonado, went to Columbia Law School on attorneys of color. A diversity the prior president, is Latino. instead. committee, however, could The only two women former Back then, Columbia tended enlist non-diverse attorneys to presidents who were present to encourage its students to go into help shoulder the burden. Yet, were seated very far away. It was big law. At Columbia, Sheila took management has to buy in to a very formal occasion and they a course taught by David Leebron make any program successful, were using the special chinaware. in torts and product liability, and Sheila succeeded (with the Filled with anxiety and doubt, which caught her interest because support of two to three other Sheila, who usually gets along it fused law and medicine. She individuals) in convincing the with everyone and is no shrinking went to the professor and told him Kaye Scholer management to violet, asked herself if she really she wanted to do complex product create a diversity committee. belonged in the room. She sat liability work. He helped her put down beside Louis A. Craco, who together a list of the top firms for The Rule of Law reached over and put his hand on complex product liability cases hers and said he was very excited in New York, including Kaye The protection of the rule of and proud of her and that she was Scholer. When she was with the law is very important to Sheila. going to do a great job. He asked Kaye Scholer interviewer on She believes that when you have a her to please be sure to be herself campus, Sheila asked questions law degree you are obligated to use – to be authentic. At that moment, about diversity, the number of it to advance the rule of law and the doubt and anxiety left her. It partners of color, and the number access to justice. The public must 5 June/July/Aug. 2020 Federal Bar Council Quarterly have confidence in the fairness of psychological and emotional and breathe to help to calm and of the system and the principled trauma. Putting racism aside, the control reactions. During the application of the rule of law. health pandemic has been brutal, racism and health pandemics, Lawyers have a responsibility but it is necessary to keep things Sheila has had to limit news on to explain the rule of law and to in perspective. the television and reading on her create transparency. A fan of John For example, in some phone in order to get away from it Rawls’ “A Theory of Justice,” she instances it is a privileged all to be productive and efficient. believes that the minimum level problem to have complaints The legal profession is filled of justice that everyone should about having to shelter in place with stress, but lawyers believe have under the social contract (that is, people with a roof over they can handle everything. There is decent medical care, access their heads are fortunate), but it is a high incidence of addiction to education, and access to the does have a debilitating effect and mental health problems in the justice system. We need to have on mental wellbeing. People legal profession. As lawyers we a more level playing field. The feel isolated because they are need to pay attention to mental social contract should ensure that not going to work and being health. A new City Bar report everyone gets opportunities and with people. On top of that is the recommends adding a mental has a chance to thrive. There is too trauma of losing people. Sheila health/wellness contining legal much unrealized potential talent has learned the importance of education requirement. Lawyers and spirit that we need to cultivate. wellness and taking care of need to evaluate themselves to Our society is only as strong as its herself. She meditates every make sure they are okay. It is weakest link. day with a mantra and positive okay to be vulnerable and to have Sheila also wants to focus on affirmation. She noted that she therapy. It is okay to take time out wellness and mental health. She is always had a positive quote on for yourself. learning about it and also looking a white board in her office at her I wish Sheila the best in her at it in terms of a racial justice law firm: “I can’t but we can.” It journey as president of the City analysis. During the COVID-19 is important to reach out to others Bar. From many years of working pandemic there has been a lot and rely on others; to meditate with her on Federal Bar Council

Editors

Managing Editor Editor-in-Chief Founder Steven A. Meyerowitz Bennette D. Kramer Steven M. Edwards

Board of Editors Marjorie E. Berman Steven Flanders Travis J. Mock James L. Bernard James I. Glasser Stephen L. Ratner Hon. Sarah L. Cave Steven H. Holinstat Hon. Lisa Margaret Smith Brian M. Feldman Molly Guptill Manning C. Evan Stewart Peter G. Eikenberry Joseph A. Marutollo

Federal Bar Council Quarterly (ISSN 1075-8534) is published quarterly (Sept./Oct./Nov., Dec./Jan./Feb., Mar./Apr./May, Jun./Jul./Aug.) by the Federal Bar Council, 150 Broadway, Suite 505, New York, NY 10038-4300, (646) 736-6163, [email protected], and is available free of charge at the Council’s Web site, federalbarcouncil.org, by clicking on “Publications.” Copyright 2020 by Federal Bar Council. All rights reserved. This publication is designed to provide accurate and authoritative information but neither the publisher nor the editors are engaged in rendering advice in this publication. If such expert assistance is required, the services of a competent professional should be sought. The articles and columns reflect only the present considerations and views of the authors and do not necessarily reflect those of the firms or organizations with which they are affiliated, any of the former or present clients of the authors or their firms or organizations, or the editors or publisher. Federal Bar Council Quarterly June/July/Aug. 2020 6 programs, I know that she has the legal community like a Bar Council fall retreat. I asked intelligence, determination, and supernova! Judge Sidney Stein if he knew drive to accomplish her goals. I of a Second Circuit judge who cannot think of anyone who is – Lawyer would agree to be a part of our better situated to take the City David M. Brodsky faculty at the retreat. Judge Stein Bar through these perilous times. found us our first Circuit Court Although Judge Robert faculty member, Judge Katzmann. Katzmann was born and raised in From the podium at the retreat, New York City – a product of its the Judge spoke of “the moral role Personal Reflections public schools and a commuting of a lawyer,” a subject I had done student at Columbia College some thinking and writing about. The Remarkable – his career was largely spent After the retreat, he sent me a in Washington, D.C. A well- copy of his book, “The Law Firm Seven-Year Tenure of regarded academic and scholar and the Public Good.” In it, he Chief Judge Robert of judicial administration and the writes that: Katzmann relationship between courts and Congress, a chaired professor The lawyer’s function is By Pete Eikenberry and Anna at Georgetown and a Fellow of grounded in role morality, the Stowe DeNicola the Brookings Institution, he idea that special obligations was a Washington insider of attach to certain roles – in this sorts, including serving as pro case to render justice…. A bono counsel to Senator Daniel lawyer’s duty to serve those Patrick Moynihan and Ruth unable to pay is thus not an Bader Ginsburg on the latter’s act of charity or benevolence, Supreme Court confirmation but rather one of professional process. Confirmed by voice vote responsibility, reinforced by of the U.S. Senate, following a the terms under which the “well-qualified” rating by the state has granted to the pro- , he fession effective control of virtually tip-toed back into his the legal system. hometown of New York City after being appointed to the Upon reading his book Circuit in 1999. As we celebrate concerning the obligation of Judge Katzmann’s tenure as law firms to undertake pro bono Second Circuit Chief Judge, work, I invited him to speak it is illuminating to reflect on at the annual Marden Lecture his background, on his judicial at the New York City Bar. My career, and on his involvements former boss, Orison Marden, had before he became chief judge in been an advocate throughout his 2013, as they are instructive as career for greater representation to his values and approaches as of indigent persons. chief judge. As a representative of Where did this guy come In 2002, the New York the Orison Marden Lecture from? No one had ever Federal Bar Council Committee Committee, I proposed the heard of him, and then he on Second Circuit Courts was Judge as a speaker, but the City burst upon the New York working to establish its Federal Bar leaders were concerned. 7 June/July/Aug. 2020 Federal Bar Council Quarterly

Judge Katzmann Federal Bar Council Quarterly June/July/Aug. 2020 8

They said that, although “Judge by study group participation, the the Fordham University School Katzmann is a nice man, he will members have been catalysts of Law, and his books include not draw a crowd.” Two or three in the formation of an array of “The Law Firm and the Public weeks before the lecture, Judge not-for-profit and governmental Good,” “Institutional Disability,” Katzmann emailed me to say that, entities dedicated to providing “Regulatory Bureaucracy,” “he was working hard” and that immigrant litigants with first “Courts and Congress,” and the “he did not want to let me down.” class legal representation. seminal “Judging Statutes.” The evening of the lecture, the hall As the more than 20 judges, was full. As the Judge spoke, the court staff members, and law 1999 to 2013: Growth of crowd was in rapt attention, drawn school deans who were willing Stature Among the Judges of by his exquisite presentation of and eager to be interviewed by New York, Connecticut, and the facts supporting the need, us affirmed, the concept that all Vermont the power of his ideas, and the of us in the legal community are strength of his convictions. empowered and obligated “to Collegiality, Consensus His Marden Lecture was a render justice” is at the moral Building, and Mentoring clarion call to the legal community core of the Judge’s every action. to address a dire problem which As will be apparent from the he saw every day: the unmet legal Judge Katzmann’s following statements of his fellow needs of immigrants. That lecture Background, Education, and judges, Judge Katzmann quite galvanized that community Publications naturally integrated himself into to action and has led to an the Circuit’s legal community. extraordinary range of activities Judge Katzmann grew up in Judge Pierre Leval reported that have substantially improved Queens, received his Bachelor’s on an early sitting of Judge the quality and increased the degree from Katzmann’s after appointment to quantity of legal representation in 1973; his Masters and a Ph.D. the Court as follows: of the immigrant poor. As former in political science from Harvard Eastern District of New York in 1978; and his J.D. from the He was remarkable. He had Chief Judge said in 1980. The neither experience as a judge to us recently, “His sincerity in Judge has taught at Georgetown nor as a practicing lawyer. He pursuit of justice, the welfare of as the Walsh Professor of had to pick all that up with the Court, the people in it, and Government, Professor of Law, on the job training. On that humanity is an awesome force.” and Professor of Public Policy, early sitting, we were in great Following the Marden and for several years has taught disagreement on a particular Lecture, he arranged for his talk to at School issue. I was in dissent and be published in the “Georgetown of Law. His writings span the he was in the majority, writ- Journal on Ethics” and for several breadth of regulation, judicial- ing the opinion. I asked for a lawyers and professors to write as congressional relations, disability rehearing en banc. Although well on the need for immigrant legislation, administrative the Court determined not to representation. A year after the processes, court reform, and war proceed en banc, and he did lecture, I volunteered to assist the powers resolutions. He delivered not have to do so, he modified Judge in putting a study group the James Madison Lecture at his original opinion so it no together involving judges, private New York University’s School longer concerned the issue on litigators from the immigration of Law, the Orison Marden which we had disagreed but bar, professors, law firm senior Lecture at the New York City Bar one which the whole panel partners, and other interested Association, and the Robert L. agreed was the correctly rea- parties in the effort. Motivated Levine Distinguished Lecture at soned one. 9 June/July/Aug. 2020 Federal Bar Council Quarterly

