Historical News

The Historical Society of the U. S. Courts in the Eleventh Circuit 11th Circuit Historical News

Volume XII, Number 3 http://sites.google.com/site/circuit11history Winter 2015 A marvelous life: The Story of Judge Peter T. Fay By Deborah J. Gander Editor’s note: This article is based on a two-day interview of Judge Fay conducted by Dean C. Colson and Deborah J. Gander in December 2014.

Peter Thorp Fay describes his his brother, Jim, was two-and- life as one of “happy accidents,” a-half years younger. Pete led which fairly communicates that a happy life, unaffected by the his life has been both charmed deep poverty he, his family and in ways that seem almost so his country were struggling far-fetched they could only be through in those years. fiction, yet also peppered with “Everyone was poor,” he said, so devastation, disappointment and he thought nothing of it. “You sometimes deep-seated fear. literally lived on pennies, and Judge Fay has lived through the nickels and dimes.” times that defined our nation over His father moved the family nearly the past century, and he to one of three homes on Rio has been shaped by these events Vista Isles, now the location in amazing ways. Each of these of multimillion-dollar homes events inevitably led to the next but back then just a remote series of encounters; had even one area of Fort Lauderdale that been missing, might the whole the neighborhood paper boy story have turned out differently? did not want to service. So the Fay’s life began Jan. 18, 1929, paper boy subcontracted Pete, in Brighton, N.Y., a suburb of a third-grader, and gave him Rochester, and he might have 10 cents per week to ride his remained there had the Great bike up and down the island for Depression not devastated three hours a day delivering the his father’s insurance business Fort Lauderdale Daily News in and wiped out everything the Clockwise from top left: The Fay family, circa 1970, with the afternoons, and the Miami Mike, Pat, Pete, Darcy and Billy; Judge Fay introducing Herald at 5 a.m. on Sundays family had. His dad, showing the President Ford in Miami Beach during a swearing-in excellent judgment his son would ceremony for thousands of new citizens in the mid- (requiring him to be up by 4:30 inherit, decided that, if his family 1970s; Fay at work with the Air Force in 1953; from left, to start on time). Hard work must start over with nothing, Bill Frates, Ray Pearson, Pete Fay and, seated, Bob Floyd started early, but it paid off. Life it may as well do it someplace on the night in 1968 that Fay became a limited partner in was good. sunny. In the mid-1930s, they the Miami Dolphins; from left, Pete and Pat Fay, Richard In what sounds like a tall tale and Pat Nixon, and Bill Hicks on Key Biscayne in the late all moved to Fort Lauderdale, a 1950s; Fay playing basketball for Craig Air Force Base; straight out of “Big Fish” or other very small town with only a few and, in the center, Fay waterskiing barefoot in a show at Hollywood movies, Pete had the thousand permanent residents. Cypress Gardens in July 1950. (From the Fay family photo unbelievably good fortune to Pete was in primary school, and collection) live across the street from world See “Judge Peter Fay,” page 18

Historical News is produced as a courtesy by The Florida Bar. Message from the president Judicial integrity – an international initiative

The International Bar Association extensive 46-question survey was distributed to all IBA commenced an important initiative members to be completed by the end of October. on judicial integrity during the past As the legal world becomes more global and with year. According to the IBA, while cross-border legal matters becoming more prevalent, the vast majority of the worldwide the ethical predictability of a country’s judicial system judiciary conducts its efforts becomes of greater interest to us all. Both the lawyer and “with the utmost integrity and the client need to know how they will be treated by the are tireless in their efforts to fight local court system before they need to use it. If people corruption where it occurs,” in a and businesses are to sell products or invest money, for great many jurisdictions corruption example, they need to know how they will be treated in hampers the judicial process and the courts if they need to access the judicial system to LEONARD H. GILBERT can produce results that pervert collect their money or enforce their contracts. the resolution of disputes and the enforcement of the law. One of the many purposes of the The IBA Initiative will certainly be helpful to all of us, initiative is to encourage impartiality and independence and the IBA is to be congratulated for taking on this in judicial decision-making throughout the world. project to fight corruption and encourage independence and impartiality in the judiciary worldwide. Through the initiative, the IBA will raise awareness in locations where judicial corruption is tolerated, educate the public on the causes and consequences Leonard H. Gilbert of corruption, and promote the highest standards of President integrity among both judges and lawyers within and without these jurisdictions. The IBA will take into account how various countries successfully eliminated judicial corruption as well as what those countries did to prevent IN THIS ISSUE: the recurrence of such conduct. At the IBA meetings in London and Singapore, an The story of Judge Peter T. Fay...... …1 expert panel -- including three chief justices and judges from eight countries, practicing lawyers and senior Message from the president...... 2 government officials -- determined that a worldwide study on the occurrence of judicial corruption has Fishing with Judge Frank Johnson...... 3 never been conducted. The panel directed the IBA The Investiture of Judge Julie E. Carnes...... 5 to commission a survey of its vast membership to determine the interaction among lawyers, judges Ceremony highlights Judge Jill Pryor ...... 9 and other professionals who work with the judiciary. The results of the survey, together with a study of Voting Rights Act of 1965...... 12 the available literature on the subject, will be used to In Memoriam: Douglas J. Mincher...... 13 produce a report on the methods of judicial corruption throughout the world. From the report, the IBA plans In a Peruvian prison...... 16 to develop implementation activities designed to stamp out judicial corruption through efforts in specific Joseph E. Bulgarella appointed bankruptcy court clerk...... 17 individual countries. Discussing the BCCI trial...... 28 The IBA showcased the initiative at its annual meeting in Vienna in October (attended by some 6,000 delegates), Judge Harvey E. Schlesinger honored...... 31 with a panel discussion. The panel recognized the The NCBJ meets in Miami Beach...... 35 importance of an independent judiciary to determine cases fairly and to follow due process and, as a prelude Judicial heroes' courthouses named landmarks...... 36 to distributing the survey, explored many of the known causes of judicial corruption and the best practices to reduce or eliminate it. Following the conference, the

2 Fishing with Judge Frank Johnson By Patrick Sims Editor’s note: Patrick Sims served as law clerk for Judge Frank Johnson in 1974-75 and is now a lawyer in Mobile, Ala.