After the Judge joined the make the best presentation effective at getting things Court, he often engaged other possible. done. judges both in the districts and in Overall it has been a pleasure the Circuit. For instance, Judge Five years before he became serving with him. He has been Wesley stated that, “When my son Chief Judge, he initiated the inspiring, you see him in ac- graduated from college he was in Study Group on Immigrant tion and you want to do more New York. Bob had dinner with Representation. District Judge yourself, want to do it better him once a month for a year or Jed Rakoff spoke of his leadership yourself. You learn how to so and on occasion, Sonia would in that project as follows: be a better judge and a bet- join them, just so I had peace of ter person by watching Bob. mind.” The immigration project re- The Study Group involves so District Judge J. Paul Oetken quired getting support not many people from so many stated that: just from fellow judges but different areas. The beauty of from major firms and -law this kind of a project is that The Judge has been a great yers throughout New York you get talented people from mentor. Bob has always been and also making sure that the the private sector, public sec- kind to me, treating me as an more established immigra- tor, media and then they are equal colleague. He took me tion bar would not view this all united in similar goals. to lunch in 2011, when I first as some sort of a critique. So Whether it is to engage and was appointed. He said that he met with all sorts of people educate the public or to pro- judges sometimes have an before he launched it. After vide representation to the overwhelming feeling. He ex- he launched it, he didn’t just immigrant community, it has plained what it was like when turn it over for somebody else been just a wonderful thing to he became a judge, what to to implement, it was hands on watch. Some judges are full expect. If I had any questions, and still is. He is a consensus of themselves, but not him. I was to ask Bob. builder, and he has vision that goes beyond the narrow con- Circuit Judge Peter Hall Circuit Judge Peter Hall fines of the Court,per se. agreed as to the Judge’s bigger stated that: vision as follows: Circuit Judge Denny Chin When I first was on Court,… stated that: He’s always been somebody Judge Katzmann had only who has thought of the mis- been there a few years. We Bob has been a visionary sion of the Court in a larger were just swamped with asy- with the Immigrant Study more global sense, in the way lum cases. He approached Group for instance, identify- which members of the Court bar associations to encourage ing a big picture issue that can try to help address the them to get firms to provide affects a lot of people, work- problems that come before it. pro-bono services to repre- ing within the constraints of sent persons whose cases being a judge and working It is clear that the Judge has were before us on asylum ap- on the true administration of always been true to his mis- plications. Then, the program justice; the effort has result- sion. District Court Judge Laura took off. We ended up help- ed in concrete improvement. Swain was a student of Judge ing these folks whose cases This is largely Bob’s doing Katzmann when she was 17 or were less likely to succeed. and certainly his leadership. 18 years old and he was a gradu- However, at least, they got He is so modest and kind ate student at Harvard. She says, representation and could but also very savvy and very “I remember being very im- Federal Bar Council Quarterly June/July/Aug. 2020 10 pressed with his intellect and the , hundreds of immi- now more than seven years later, care he took in teaching. He was grants have received free legal we recognize the fruits of his a real star in the government de- assistance. The IJC program ambitious goals which include: partment, student wise.” provides free legal services the Justice For All Initiative; the to low-income immigrants 125th Anniversary of the Second The Judge Reports on the by placing recently qualified Circuit; the Thurgood Marshall Success of the Study Group lawyers as “Justice Fellows” Lecture Series; and the CAMP with host community organi- colloquy. By 2012, Judge Katzmann zations. Justice Fellows rep- had built the Study Group on resent immigrants on legal Chief Judge Initiatives 2013- Immigrant Representation into matters including removal 2020 an inspirational force, where defense, complex affirmative all concerned were motivated asylum applications, and other Chief Judge Katzmann to respond to the plight of forms of relief available to ju- has spearheaded a number of the unrepresented immigrant veniles and victims of crime, initiatives. Here, we focus on in countless ways as was domestic violence, or human three. recognized by the immigration trafficking. bar, the press, and the judges of Civics Education: Justice For the Court. When he received the Thanks to Justice Sotomayor, All: Courts and the Community Learned Hand Award at the 2012 we know that Judge Katzmann’s – A Signature Initiative Federal Bar Council Law Day problem-solving began at an Dinner at the Waldorf, the Judge early age. The Queens boy who At the 2014 Judicial gave testimony to the success wrote to President Kennedy Conference, the Chief established of the actions of law school at the age of nine on behalf of a circuit-wide Committee on Civic deans, professors, work-a-day the Seneca People and who, in Education and announced his immigration advocates, and large second grade, wrote to then-New intention to make civics education law firm pro bono volunteers so York City Mayor Robert Wagner a focus of his tenure. He invited that every New York City detained about a problematic traffic light District Judge , immigrant became represented. in his neighborhood, was by 2012 who Judge Katzmann refers to The Judge has continued to a recognized and effective mover as his “remarkable, extraordinary help extend the reach of the and shaker for positive change in partner,” to serve as his co- organization. For instance, a staff New York City. chair of the Committee, which member of the New York Public is comprised of circuit, district, Library (“NYPL”) relates: Planning for Service as Chief magistrate, and bankruptcy court Judge judges, prominent members of I am writing to provide you the bar, and leadership from the with details about the Immi- After the Law Day Dinner, I Circuit’s law schools. Judge grant Justice Corps (“IJC”) had lunch with Judge Katzmann Katzmann had identified a gap in service at NYPL, a partnership about issues concerning the civics education in the public. He that Judge Katzmann helped Study Group. He informed foresaw a way for the judiciary to foster. Judge Katzmann me he was becoming chief to take a leadership role in filling connected the library with judge within the year and that the gap, while simultaneously IJC to form a partnership that there were things he wanted to increasing public understanding launched in September 2017, accomplish during his tenure. I of the role and operations of the and since the program’s start only recall one specific initiative, courts. Judge Marrero credits the at the Mott Haven branch in the civic education project, but Chief with using his “enormous 11 June/July/Aug. 2020 Federal Bar Council Quarterly imagination” to conceive of the and implemented programming Lawyers and judges serve as plan and to keep its momentum and have organized and facilitated faculty throughout the week, and going. As Judge Katzmann said the immense logistics involved in as contact points during the school at the time, the purpose was not annual moot court competitions. year for courthouse visits. The to put the judiciary on a pedestal, They have curated the digital and students who are the beneficiaries but to both increase public visual exhibits that now populate of this training program have understanding of the courts and the courthouse walls when you said that they are in awe when for the courts to better understand walk through 40 Foley Square. judges and attorneys come into the communities they serve. Circuit Librarian Luis Lopez their classrooms or speak to them His ambition was to spur recalls how Judge Katzmann at the courthouse. For them, civic education projects in every took him to a particular location the experience “demystifies the district in the Circuit, in every on the fifth floor and pointed out whole profession.” The Circuit court in the Circuit, to be the first where the exciting new digitally library staff has worked to write Circuit which would undertake a equipped public library would be and curate resources that are comprehensive civic education located. age-appropriate for the students program. What has developed In New York City, the involved in the programs. is a Circuit-wide series of Committee has a direct education Ms. Lesser described how touchpoints between the courts partner in the Justice Resource Justice For All committee and their respective communities. Center led by Debra Lesser. members, along with Russell In partnership with local bar The Justice Resource Center Wheeler of the Governance leaders, the courts have opened is a public-private partnership Institute, worked with teachers to their doors to the community between the legal community augment the school curriculum to and invited students and adult and public school system. Fifty- better explain the role of courts in community members into the two schools in the New York the legal system. The Institute has courthouses. The Committee City public school system have taught 25 to 30 teachers a year for has also developed programs law programs, and the Justice five years, specifically training including trial reenactments Resource Center supports these them on the Bill of Rights and the (pioneered by Circuit Judge Chin programs. Ms. Lesser spoke to Constitution so they can better and his wife Kathy), courthouse us of receiving a call one day teach students. A recent addition tours, and financial literacy from the Judge, who introduced is students receiving a Judiciary workshops. Judge and attorney himself to her. He then arranged and Art Program. In short, even pairs go into the schools to teach for her to come to the courthouse more are getting help. Some students about civics and the for a lengthy conversation in would not have necessarily courts, also bringing judges closer chambers. She says that the Judge been attracted to law or civics; to the communities in which they is a most wonderful senior partner however, their interest in art serve. Whenever he talks about to her. Around 80,000 to 100,000 serves as an entry point into the the program, Judge Katzmann is students have participated in program. Attorney John Siffert of quick to credit the deep dedication the activities Justice For All the Civic Education Committee of the committee he formed, with instituted by the JRC Partnership. wondered how to attract students Judge Marrero as co-chair, as well Justice For All: Courts and the who are not interested in law. as judges throughout the Circuit Community hosts an annual Thus, the arts program, with who have participated, and the teacher training institute, which the guidance of Justice For All Circuit’s imaginative library and provides the participating teachers committee member Magistrate administrative teams. in-depth education, training, and Judge Vera Scanlon, became an The Circuit’s administrative curriculum resources for the Bill idea to attract others. The program and library staff have developed of Rights and the Constitution. brought in young students who Federal Bar Council Quarterly June/July/Aug. 2020 12 created several different artworks honoring Judge Deborah Batts, Judicial Conference to adopt based on the Court; the artwork the country’s first openly gay civics education as an important soon will be displayed online. district court judge. This program element of judicial service and In 2018, the Circuit opened is now available on the Justice for the other circuits to institute the Justice For All: Courts and For All website. Justice For All programs of their own. the Community Learning Center. has worked with such student The culminating effect of the Located on the fifth floor of the groups as Legal Outreach and the initiative was when Chief Justice courthouse at 40 Foley Square, Harlem Educational Activities Roberts in his December 31, 2019, the Center is a state-of-the art Fund, hosted the Just the Year End Report on the Judiciary facility that provides a place for Beginning Foundation’s national recognized civics education visitors (predominantly students) gathering, and welcomes bar as an important element of to learn, through interactive associations, including minority judicial service and commended kiosks and digital exhibits, the bar associations. Judge Katzmann the efforts stemming from the role of the federal judiciary and plans to continue to work with Second Circuit. In March 2020, the purpose of the courts. In the initiative after his tenure is the Judicial Conference of the addition, the Learning Center over as chief judge. United States endorsed regularly- offers lecture spaces, a studio for The Second Circuit has not scheduled conferences on civics recording podcasts and videos, been alone among the circuits education and encouraged cross- and a modular space that can be in advancing civics education circuit collaboration in promoting configured in a variety of ways to activities, but has been at the civics education activities. enhance the learning experience. forefront of taking a formalized,

As Judge Katzmann said when circuit-wide approach and 125th Anniversary Programs the Learning Center opened, the making civics education a court facility signals to the public that priority. In October 2019, the On the occasion of the 125th the courthouse is not simply a Second Circuit took the lead anniversary of the Circuit, Judge venue for the resolution of conflict, in organizing and hosting the Katzmann established a special but also a place for discussion federal judiciary’s first national committee to undertake a wide and understanding about the rule conference on civics education. range of activities relating of law and the importance of an The conference was attended to that 125-year experience independent judiciary. In the by judges, administrative staff, as it had done some 25 years period of COVID-19, many of and bar leaders from all 13 before. The committee, chaired the Learning Center’s resources circuits. Representatives from by Circuit Judge Richard C. have been made available on-line Maine to Guam gathered to Wesley, consisted of judges, for teachers, students, and the learn, collaborate, share ideas, court staff, and members of the public. and exchange program ideas. bar. The activities included a The Justice For All initiative In addition to the 175 in-person biographical collection of the serves the entire community. attendees, Supreme Court judges, distributed by Cornell Programs and exhibits Justices Breyer, Sotomayor, and University Press; a volume on celebrating Black History Month Gorsuch participated remotely. the jurisprudence of the Second and Women’s History Month The Chief envisioned this Circuit, published by Fordham have been displayed in the conference and empowered his Law Review; exhibitions courthouse. In recognition of colleagues through the Circuit’s documenting the Court’s cases LGBTQ Pride month in 2019, Civic Education Committee and history; reenactments of the Circuit’s library team worked to make it a reality. The event some of its notable cases; lectures with Judges Oetken and Alison has served as a catalyst for on the history of the Court; Nathan to produce a program Chief Justice Roberts and the programs of remembrances of 13 June/July/Aug. 2020 Federal Bar Council Quarterly some distinguished judges of the Marshall U.S. Courthouse. groups, and exhibitions relevant past, including Learned Hand, Chief Judge Katzmann has to the civil rights experience, Henry J. Friendly, and Thurgood sought to ensure that Thurgood such as Black History Month. Marshall, with reflections of four Marshall’s legacy is appropriately Supreme Court Justices; and a remembered in the Courthouse. Almost A Year in the Life of the program on the certification of Before the Marshall Lecture was Chief: 2019-2020 opinions for the Circuit to the created, Gilbert King, Pulitzer State High Courts. Prize-winning author of “The It would be daunting to Circuit Judge Wesley stated Devil in the Grove: Thurgood catalog the Chief’s achievements the following: Marshall, the Groveland Boys for seven years, but the last year and the Dawn of a New Age in is indicative of how he has led I was very fortunate that he America,” offered a lecture about the Court throughout his tenure appointed me to head up the Marshall’s courageous trial work and of the continuing recognition

125th anniversary programs in the South. Then, two years of his leadership. Here are some which proved to be a labor later, as part of the Court’s 125th highlights of the past 10 months. of love for myself and for ev- anniversary celebration, the Court erybody else involved. This of Appeals sponsored a discussion October 20, 2019: Portrait ties in with our reaching out about Thurgood Marshall from Unveiling at Yale to the public and letting the the perspective of his clerks, public know who we are and including Supreme Court Justice School of what we do. We presented a Kagan and two distinguished Law recognized the Chief at series of terrific programs co- law school deans, a litigator, an October 20, 2019 portrait ordinated with the local bars and Judge Paul Engelmayer. unveiling ceremony, in a and courts about famous cas- Judge Ralph Winter’s wonderful celebration populated by his es and judges from our Court. eulogy of Justice Marshall was family, friends, colleagues, and They were just stunning pro- distributed to all attendees. nearly 100 former law clerks. The grams. The courthouse lobby features event was held on a Sunday, and photographs of Justice Marshall’s because the judge did not want to Thurgood Marshall Lecture career. And the Learning Center impose on his judicial colleagues’ Series has a multimedia exhibit about weekend, he asked Yale not to Thurgood Marshall’s momentous issue special invitations to them, Judge Katzmann conceived life. The first Marshall Lecture but many, upon learning about of the Thurgood Marshall Lecture was delivered by Professor the ceremony, came happily in 2018, which, along with the Robert Post of Yale Law School. to join in the celebration. In Hands Lecture, is one of two The second Marshall Lecture will the words of Yale Law School signature lecture series sponsored be offered by Professor David Dean Heather Gerken, Judge by the U.S. Court of Appeals for Blight of Yale Law School on Katzmann’s portrait “marks the Second Circuit. The Thurgood Frederick Douglass. As noted a legacy that embodies the Marshall Lecture honors the first above, in keeping with the efforts greatest hopes of this school, to African-American Supreme to honor Justice Marshall’s train servants of justice.” In the Court Justice, the lawyer who legacy, through the Justice For Dean’s introduction of the Chief, did more for civil rights than any All: Courts and the Community she acknowledged his career- other, and who was a judge on the program, the Thurgood Marshall long dedication to solving real- Second Circuit Court of Appeals Courthouse has become a world problems and the role of in the very courthouse now welcoming place for a variety of law in doing so, and sharing this named for him, the Thurgood diverse student groups, and bar understanding with others. Federal Bar Council Quarterly June/July/Aug. 2020 14

Judge Katzmann’s life and rigorous and ambitious research Judge Calabresi shared accomplishments were related and colored by his personal his experiences as one of the by Justice Sotomayor, Dean experience. The Dean quoted Chief’s colleagues and as his William Treanor of Georgetown the late Senator Moynihan, professor at Yale. With his many University Law Center, Lindsay who commented that Judge administrative responsibilities Nash, a former clerk of Judge Katzmann’s oeuvre is an important and initiatives, it is easy to Katzmann and clinical professor body of “useful knowledge” forget that Robert Katzmann at Cardozo, and Judge Guido that has “profoundly influenced also is a judge – hearing cases Calabresi, former Dean of Yale the way scholars, judges [and] and writing opinions along with Law School and colleague of members of Congress think everyone else. Judge Calabresi Judge Katzmann on the Second about the way government works spoke passionately about Judge Circuit, Peter Kougasian, and the way it should work.” Katzmann’s ability to listen and classmate of Judge Katzmann That’s an immensely important lead gently, and how powerful at Yale, and Justice Ruth Bader accomplishment – enough to and effective a skill it is. Judge Ginsburg. fully occupy one career. Calabresi also shared a letter From an early age Judge Lindsay Nash, who worked written by Judge Katzmann’s Katzmann demonstrated a sense with the Chief in the immigration Yale classmate, Peter Kougasian, of justice and commitment to space prior to her clerkship with who was unable to attend in advocating for what was right him, spoke of the lasting impact person. Mr. Kougasian wrote and fair in the world. Justice the Study Group on Immigrant that “Bob is a great person whom Sotomayor pieced together for Representation has had not only after you’ve met him, your first the audience a picture of his in raising the standard for the thought is, ‘how special am I?’” childhood. Judge Katzmann’s immigration bar, but also in the This comment aptly captured the father, John, was an immigrant real-world impact his initiatives experience of anyone who has who escaped from Nazi Germany have had on immigrants and the pleasure of speaking with the as a young teen. His mother, their families. Ms. Nash spoke Chief – he can make you feel that Sylvia, is the daughter of Russian of his meticulous gathering and you are the most special, most immigrants. Together they analysis of data, and how he important person in the world. instilled a deep sense of empathy was able – through the work of The Chief Judge's brother, and an understanding of the the Study Group – to change Judge Gary Katzmann, offered importance of access to justice the narrative for immigrants the following toast: that has served as a foundation facing deportation. From this for the Chief’s life and career. work emerged the Immigrant It is an honor to toast my big Justice Sotomayor noted that his Justice Corps, the nation’s first brother — by eight minutes parents instilled in him and his fellowship program for college — my identical twin brother siblings the belief that “nothing and law school graduates to serve Bob. was worth doing unless it was low-income immigrants, and the In the last three years, with done with integrity, kindness, New York Immigrant Family our courthouses across the modesty, and concern for others.” Unity Project, the nation’s first street from each other, I’ve Judge Katzmann always speaks government funded program for had the opportunity to visit of how fortunate he feels he is poor immigrants in need of legal Bob often in his chambers. to have such a loving, supportive representation. The success rate On numerous occasions, I’ve family and friends. of these programs is astronomical run into people from Bob’s Dean Treanor spoke of – not only in helping families in courthouse family – a mes- Judge Katzmann’s academic need but also by training a new senger from the mailroom, contributions as being based on generation of advocates. a member of the cleaning 15 June/July/Aug. 2020 Federal Bar Council Quarterly

crew – and after they’ve as- Bob’s family and his vast mission to raise awareness of certained that they are speak- extended family and commu- immigrant contributions to ing not to the Chief Judge but nity of friends, to raise a glass the arts, culture, and scientific to his twin from across the and to join me in this “Toast, discoveries in the United States, street, they will invariably say to our big brother Bob, the awarded its 2020 Prize for – “Your brother is a wonder- richest man in town.” Excellence to Judge Katzmann. ful guy. He cares, he really At the award ceremony, Judge cares.” That is something that Finally, Justice Ginsburg Katzmann’s background was our entire family has known spoke in a video-message to Judge related as follows: for all our lives. He is always Katzmann. She commented that there for us, devoted and self- Judge Katzmann had “enhanced Born to a father who fled less, generous and selfless, the Second Circuit’s reputation for Nazi Germany and a mother unpretentious and modest. excellence,” and she commended from an immigrant family, Everything you have heard her friend for his creation of the Judge Katzmann has long about Bob’s professional Immigrant Justice Corps and the been aware of the role the achievements is not only true Justice For All: Courts and the courts play in the lives of im- – it is understatement. He Community initiative. migrants as well as the trans- celebrates others, but never formative effects of citizen- himself. A visionary in the October 31, 2019, the National ship and legal status. worlds of academia and the Civics Education Conference Early in his judicial career, law, a thinker and a doer, a he observed the widespread creative leader in so many As noted above, in October lack of competent represen- different realms, he has given the Second Circuit hosted the tation for non-citizens – es- voice to those without a voice, federal judiciary’s first national pecially among those in need answered the call of those conference on civics education, a – and the adverse impact on in need, inspired, mentored, landmark gathering. their cases’ outcomes. Judge supported, and uplifted. Katzmann inspired the for- A great favorite of Bob is the December 2019, the Circuit mation of a Study Group on movie, “It’s A Wonderful Staff’s Annual Awards Event Immigrant Representation, Life,” with Jimmy Stewart from which emanated several playing George Bailey. That The Chief, of course, attended path breaking initiatives. In holiday classic celebrates the annual Circuit staff awards 2014, Judge Katzmann spear- that the measure of a person ceremony. When Circuit Clerk headed the creation of immi- is not material accumulation Catherine Wolfe noted that this grant Justice Corps, a not-for- or wealth, but how they’ve would be the final meeting that he profit organization, and the touched others, made the would attend as Chief Judge, the United States first fellowship lives of others better. We, room spontaneously erupted into program to train recent law Bob’s family, cannot imagine a standing ovation. school graduates to provide life without his touch. Every- high-quality legal assistance one in this room, can think of January 2020, the Vilcek to immigrants in need. countless ways in which Bob Foundation Prize has made their lives better. In accepting the Vilcek Prize And, so, like Harry Bailey In January, the Vilcek for Excellence, Judge Katzmann toasting George in the final Foundation, which created declined the substantial cash moments of “It’s A Wonder- the Vilcek Prizes to act as an prize. The Vilcek Foundation ful Life,” I ask each of you, extension of the Foundation’s honored his request to donate Federal Bar Council Quarterly June/July/Aug. 2020 16 the prize money to a nonprofit Mr. Jordan states that: of appointments but also in organization that provides direct terms of just inspiring them services to immigrants in need in The Court never missed a day and getting the best out of the United States. due to the switch to remote. them. They respond to his The Court provided public leadership by example, they February and March 2020 – access, created archival cop- respect him and admire him Planning and Implementation of ies of all oral arguments, test- and want him to be success- the Circuit’s Virtual Operations ed live-feed connections and ful and therefore they are suc- in Response to COVID-19 the overall stability. Only two cessful. of 325 people have become In early February of this year, infected. Currently, less than Second Circuit Planning with after attending a conference on 10 people actually go to the the District of Columbia, 7th, the West Coast and wearing a Courthouse every day and and 9th Circuits on Clerkship mask on the flight, Circuit Clerk are taken by taxi cabs and Hiring Catherine Wolfe determined to returned to their homes; ev- alert the Court to think ahead eryone else is working fully New York University Law and to prepare for the virus. remote. Dean Trevor Morrison reported Judge Katzmann, thus, formed upon the Judge’s leadership during a preliminary committee of Former Circuit Chief Judge the past two years in encouraging himself, Ms. Wolfe, and Circuit John Walker remarked in the chief judges of the District of Executive Michael Jordan (since admiration on the transition as Columbia, 7th, and 9th Circuits expanded). Ms. Wolfe reported as follows: to come together to spearhead a follows: uniform national procedure for As our Chief Judge, he has interviewing and selecting law The Judge devised a plan had the mother of all chal- clerks. The Dean stated it was a where senior staff would pre- lenges, the COVID 19 pan- typical performance of the Judge. pare the Court for a quick demic, which required a He initiated the idea, he contacted transition to remote opera- revolution of how we do our and convened a meeting with tion. The staff divided them- business – doing arguments the other chief judges, and selves into groups where they over conference calls, meet- was involved in developing tested and retested the remote ings via Zoom, getting info procedures for implementation. operations. Remote practice out to judges that’s necessary began in mid-February and so the Court can continue The Significance of the Judge’s transition was very smooth. to function in a timely way. Book, “Judging Statutes” – the The Judge, Michael Jordan We’ve been able to basical- Zarda Decision and I all emailed each other ly continue the work of the on steps to take to have ev- Court uninterrupted without In 2014, Judge Katzmann’s eryone safe and start going delay; we’re as current right “Judging Statutes” was published virtual. now as we were before coro- by Oxford Press to high praise During meetings the week navirus; that’s an amazing ac- from many sectors of the judicial of March 9th, we decided complishment, and testament and legislative world. Judge to transfer to remote opera- to his ability as chief judge, Rakoff commented to us that we tions. Judge Katzmann sent a his goals and the way he ap- should make a point of mentioning global communication email proaches goals. It’s also due that his book is having long term to all the other department to our remarkable staff which impact on law and the courts. heads. he has shaped, both in terms Justice Gorsuch’s recent opinion 17 June/July/Aug. 2020 Federal Bar Council Quarterly in Bostock v. Clayton County, one how judges interpret those law, Judge Katzmann argues of the trilogy of cases interpreting laws. So when I was asked that when a judge interprets Title VII’s prohibition of by N.Y.U. School of Law to a federal statute, the core en- employment discrimination, was deliver the Madison Lecture, terprise is discerning the pur- itself an affirmance of one of the I thought the time was ripe pose behind the law. For the Chief’s cases, Zarda v. Altitude for me to revisit the subject courts to insist that Congress

Express, Inc., 883F. 3d 100 (2d of interbranch relations and to formally enact legislative his- Cir. 2018). His opinion in Zarda offer reflections on statutes. I tory in explicit statutory text reflected his views of statutory would not have thought to ex- before it is given any weight interpretation, which is a much pand the lecture into the book would, Judge Katzmann con- broader and more nuanced were it not for Adam Liptak tends, be to tell Congress how view of interpretation than the of The New York Times, who to do its business. Thus, judi- originalism that the dissent relied recommended that I do so. I cial consideration of legisla- on. It is apparent from talking am so glad that I took his ad- tive history is for Katzmann, to both law professors and other vice; working with Oxford a matter of judicial defer- judges, that his book has had a University Press was a won- ence to Congress – the very significant impact in countering derful experience. deference that textual people the more rigid statutory like Scalia tend to invoke in interpretation view that began to Zarda was not the only recent defense of their preferred ap- emerge with Justices Scalia and opinion of Judge Katzmann’s proach. Thomas. to be affirmed by the Supreme Judge Katzmann, as the only Court. In June 2020, the Supreme Cardozo Law School Dean sitting circuit court judge with Court affirmed another decision Melanie Leslie informed us that a Ph.D. in Political Science, as in a landmark ruling, Trump v. the Judge regularly teaches a one- a scholar on legislative-judicial Vance, in which the Court held day course on “Judging Statutes.” relations, and with nearly 20 years in part that the president enjoys The former Georgetown Law of experience in Washington, no absolute immunity from state Professor Katzmann goes to working closely with Senator Pat criminal subpoenas. Cardozo and participates in the Moynihan on a variety of projects, Dean Trevor Morrison of question and answer discussion brought a unique perspective to New York University Law School on the book. Dean Trevor the judge’s job of interpreting wrote on “Judging Statutes” as Morison said that New York statutes. In his own words: follows: University Law School schedules a special forum with the Chief As a judge, I spend consid- “Judging Statutes” is a pow- for new appellate judges at erable time interpreting stat- erful and sophisticated de- which “Judging Statutes” is utes, the laws of Congress. fense of an approach to fed- discussed. Judge Katzmann has Congress enacts laws on a eral statutory interpretation also enjoyed lecturing about the wide variety of important that emphasizes the primacy book at St. John’s Law School, topics (e.g., civil rights, the of the text of the laws enacted Fordham Law School, environment, health care, the by Congress, but that does not Law School, and Cornell Law. economy), and those laws focus exclusively on those In its sixth printing, “Judging (and the interpretation they words when their meaning is Statutes” has become a classic are given by judges) can have unclear. Drawing on his deep in the field, with the late Justice a profound impact on peoples’ experience as a federal judge John Paul Stevens declaring lives. It’s therefore impor- as well as his academic train- it “required reading for all tant that people understand ing in political science and lawyers confronting questions Federal Bar Council Quarterly June/July/Aug. 2020 18 of statutory construction when ential. While Bob was chair, I is a giver. Within the federal advising clients or arguing such was a member of the Commit- Judiciary his advice is highly issues before judges.” And in a tee and a witness to his lead- valued.” book review, then Judge Brett ership style. Bob led with a Kavanaugh urged: “Read this light touch, both when he was A Special Day book, read this book.” conducting the meetings and overseeing the work between Judge Sidney Stein reports Summing Up meetings. He never tried to on Constitution Day 2016 as force an issue or dictate a follows: Judge Katzmann’s National result. Rather, he moved the Role Committee by means of gen- On September 16, 2016, a tle persuasion and a sly (often naturalization ceremony in By appointment of the Chief self deprecating) humor. the imposing Great Hall on Justice, Judge Katzmann has Ellis Island, where new im- had major assignments. He While serving as chief judges migrants assembled for pro- chaired the Judicial Conference of their respective districts, cessing upon their arrival by Committee on the Judicial Judges and J. boat in New York Harbor. Branch, a committee that Garvan Murtha were privileged It was the largest collective monitors relationships with to serve with Judge Katzmann naturalization ceremony in Congress, and seeks to increase on committees of the Judicial the history of Ellis Island. In public understanding of the Conference in Washington, addition to the 300 new citi- courts. In that role, he launched D.C. Judge Amon recalls how zens from around the world, an innovative program, a protective he was of the Circuit’s there were hundreds of guests dialogue series of judges and interest, and how he worked hard and relatives, including of- legislators, supported by the Pew to avert cuts to 24-hour security ficials of the Park Service, Charitable Trusts. It was also for the courthouse in a period the USCIS, the Department in that role that he spearheaded of government shutdown. Judge of Homeland Security, the the first survey of judges as to Murtha and Judge Katzmann military, and U.S. Customs civic education activities, which worked together as members of and Border Protection, as helped guide Judge Katzmann the Judicial Branch Committee to well as members of the Im- in starting the Second Circuit’s restore lost salary adjustments for migrant Justice Corps, which civic education program. judges. Judges Amon and Irizarry Bob had founded. I gave the As a member of the Judicial recall how well the Judge stayed welcoming remarks and Bob Conference, he also has served in touch with them with concerns administered the oath of citi- on the Chief Justice’s Executive for their districts when they were zenship and gave personal Committee, a committee of seven chief judges, indeed all of the reflections. Those reflections judges that helps manage Judicial chief district judges value Chief were loving, deeply felt, ar- Conference activities. He has also Judge Katzmann’s attentiveness ticulate, highly personal and served as Chair of the Supreme to their concerns. At a gathering galvanized the entire hall. He Court Fellows Commission. of New York University’s Annual spoke movingly about his fa- Judge Richard K. Eaton of Survey of American Law, which ther’s flight from Nazism and the U.S. Court of International dedicated an issue to Judge anti-Semitism in Germany Trade recounted: Katzmann, Administrative Office to the United States and his of the U.S. Courts Director mother’s family’s flight from Many believe that the Branch James C. Duff summed up Judge Russia as well. In very per- Committee is the most influ- Katzmann’s national role: “Bob sonal terms, he spoke about 19 June/July/Aug. 2020 Federal Bar Council Quarterly

how that past had fortified and change. He puts that pas- He’s soft-spoken, kind of his resolve to ensure that sion to work and leverages reserved. He’s really just the U.S. would be a country his experience and his con- wrapped in the perfect pack- “that remains true to its prin- nections and the platform he age because you look at him ciples of justice for all.” I am has earned with this work to and say, “okay, he’s quiet, not always proud to be a judge, create solutions and the Jus- going to be throwing light- but that day Bob made me tice Corp. and civic education ning bolts and then all of a even prouder and deepened initiative are living a growing sudden he’s got your arm in a my own high regard for “the embodiment of that work of hammer lock and you’re do- chief” and his life-long, ef- his. Those are tremendously ing exactly what he wants.” fective, and truly monumen- important achievements, but He has demonstrated that the tal body of accomplishments. also very much indicative of role of the Chief Judge can be his character. broader than simply adminis- Judge Katzmann’s Effectiveness trating the day to day…and I as a Leader Judge Oetken added: think that will set a long-term model. For a guy who’s so As a good leader, the Chief Chief Judge Katzmann rec- low-key and soft spoken, he mentors new judges such as ognized LGBTQ Pride month has an enormous amount of asking District Court Judge with educational programs focus energy. You really don’t Victor Bolden to serve as chair of and historical information on want to be the guy that is the Judicial Conference (in 2019) the Court’s website – perhaps swimming against his stream, and (again in 2020) after Judge the first time the Court of he is kind of ever pressing. In Bolden had served on the bench Appeals has done so. Taking that soft-spoken manner of for just four years. those steps was historic, and his, he just doesn’t quit. District Court Judge Laura it was certainly significant to Swain describes the Judge as, members of the LGBTQ com- Former Circuit Chief Judge “the complete package.” She says munity and anyone interested John Walker states: that: in the history of civil rights in this country. He has the ability to make He has a singular combina- What strikes me most organizational changes with- tion of academic experience, of all about Chief Judge out disrupting performance experience in operations and Katzmann’s tenure was the and he can engineer smooth theories of government, and way he genuinely opened up transitions. That applies not achievements in government the federal courts to the com- only to hiring and staff, but at a high level, as a writer munity. He brought in the also to the whole function of and a judge in his craftsman- public – students, educators, the court and to his response ship and leadership and in his people affected by the le- to the Covid-19 situation. It overall dedication in public gal system, and people who was a smooth transition and service. This is unusual in the might someday work in the performance. federal judiciary and he has justice system – and made He has the admiration of all put all of that to work for the the courts less mysterious, Article III judges. When you judiciary. He presents as qui- more accessible, and more are chief judge, you’re not et, unassuming and very pow- relevant. their boss. Some have lik- erful all at the same time. He’s ened the job to herding cats. also passionate about justice, Judge Wesley describes the They’re independent judges about things he can improve Judge as follows: with their own ideas of how Federal Bar Council Quarterly June/July/Aug. 2020 20

e th y want to do things and inspires people to go along 15-cr-95 (AJN) (S.D.N.Y. Mar. managing that is not easy. with him. 18, 2020). You have to listen a lot. Your On March 13, 2020, in the skills are much less that of What better way to end the interest of protecting public health autocrat than of diplomat. article! and reducing the size of public You have to lead by example gatherings and unnecessary and by consensus and he’s * * * * * travel, Chief Judge Colleen done a remarkable job with McMahon of the U.S. District that in seven years he’s been Editor’s Note: The authors Court for the Southern District Chief. thank Sarah Eikenberry for her of New York issued a standing invaluable assistance with the order that, among other steps, Circuit Judge Pierre Leval interviews and David M. Brodsky continued all civil and criminal states: for his editing. jury trials scheduled to begin before April 27, 2020, excluded When I had my 40th anniver- time under the Speedy Trial Act, sary as judge, he invited me and strongly encouraged judges to dinner; he’s just a sweet- From the Bench to hold proceedings by telephone heart of a person. When or videoconference where members of the court are be- practicable. Standing Order, ing honored somewhere or The Impact of In re Coronavirus/COVID-19 giving a lecture, he shows up, COVID-19 on Federal Pandemic, No. 20MC00154 comes to support. When I’ve Court Proceedings (S.D.N.Y. Mar. 13, 2020). given lectures at various law Within three days, due to the schools around the city, he’s By U.S. Magistrate Judge rapid advance of the virus, the there; it amazes me. standing order was revised to Sarah L. Cave Another thing is what a good further restrict access to Southern and conscientious judge he is. District courthouses, body He is thoughtful and caring temperature and other screening and careful in studying the mechanisms were put in place, precedents to figure out - ex and courthouse staff were placed actly what they mean which on administrative leave, with only is not always so clear. essential functions continuing. See Revised Standing Order, Justice Sotomayor’s In re Coronavirus/COVID-19 observations of her dear friend Pandemic, No. 20MC00155 and “brother,” Judge Katzmann, (S.D.N.Y. Mar. 16, 2020); summed up the Chief’s tenure: Standing Order, In re Coronavirus/ By March of this year, COVID-19 Pandemic, No. Bob has an innate sense of “the unprecedented and 20MC00161 (CM) (S.D.N.Y. justice, morality, and integ- extraordinarily dangerous nature Mar. 17, 2020); Standing Order, rity. He is unrelenting in his of the COVID-19 pandemic In re Coronavirus/COVID-19 advocacy. He has a tenacious [became] apparent” to the world Pandemic, No. 20MC00162 spirit and never gives up; he in general, and to the federal (CM) (S.D.N.Y. Mar. 18, 2020); is a visionary who brings out judges within the Second Circuit Memorandum dated March 20, the best in people and always in particular. Opinion & Order, 2020. sows the seeds for things and United States v. Stephens, No. By March 27, 2020 all jury 21 June/July/Aug. 2020 Federal Bar Council Quarterly trials were suspended until June Criminal Proceedings or, if videoconferencing was 1, 2020, and by April 20, 2020, not reasonably available, by were suspended indefinitely. See Beginning in early teleconference, if the defendant Standing Order, In re Coronavirus/ March, the Southern District consented to doing so after COVID-19 Pandemic, No. initiated temperature screening consultation with counsel. 20MC00172 (CM) (S.D.N.Y. procedures for all detainees The proceedings in which Mar. 27, 2020); Standing Order, arriving at the courthouses from a defendant may consent to In re Coronavirus/COVID-19 the Metropolitan Detention participate remotely include Pandemic, No. 20MC00197 Center (“MDC”). See Standing initial appearances, bail hearings, (CM) (S.D.N.Y. Apr. 20, 2020). Order, In re Detainee Screening appointment and substitution of Chief Judge Roslynn R. Procedures, No. 20MC00137 counsel, waivers of indictment, Mauskopf entered similar orders (CM) (S.D.N.Y. Mar. 6, 2020). arraignment, probation and for the Eastern District of New Similar procedures were put in supervised release revocation York, see https://www.nyed. place in the Eastern District. proceedings, and pretrial release uscourts.gov/covid-19, and the See Administrative Order, In re revocation proceedings. Second Circuit also adopted Detainee Screening Procedures, In the case of felony pleas modified procedures. See https:// No. 2020-04 (E.D.N.Y. Mar. 9, or sentencing, Section 15002(b) www.ca2.uscourts.gov/. 2020). While, initially, criminal (2) of the CARES Act allows a With the extreme disruption defendants, their counsel, and judge to conduct the proceeding the virus has imposed on federal their families, remained among by videoconference or telephone court proceedings, judges and those still able to enter the conference if two requirements practitioners have found creative courthouses, see Standing Order, are met: ways to cope with this very In re Coronavirus/COVID-19 unusual set of circumstances. Pandemic, No. 20MC00155 (1) The chief judge of the district Three months into what may be (S.D.N.Y. Mar. 16, 2020), by “specifically finds…that - fel the “new normal” was an ideal the end of March the virus had ony pleas…and felony sen- time to discuss and assess the advanced to the point where tencings cannot be conducted status of federal court litigation detained defendants were no in person without seriously in the Second Circuit. On June longer being produced in person. jeopardizing public health 22, 2020, the Federal Bar Council The Coronavirus Aid, and safety”; and hosted a webinar entitled “Remote Relief and Economic Security (2) The presiding judge “finds for Proceedings: The View from (“CARES”) Act, signed into law specific reasons that the plea the Bench.” Moderated by Seth on March 27, 2020, combined or sentencing in that case can- Levine, a former federal prosecutor with the courts’ standing orders, not be further delayed with- and now a partner with Levine Lee promptly provided alternative out serious harm to the inter- LLP, the panel included former avenues for the courts to conduct ests of justice.” Second Circuit Judge Christopher criminal proceedings in a timely Droney, District Judges Brian fashion. CARES Act § 15002(b) The chief judges of both the Cogan of the Eastern District of (1), Pub. L. No. 116-136, 134 Southern and Eastern Districts New York and J. Paul Oetken of Stat. 281 (2020). entered standing orders making the Southern District of New York, Pursuant to that authority, the first finding, see Standing and Magistrate Judges Sanket federal judges could proceed Order, In re Coronavirus/ Bulsara of the Eastern District of with presentments and COVID-19 Pandemic, No. New York and your author, Sarah other proceedings with the 20MC00176 (CM) (S.D.N.Y. Mar. Cave of the Southern District of defendant participating 30, 2020); Amended Standing New York. remotely by videoconference, Order, In re Coronavirus/ Federal Bar Council Quarterly June/July/Aug. 2020 22

COVID-19 Pandemic, No. Magistrate Judge Cave 20MC00176 (S.D.N.Y. June 24, With the extreme described one additional impact 2020); Administrative Order, disruption the of the pandemic – the temporary In re Coronavirus/COVID-19 virus has imposed absence of a sitting grand jury Pandemic, No. 2020-13 (E.D.N.Y. on federal court in the Southern District – so Mar. 30, 2020); Administrative that many new arrests have been Order, In re Coronavirus/ proceedings, judges based on complaints rather than COVID-19 Pandemic, No. 2020- and practitioners indictments and further noted 13 (E.D.N.Y. June 25, 2020), have found creative the corresponding implications and each district judge has ways to cope with for deadlines under the Federal individually made the second. this very unusual set Rules of Criminal Procedure Pursuant to this authority, and the Speedy Trial Act. Where the district courts in the of circumstances. a defendant has been detained Second Circuit have conducted following arrest, Federal Rule criminal proceedings remotely, and Southern Districts are held. of Criminal Procedure 5.1(c) (as through videoconferencing and Judge Cogan described the well as 18 U.S.C. § 3060) requires teleconferencing platforms. ease with which he has converted that a preliminary hearing be Magistrate Judge Balsara status conferences to written held within 14 days of the initial explained that the Eastern District status reports from the parties, appearance, absent findings that uses a combination of Skype for with telephone conferences as “extraordinary circumstances” Business and Webex platforms necessary. In fact, this shift has exist and “justice requires the to conduct criminal proceedings been so efficient and effective delay.” Fed. R. Crim. P. 5.1(d). remotely. A typical proceeding, that Judge Cogan is strongly In addition, the Speedy such as a presentment following considering continuing the Trial Act requires that arrest, involves the magistrate practice even when parties and “[a]ny information or indictment judge and the defendant defendants are able to appear in charging an individual with appearing by video, with all person. the commission of an offense other participants – the Assistant Judge Oetken noted that the shall be filed within thirty days U.S. Attorney, defense counsel, a Southern District has deployed from the date on which such representative of Pretrial Services, a different technology platform individual was arrested or served an interpreter, etc. – participating known as CourtCall, supplemented with a summons in connection by phone. The combined platform by a telephone conference line with such charges.” 18 U.S.C. also includes a mechanism for the that has largely been a stable § 3161(b). This deadline may also defendant to confer confidentially and reliable mechanism for be “continu[ed]” if the court finds with his or her counsel. Although remote criminal proceedings. “that the ends of justice served by the technology, after a few The Southern District’s platform taking on such action outweigh complications in the early days faces the same constraint arising the best interest of the public and of use, has largely worked well, from the limited number of video the defendant in a speedy trial.” the number of proceedings that and telephone facilities in the 18 U.S.C. § 3161(h)(7)(a). As can be conducted in this manner detention facilities, but through these deadlines began to approach is necessarily limited by the the combined efforts of the court, in April for defendants who had very small number of video and the bar, and the Bureau of Prisons, been arrested in March, some telephone links at the MDC and an advance schedule has been put defendants declined to consent the Metropolitan Correctional in place to facilitate organized to extending the deadlines – as is Center (“MCC”), where most use of the limited number of their right – but the government detained defendants in the Eastern connections. could not file indictments in the 23 June/July/Aug. 2020 Federal Bar Council Quarterly absence of a sitting grand jury in Order of Continuance, United He has since heard several oral the district. Thus, the government States v. Ramirez, No. 20MJ02370 arguments via video or telephone, was in the position of having (UA) (S.D.N.Y. May 7, 2020). but noted that, consistent with his to seek extensions of the In the Eastern District, all prior practice, oral arguments preliminary hearing deadline and preliminary hearing deadlines have been the exception and he continuance of the deadline to file were extended to 60 days after has continued to largely rule an information or indictment. a defendant’s initial appearance based on the parties’ submissions. At least five magistrate in cases in which a preliminary Magistrate Judge Cave judges in the Southern District hearing would otherwise have discussed the unique challenges heard such motions from the been required between April 27, of conducting settlement government, and in each case, 2020 and June 15, 2020. See conferences remotely. While after finding that the requirements Standing Order, In re Coronavirus/ she has held most settlement of Rule 5.1(c) and the Speedy COVID-19 Pandemic, No. 2020- conferences by telephone, she Trial Act, respectively, had been 15 (E.D.N.Y. Apr. 21, 2020). has given the parties the option met, extended the preliminary As a result, there has not been a to arrange videoconferencing, hearing deadline and continued noticeable increase in preliminary which facilitates the face-to-face the indictment or information hearings in criminal cases during interaction that is often helpful in deadline. the pandemic, and with grand settlement negotiations. Whether For example, in finding that juries beginning to sit again in by video or by telephone, “extraordinary circumstances” June – albeit with additional Magistrate Judge Cave employs a existed to justify an extension of procedures in place to protect mechanism to speak with each side the preliminary hearing deadline, the health of jurors and potential separately and to allow the parties Magistrate Judge Gabriel jurors – the temporary urgency to confer confidentially with their Gorenstein looked not only to with respect to preliminary counsel outside her presence. the chief judge’s findings in hearings and indictments appears As a result, despite the remote the various standing orders, but to have abated. See Alexandra nature of the conferences, she also to impediments specific to M. Gross, COVID-19 Judicial has been impressed with parties’ the case, such as the inability of Task Force Proposes Protocols willingness to negotiate and, in out-of-state witnesses to travel to Reinstate Jury Trials, Nat. some cases, reach agreement. to appear at the hearing and a L. Rev. (Jun. 17, 2020), https:// Each of the judges has taken shortage of interpreters. See www.natlawreview.com/article/ a slightly different approach Order, United States v. Carrillo- covid-19-judicial-task-force- to extensions – for example, Villa, No. 20MJ3073 (UA) proposes-protocols-to-reinstate- Magistrate Judge Bulsara has (S.D.N.Y. Apr. 2, 2020). jury-trials. entered extensions on a case- Judge Gorenstein also found by-case basis, while in March, that the circumstances satisfied Civil Cases Magistrate Judge Cave entered the less demanding “ends of 30-day extensions in each case justice” standard under the The transition to remote in which she was supervising Speedy Trial Act. Id. proceedings has been simpler for pre-trial proceedings – but all Magistrate Judge Barbara civil proceedings. Judge Oetken described accommodating such Moses made similar findings in described how the pandemic requests. Even so, the judges a separate case and also granted interrupted a bench trial that was noted that discovery disputes have the government’s application, in progress at the end of March, not abated, and that practitioners extending both deadlines by for which he received the final have needed additional 30 days. See Order Extending two witnesses’ testimony and encouragement to conduct Preliminary Hearing Date and closing arguments in writing. depositions via videoconference. Federal Bar Council Quarterly June/July/Aug. 2020 24

It was noted that, with the backlog during telephone arguments, 1, 2020). See https://www.ca2. of criminal cases awaiting trial, often to the point of counsel uscourts.gov/. civil jury trials seem unlikely to interrupting the judge, and thus In connection with telephonic resume until 2021, which has led reminded practitioners to strive to arguments, Judge Droney offered some of the judges to prepare for maintain a professional demeanor several helpful suggestions to additional bench trials this fall, during telephone conferences. practitioners. and to encourage settlement. To mitigate this problem, Judge First, counsel does not The judges offered Cogan often advises the parties at have the benefit of the lights on suggestions to practitioners the beginning of a conference that the lectern to show remaining appearing remotely. As usual, each counsel will be afforded an argument time, and thus must be consulting each judge’s opportunity to speak, which can prepared to monitor their own individual practices is the best allay practitioners’ apprehension argument time. first step, as some judges have that they will not have a chance Second, in the absence of adopted practices specific to the to be heard. visual cues from the judges pandemic. See, e.g., Emergency Finally, the judges noted themselves, Judge Droney Individual Rules and Practices parties’ reluctance to exchange encouraged counsel to pause in Light of COVID-19 of The exhibits before depositions and after a judge’s question, to make Honorable Jesse M. Furman, conferences, at the risk of losing sure the complete question has United States District Judge. the “element of surprise.” The been posed, and to pause after The judges reminded judges encouraged practitioners an answer, to allow the judges to practitioners appearing on video to set aside typical inhibitions interject additional questions and to be attentive to professional and instead consider the benefit comments. dress and background, and for of ensuring a smooth proceeding Finally, counsel should not those appearing by telephone by sharing exhibits in advance, expect that their argument time to identify themselves before including providing hard copies will be extended, and should speaking to ensure a clear record. to the court. manage their time accordingly. Effective advocacy in remote proceedings requires a new Second Circuit Proceedings Conclusion aptitude for the requirements of technology – first and foremost, Judge Droney addressed Despite extraordinarily eliminating background noises. proceedings in the Court of challenging circumstances, the (Some of the judges reported Appeals for the Second Circuit. courts in the Second Circuit have regular interruptions from dogs, On March 16, 2020, all filing adapted to remote proceedings, landscapers, and clock chimes.) deadlines through May 17, 2020 with the cooperation of Mastering remote technology were tolled by 21 days unless practitioners and parties and the also requires facility in displaying otherwise ordered. Effective diligent efforts of court staff, to and discussing exhibits. Judge March 23, 2020, the Second ensure that both criminal and Cogan, in particular, noted the Circuit began to hear all oral civil cases continue to progress. importance of counsel taking the arguments using a teleconference The hallmarks of this cooperation time to point out to the judge and platform, and arranged for audio between the bench and bar the other parties the page and line livestreaming to the public. The throughout the duration have they are discussing during their paper-copy filing requirement been flexibility, patience, and argument. was also suspended, so that kindness, which are virtues that Judge Oetken and Magistrate all filings have been electronic will no doubt be necessary as the Judge Cave have noticed an (although the paper-copy filing courts move toward reopening in increase in inter-party squabbling requirement resumed on July the coming months. 25 June/July/Aug. 2020 Federal Bar Council Quarterly

In the Courts Judge Halpern graduated aiming for a job in the golf industry, from Archbishop Stepinac High which was (and is) his passion. Philip M. Halpern School in White Plains, and Fortunately for Judge Halpern, in Fordham University College of 1976 the Pace Law School (now Joins the Southern Business (now the Gabelli School the Elisabeth Haub School of Law District Bench of Business), where he earned a at Pace University) was founded B.S. in economics, magna cum in White Plains. Judge Halpern By U.S. Magistrate Judge Lisa laude, in 1977. As Judge Halpern successfully applied to this new Margaret Smith approached his graduation from law school, and was able to attend Fordham he was working at a while continuing his work at the golf course near White Plains, and golf club, which was just eight he had settled on the twin goals miles from the Pace Law School of continuing his education and campus.

Philip M. Halpern was confirmed to serve as a U.S. District Judge in the Southern District of New York on February 12, 2020. He was sworn in quietly on March 10, 2020 by Chief Judge Colleen McMahon of the Southern District; a formal and public swearing-in ceremony will take place in the future. Judge Halpern was raised in Tuckahoe, in Westchester County, but he and his family had the good fortune to travel quite a bit when he was a child, because of his father’s job working for Mobil Oil; he designed computer programs and taught Mobil employees worldwide how to use them during the 1960s. This gave the judge an opportunity to live for several years in both Melbourne, Australia, and London, England, and to experience parts of the world that he otherwise would not have experienced. Judge Halpern Federal Bar Council Quarterly June/July/Aug. 2020 26

Judge Cooper’s Clerk at the Elisabeth Haub School of Legal History Law, teaching “The Anatomy of Judge Halpern commenced a Trial: The Burden of Proof,” The Most Publicized his legal career in a highly-sought which deals exclusively with trial after clerkship for then Senior skills. His book, “The Burden of Trial in History, and District Judge Irving Ben Cooper Proof,” has just been published the Case with Perhaps of the Southern District of New by the American Bar Association. York. Judge Halpern credits In light of his familiarity with the Most Legal Errors Judge Cooper with teaching him issues pertaining to the burden many of the skills needed to of proof, Judge Halpern expects By C. Evan Stewart competently represent a client in counsel to address those issues, a courtroom. One result of Judge and the appropriate standards of Halpern’s clerkship was that review, in a straightforward and Judge Cooper planted a seed in the clear manner. heart of the young Phil Halpern Judge Halpern has been that grew to a determination to married to his wife, Carolyn, become a federal district court for more than 31 years, and they judge. have three grown children. His Judge Halpern’s career passions are first his family, and before the bench lasted nearly 40 then his work and golf, although years, exclusively as a litigator it is not completely clear in which in trial and appellate courts. order those last two come. Certainly every lawyer in His practice took him to many Judge Halpern describes his the Second Circuit, let alone in states and many federal district desire to become a district court America, remembers his or her courts, representing individuals, judge, which survived his years reaction when a Los Angeles jury, corporations, and Fortune 500 as a litigator, as being the result on October 3, 1995, acquitted O.J. companies, and, according to of his watching Judge Cooper Simpson of the murders of his Judge Halpern, he “enjoyed every work in “the greatest job in the ex-wife, Nicole Brown Simpson, minute of it.” He believes that world.” Judge Halpern observed and her friend, Ronald Goldman, his experiences have informed how Judge Cooper thoroughly at Simpson’s ex-wife’s home on his preferences on what he enjoyed each and every day; June 12, 1994. The entire eight expects from attorneys who will how Judge Cooper’s intensity of month trial had been broadcast on appear before him. He respects decision-making consumed him; television, with breathless 24/7 those attorneys, and knows how and how Judge Cooper stood up media commentary. challenging their calendars and to whatever issue arose, and did O.J. Simpson was a workloads can be. He expects what he believed was right. charismatic Hall of Fame football counsel to raise their concerns Judge Halpern wants player turned actor. Knowing he efficiently and effectively, in attorneys and parties who appear was going to be arrested for the order to allow him to resolve before him to know that he feels brutal double murders, Simpson their problems. extremely fortunate to have been had fled in a white Bronco, owned appointed a district court judge. and driven by his friend A.C. Trial Skills He says, “I am living my dream Cowlings. Spotted on the Los and intend to do my level best to Angeles freeways, the Bronco In addition to his career as uphold the oath I took, one case was soon converged upon by the a litigator, Judge Halpern has at a time, and one day at a time.” city’s police department. served as an adjunct professor Cowlings warned them 27 June/July/Aug. 2020 Federal Bar Council Quarterly not to do anything precipitous, son on his wife – between what was clearly a crime of shouting: “Put away your guns. 1985 and 1988, the police passion – Nicole Simpson He’s in the back seat, and he’s had been called to Simpson’s was stabbed seven times in got a gun to his head.” That led to home eight times (on one of her neck and scalp, with one an hours’ long, freeway parade of them his wife was in a car, of her wounds being a slash the Bronco being followed by a crying, with the windshield to her throat which nearly string of police department squad having been smashed by a severed her head; Ron Gold- cars in its wake – a spectacle baseball bat wielding Simp- man was stabbed approxi- that was broadcast live across son) – in 1989, a 911 call mately 30 times (and not only the country and watched by an brought police again to the was there nothing taken from estimated audience of 95 million house, where they found Ni- Nicole Simpson’s home – her people. cole Simpson, who emerged children were asleep in the During the “chase,” a note from the bushes, with her lips house – only a very strong just written by Simpson was cut and bleeding, a black and person could have inflicted publicly disclosed by a friend of blue left eye, and a clear hand such brutal and fatal injuries); imprint on her neck (“He’s his; it concluded with: “Don’t feel (3) Simpson, who had no ali- going to kill me! He’s going sorry for me. I’ve had a great life, bi, failed a polygraph test, and to kill me!”) (for this incident, great friends. Please think of the failed it spectacularly – with a Simpson pled “no contest” real O.J. and not this lost person. score lower than -6 constitut- to a misdemeanor of spou- Thanks for making my life special. ing lying, Simpson scored a sal abuse) – in October 1993 I hope I helped yours.” -24 (this test, administered by (less than eight months before Ultimately, the “chase” ended his own legal team, was never her murder), Nicole Simpson back at Simpson’s home, with before the trial court or jury); Simpson surrendering and saying: made another 911 call; while “I’m sorry, guys. The only person she pleaded for 13 minutes (4) Every drop of blood – at who deserves to be hurt is me.” for the police to come, Simp- the crime scene, at Simpson’s Inside the Bronco was Simpson’s son (who had broken down home, on and in Simpson’s travel bag, in which was found his ex-wife’s door to gain en- car, on two gloves (a match- his passport, a fake goatee and trance) was recorded as say- ing pair, one found at the mustache, a supply of fresh ing: “I’m leaving with my crime scene and one found clothes, and a fully loaded Smith two fists is when I’m - leav at Simpson’s house), and on & Wesson handgun. In addition, ing.”) – and on June 7, 1994, Simpson’s socks – belonged Cowlings had $8,750 in cash, five days before her murder, to Nicole Simpson, Ron which he said was Simpson’s. Nicole Simpson called the Goldman, Simpson, or some Sojourn Battered Women’s combination of all three (e.g., The Evidence Shelter in Santa Monica, Nicole Simpson’s blood was asking for help because she found in Simpson’s house, Simpson’s conduct, his note, was being stalked by her ex- Ron Goldman’s blood was in and his statement upon arrest, all husband, O.J. Simpson (this Simpson’s car); seemed to indicate consciousness report was ruled to be in- (5) More specifically, of three of guilt. What else pointed to him admissible hearsay, and the blood drops next to footprints being the murderer? Only, among criminal jury never heard it); at Nicole Simpson’s house, other things, the following: (2) Even without that last bit only one out of 240,000 peo- of evidence, the long pattern ple had a DNA match (and (1) There was a long pattern of abuse was highly relevant Simpson was one); of another of domestic abuse by Simp- given the brutal nature of blood drop at the same spot, Federal Bar Council Quarterly June/July/Aug. 2020 28

only one in 170 million people made by someone between fice had lost a number of high had a DNA match (and Simp- 6 feet and 6 feet 4 inches tall profile cases: the first Menen- son was one); of blood found and weighing approximately dez brothers trial (accused of at the rear gate of Nicole 200 pounds (Simpson: 6’1”, murdering their parents); the Simpson’s house, only one 210 lbs); Michael Jackson trial (child out of 57 billion people had a (13) Simpson had no expla- abuse); the McMartin Pre- DNA match (Simpson again) nation for the deep cut to one school trial (child abuse); and (this data came from two dif- of his left knuckles (Simp- the Rodney King trial (police ferent crime laboratories uti- son did tell police he had cut brutality). With the plethora of lizing different techniques); himself on the night of the evidence they possessed, per- murder, but he had “no idea, haps the district attorney and (6) The black knit cap found man” how it happened; he his colleagues thought they at Ron Goldman’s feet had also told them he had not cut could win anywhere. So rather than conduct the trial in the hair fibers that matched himself the last time he said Santa Monica District of Los Simpson’s (as did hair found he had been at his ex-wife’s Angeles County (where the on Goldman’s shirt); home, a week earlier); and murders occurred), Garcetti (7) Hair from the bloody (14) At the time of the mur- (up for re-election in 1996) glove found at Simpson’s ders a witness had had her car decided that the trial would home matched Nicole Simp- cut off by a car hastily leav- take place in the South Central son’s hair; ing the crime scene, with the District of the county – i.e., (8) Fibers from the shirt driver yelling: “Move your in downtown Los Angeles, Simpson wore the night of damn car! Move it! Move where the jury pool would be the murder were found on it!” – she recognized the made up primarily of African- the same glove, on Simpson’s driver as O.J. Simpson, took Americans, likely to be favor- socks, and on Goldman’s down the license plate num- able for Simpson. Harshly shirt; ber (Simpson’s car), reported criticized (especially in hind- the incident to the police after (9) Carpet fibers from Simp- sight) for this venue decision, learning of the murders, and son’s car matched those Garcetti gave a series of dis- testified about what she had found on the knit cap and on sembling responses, most of seen to the grand jury. the bloody glove at Simp- them flat out false (e.g., the son’s house; court had made the decision; What Went Wrong? trials lasting longer than two (10) The bloody gloves were months had to be tried in the a very unusual style, sold only With all that (and a lot more), downtown courthouse). In any at Bloomingdale’s in New one might wonder how things event, this fateful decision was York City – Nicole Simpson turned out the way they did. As then magnified by the process had bought two extra large the title of this article suggests, of jury selection. sized pairs in 1990, and only the lawyers prosecuting the case approximately 200 had ever made a lot of mistakes; the most • Jury Selection been sold in that size; material of those mistakes were: And it was not that the district (11) The bloody footprints of attorney’s office had been un- the killer were from size 12 • Venue aware of the downtown jury Bruno Magli shoes – a type Prior to the Simpson case, the pool issue. With the help of a and size that Simpson wore; Los Angeles District Attor- well-known jury consultant, (12) The footprints were ney (Gil Garcetti) and his of- the office had held a number 29 June/July/Aug. 2020 Federal Bar Council Quarterly

of focus groups, demographi- matter.” The result? The said would also have made cally made up of the likely jury ultimately selected to some of the police-racism jury pool. The results were hear the evidence, deliber- conspiracy theories woven not good, to say the least – the ate, and decide Simpson’s at trial impossible to be ad- African-Americans believed fate was comprised of eight vanced. In addition, the jury Simpson was innocent, not- African-American women, would have heard Simpson’s withstanding the evidence; one African-American man voice, contemporaneous with and the African-American (inexplicably, a former Black the murders (contradicting, women were particularly “vo- Panther), one Hispanic man, changing answers, hesitant, ciferous” in their support of and two white women. Simp- ungrieving) – as opposed to Simpson. Not only were they son’s lead lawyer, Johnnie the silent, yet well-rehearsed not affected by the history of Cochran, reportedly had said: Simpson with whom the jury domestic violence (“every re- “Give me one black juror, and spent eight months. Finally, lationship has these kinds of I’ll give you a hung jury.” the jury learned of the police problems”), they also hated Now he had nine. Even Clark tape, but not having heard the lead prosecutor, Marcia herself (later) described the it allowed them to specu- Clark; as the jury consultant process as “this [expletive] late that the tape exonerated reported, they described her jury pool from hell.” Simpson (something Cochran with such words as “shifty,” invoked in summation). “strident,” and “bitch, bitch.” • Evidence Not Used Second, the prosecution (in- The consultant reported all credibly/inexplicably) failed that to Garcetti, Clark, and With these seemingly insur- to put in anything regard- others in the prosecutor’s mountable obstacles, was ing Simpson’s white Bronco office, adding that the - Afri there any hope of gaining a “chase.” As set forth above, can-American women “saw conviction? Who knows; but Simpson’s attempted flight [Clark] as a pushy, aggressive, one thing is sure: the prosecu- from arrest, statements made white woman who was trying tion continued to make mat- both during (when he also to bring down and emasculate ters worse, particularly in the called his mother and report- a prominent black man.” trial itself by what incriminat- edly told her: “It was all her ing evidence it did not present Given that feedback, not only fault, Ma.”) and after, the to the jury. Four stand out: should the district attorney materials Simpson had in have reconsidered having First, the prosecution had a his possession, etc., were all Clark lead the trial team, but 32 minute police interview powerful evidence of con- the consultant’s unwaver- on tape with Simpson from sciousness of guilt. Yet, none ing conclusion – that “black the day after the murders (for of it was put before the jury. females were the worst con- some reason his then-lawyer Third, the prosecution never ceivable jurors for the pros- allowed this to happen, and used Simpson’s “farewell” ecution in the Simpson case” without him present!). While note. Composed shortly be- – should have been heeded. the interrogation was less fore his flight to avoid arrest Instead, Clark, hating the than stellar interrogation, (during which he had placed messenger, banished the con- Simpson did make a number a gun to his head), it sure sultant and decided to follow of extremely incriminating sounded like further evidence her “gut” – that she “could statements (e.g., cutting his of him acknowledging his talk to women,…reach them hand the night before and guilt (and his desire not to somehow…. White, His- bleeding in his car and in his face justice for his brutal ac- panic, Asian, Black, it didn’t house that night); things he tions). But the jury never saw Federal Bar Council Quarterly June/July/Aug. 2020 30

it. (Simpson’s note and the ist statements, about which subject him to rigorous prep- “chase” – Simpson’s own ac- the prosecutors were aware. aration, confront him with his tions – would also have gone And Jeffrey Toobin had writ- various statements and other far to undercut the defense’s ten an article in the July 22, allegations of racist state- conspiracy theme of police 1994 New Yorker in which ments, and inoculate him racism.) he reported that Simpson’s from attack? They did not. Last, and certainly not least, lawyers were going to por- So, Fuhrman went in unpre- tray Fuhrman as a racist who Jill Shively – the eye witness pared and on cross-examina- planted the bloody glove at tion, lied: of Simpson’s driving away Simpson’s house. from his ex-wife’s home at Q: And you say under oath the time of the murders – did With that as prologue, the that you have not addressed not testify! Because Shively prosecution moved to ex- any black person as a n----- or had sold her story to a televi- clude any reference to racist spoken about black people as sion tabloid show for $5,000, bias on Fuhrman’s examina- n------in the past 10 years? Clark – later calling it a mat- tion under California’s evi- A: Yes, that is what I’m say- ter of principle – angrily de- dence code (Section 352). ing. cided that Shively’s action Judge Lance Ito correctly ruled that there could be Q: So that anyone who comes “made her personally useless to this court and quotes you to the government.” Certainly nothing on that score unless the defense could offer proof as using that word in deal- Shively’s action was ill-ad- ing with African-Americans vised, but there were obvious that Fuhrman in fact did plant the glove (of which there was would be a liar, would they ways to inoculate her from an not, Detective Fuhrman? obvious cross-examination none). Three days later, how- attack. Instead, because of ever, Ito reversed himself and A: Yes, they would. Clark’s pique, the jury never ruled that Fuhrman could be Q: All of them, correct? crossed on whether he had heard this key piece of the A: All of them. puzzle. used the N-word at any point in the past 10 years. The defense could now show that Fuhrman was both a liar • The Race Card The trial was now at a criti- cal crossroad because of Ito’s and a racist. And they did, Everyone knew that the Los error (unfortunately, just one most spectacularly with tapes Angeles Police Department’s of many); and the prosecution a screenwriter had made in difficult history in race- re chose the wrong fork(s). Pros- 1988 with Fuhrman; the tapes lations might well play an ecutors could have sought an included a plethora of racist important role in the trial. immediate appeal of Ito’s sec- vulgarities from Fuhrman’s Indeed, after the trial, one of ond ruling. Fearing he would lips, including the N-word 41 Simpson’s lawyers, Robert be mad at them, however, the times. Shapiro, told Barbara Wal- prosecution decided not to With those tapes, the race ters: “We not only played the appeal (even Clark later ad- card had truly been played. race card, we dealt it from the mitted that was a very bad Fuhrman was immediately bottom of the deck.” And well error in judgement). But now cut loose by the prosecu- before the trial started, it was with Fuhrman a key witness tors; they refused to speak clear that the focus would be and clearly going to be open with him (or even return his on Detective Mark Fuhrman. to racist attacks, did Clark or phone calls). As such, when Fuhrman had a well-doc- her colleagues (knowing of Fuhrman was called back umented history of rac- Fuhrman’s past statements) by the defense – with no as- 31 June/July/Aug. 2020 Federal Bar Council Quarterly

surance that the prosecutors demonstration, where the most famous phrase of his would attempt to rehabilitate prosecutors had Simpson try legal career: “If it doesn’t fit, him (which they could have on the bloody gloves – one you must acquit.” – there were a number of found at the murder scene, the And that is precisely what the Los Angeles Police Depart- other at his home – in front of jury did, “deliberating” for ment minority officers who the jury. four hours. After the verdict had worked with Fuhrman At a sidebar, Clark had noted was read, the former Black and were willing to testify he that there might be a problem: Panther juror, in open court, was not a racist, had a police “He has to wear latex gloves gave a Black Power salute! record free of racial bias, and underneath . . . and they’re was a good policeman who going to alter the fit.” Another Postscripts was scrupulous in handling problem was that the gloves, evidence) – Fuhrman took the soaked in blood, had shrunk. Simpson did not fully escape Fifth Amendment to all the A third problem was that the justice. He lost a civil wrongful questions posed to him. This demonstration was being death suit brought by the families Fifth Amendment spectacle turned over to the control of of his ex-wife and Goldman. And, was, as Clark later wrote, a Simpson himself. Thus, there in 2008, he was convicted of disaster; and she compound- was a terrible trifecta, under- armed robbery, kidnapping, and ed the disaster by telling the scoring what any first year conspiracy in Nevada; Simpson jury she was “disgusted” with law student should know (let was released from prison on Fuhrman (a key witness for alone what every experienced October 1, 2017. her case) and “wish[ed] there trial lawyer does know): Nev- Oprah Winfrey once said were no such person on the er try a demonstration in front that one way to delineate an planet.” But the whole mess of a jury unless you know it is inappropriate potential suitor is (a) could have been avoided going to work. if the potential suitor believes by taking an immediate ap- Simpson did not do it. So Simpson, by now an ex- peal of Ito’s improper ruling; Of the mountains of material perienced movie and televi- (b) could have been neutral- written on the Simpson case, sion actor, walked over to the ized by proper witness prep- the best continues to be Jeffrey jury box as he “tried” to put aration (i.e., admit to prior Toobin’s “The Run of His Life: on the gloves. Keeping his racist statements on direct, The People v. O.J. Simpson” thumb bent at a right angle to put them into some kind of (Random House 1996). For those his wrist (ensuring the glove context (that they applied who want a detailing of all the only to hardened criminals), could not fit on his hand), errors by the prosecution, as well and cut-off a parade of im- Simpson grimaced and testi- as those by Judge Ito (and the peaching defense witnesses fied in front of the jury (but not-edifying tactics and strategies on Fuhrman’s past, including not under oath) “too tight” of Simpson’s counsel), the the tapes); and (c) could have (others heard him also say best book is Vincent Bugliosi’s been mitigated if the pros- “they don’t fit”). “Outrage: The Five Reasons Why ecution had recognized that it Clark (who had approved O.J. Simpson Got Away With was their duty to rehabilitate of this demonstration) later Murder” (W. W. Norton & Co. Fuhrman. wrote that she said to her- 1996). An excellent overview of self: “That’s it we just lost the whole imbroglio is a chapter • Trying On The Glove the case.” And, of course, in Glenn Altschuler and Faust Last, but certainly not least, this monumental screw-up Rossi’s wonderful book “Ten came the infamous glove allowed Cochran to coin the Great American Trials: Lessons Federal Bar Council Quarterly June/July/Aug. 2020 32 in Advocacy” (American Bar Character of Thomas Jefferson”; complicated historical events, his Association 2016). and the national best-seller books are more akin to epic page- When the Simpson criminal “The Quartet, Orchestrating the turners than dusty textbooks. trial was first being teed up, I Second American Revolution, Ellis’ books are generally was speaking to a law school 1783-1789.” rather short. Ellis does not waste classmate who is a very prominent Ellis is a ubiquitous presence words. Instead, he gets right to the lawyer in Los Angeles. I will on various PBS and History point of his argument or assertion; never forget what he told me: Channel documentaries as well, no flowery language needed. As Because of the venue decision including the History Channel’s lawyers are typically forced to and the basic competence of the recent series on George deal with strict page limitations local prosecutor’s office, a hung Washington. in their briefs and submissions to jury would be the best result Ellis has taught in the the court, Ellis’ writing provides achievable. He was right. Leadership Studies program a roadmap to follow for clear and at Williams College, the concise writing that strikes right Commonwealth Honors at the heart of the issue. The Interview College at the University of Editing is, of course, critical Massachusetts, Mount Holyoke for effective writing. According College, and the U.S. Military to Ellis, many historians fall into A Chat with Historian Academy at West Point. the trap of “essentially reporting Joseph J. Ellis The Federal Bar Council on the research” that they have Quarterly recently interviewed conducted, rather than focusing By Joseph A. Marutollo Ellis regarding his scholarship, on the key question: “What is the his writing, and his insights for story?” According to Ellis, “if you lawyers. spend a year gathering a great deal of evidence” on a particular The Writing Process topic, “you can’t resist wanting to tell people everything you’ve While Ellis’ works make found, and that creates a series of good writing look easy, he extraneous asides” in your writing. explained that his writing process Ellis remarked that he routinely is quite arduous. He noted that “throws away about one-third to a single, well-written paragraph one-half of [his] notes at the end” in one of his books can take of his book drafts, because, at weeks at a time to perfect. Ellis the time he is doing research, he stressed that successful writers does not necessarily know where must know their audience. the story is going. In short, Ellis Joseph J. Ellis is one of the Many professional historians, is not interested in showing how United States’ most distinguished for instance, often write only much work he has done, but rather historians and authors. Ellis has for other professional historians. is interested in explaining “the written a host of books on the Ellis’ objective, however, is to story” in his book. American Revolutionary era, write for the public at large. Ellis including the Pulitzer Prize- envisions writing for students Editing the Constitution winning “Founding Brothers: who are smart, but who do not the Revolutionary Generation”; necessarily know anything about And, interestingly, good the National Book Award- the subject at issue. As a result, editing is at the foundation of winning “American Sphinx: The despite addressing dense and the Constitution itself. As Ellis 33 June/July/Aug. 2020 Federal Bar Council Quarterly wrote in “The Quartet,” “while in the draft preamble, Ellis notes Convention studied law, Ellis the Constitution was clearly the that Morris “single-handedly cautioned that we should not creation of many hands [delegate chose to change that to ‘We the necessarily over-emphasize the Gouverneur] Morris was the man People of the United States.’” As role of professional lawyers in who actually wrote it.” Although Ellis explains, “[i]n retrospect, the creation of the Constitution. the Committee on Detail at this was probably the most While the Founders’ legal the Constitutional Convention consequential editorial act in background was helpful in had written “We the people of American history.” understanding English common the states of New Hampshire, Additionally, while 29 of the law and the basic framework Massachusetts, Rhode Island…” 55 delegates to the Constitutional for the law, the most powerful faction at the Convention were “retired officers from the Continental Army.” These Founders’ experience in the war – “where they saw the inability of the Confederation Congress to provide the support that the army needed” – was far more important than any legal training that they may have experienced. Ellis remarked that despite all of the current unrest around the country, he takes heart in the enormous success of shows like “Hamilton,” which he described as “absolutely wonderful.” He glowingly added that many of his students now routinely quote lines from “Hamilton” about the origins of our constitutional system as if they were quoting from “Harry Potter.”

A New Book

Ellis is working on a new book, “The Cause,” about the 1770s. This book will effectively complete his trilogy on the 1770s, 1780s (the focus of “The Quartet”), and 1790s (the focus of “Founding Brothers”). Ellis’ strong writing is a great model for lawyers eager to learn more about the Revolution and further Joseph J. Ellis hone their writing craft.