When Carolyn Cox and I began working for Judge Frank We were anchored in an inside pool in quiet water, Johnson in Alabama’s Middle District in June of 1974, we maybe 100 feet apart. We got our skiff in and its motor soon began hearing him tell stories about fishing “those mounted with no trouble. We then watched as the VIP’s swift waters below the Wilson Dam” in northwest Alabama crew got their skiff in the water, but, as Curtis attempted with the likes of Judge Lecil Gray and Pert Dodd. We to pass the engine to Jimmy in the skiff, the handoff was also came to learn that he was an outdoorsman (having, fumbled and the motor fell into the drink. When the among other things, floated down the Alabama River from Judge and I stopped Montgomery to Mobile) and also a saltwater fisherman. laughing, I paddled Frank Minis Johnson Jr. was a After a while, I let him know that I also enjoyed fishing, over and, since the judge on the U.S. Court and particularly enjoyed making trips involving several water was only about three feet deep, days at Chandeleur Island, which is part of Louisiana, of Appeals for the Eleventh though due south of Biloxi, Miss. As I was finishing my fetched the engine, clerkship, we discussed arrangements for such a trip. brought it back and Circuit until his death in 1999. Central to much of the discussion hereafter is the late was able to get it He also served as a judge on Curtis Caver, formerly deputy clerk and later clerk of the running fairly quickly. Middle District. The Judge had hired Curtis as a deputy When I brought it the U.S. Court of Appeals for in 1973 and relied on him for the rest of his life for many back to the VIP, Jimmy things. reminded us of the the Fifth Circuit and the U.S. verity that it is best District Court, Middle District Chandeleur Island-Phase I to run a wet engine for a while to clear all of Alabama, where he was chief On our first trip to Chandeleur, the Judge and I went the moisture out. So in my boat (a 21-foot Stamas), and Curtis and the Judge’s we got the engine judge from 1966-1979. brother Jimmy traveled in some form of lake boat that mounted on the Curtis had borrowed for the trip and that had no business skiff, and Jimmy began running it around the anchorage. in Gulf waters. I believe it was manufactured by VIP. The This was done deliberately at first, but when it was clear trip involved a great deal of hilarity, when viewed from the that the engine was doing just fine, he became more Stamas crew’s perspective. exuberant, running circles around the two boats, waving First, a brief introduction to the basics: Fishing at his pith helmet, grinning and occasionally giving us Chandeleur, as limited by Judge Johnson’s desire not to middle-finger salutes. The Judge and I were standing and wade fish in the sand and mud, consisted of drifting in watching all of this quietly. As it unfolded, I leaned over small skiffs over the then hugely expansive grass beds on and said to him, “Judge, I bet they sink that thing again the west side of the island, with ventures now and then before this trip is over.” He thought about it for a second, into the myriad bayous and cuts. That required, of course, spat his Levi Garrett deliberately, and said, “Hell, Pat, I getting the skiff to the island, along with an outboard think they’re gonna sink it before the sun goes down.” motor and needed accouterments. Jimmy soon decided that all the moisture was out of the On this first trip for him, Curtis had borrowed all of that, engine and headed back to the VIP. I cannot really fault and for safety also had aboard an enormous blown-up him for what happened next, because when operating a inner tube, probably from a Boeing 707 or the like. hand throttle on a small outboard while looking forward, it is sometimes difficult to remember which wrist turn is We launched at Pascagoula and traveled without fast and which is slow. In any event, as Jimmy approached difficulty to the west end of Horn Island, where problems the VIP, intending to slow down, he sped up radically. The soon arose. We headed out on the 15-mile leg across the result was that the skiff’s bow climbed the side of the big Gulf from Horn Island to the north end of Chandeleur. It boat, the skiff’s stern fell low, and the skiff, its motor and was not that rough, but neither VIP crewman could figure Jimmy disappeared. out how to navigate the light seas. After a few miles, they simply gave up and beckoned for us to come and assist. So the rescue unit sprang back into action. But this time The Judge and Jimmy swapped boats, and the Judge got the engine had sunk while running, which meant it had control of the VIP, down to and around the north end of sucked in some seawater. After an hour or so of trying to the island and down the west side the eight miles or so to get it cranked, the Judge and I gave up. All fishing on that our anchorage. There the fun began. trip consisted of our skiff towing Curtis and Jimmy in theirs around the flats.

3 Judge Frank Johnson, continued

Except for this first trip, sleeping was aboard the boats. and terns, the occasional magnificent frigatebird, and On this trip, because the VIP had no sleeping quarters, sometimes in the late fall endless flocks of ducks. Once Curtis had brought a large tent, which we set up near our his long cast entangled a floating pelican, and he quickly anchoring pool. The dominant mammal on Chandeleur announced that the possible loss of the creature “had was the raccoon, which had no enemies when it reached ruined my trip.” We were able, though, to paddle the skiff adult size and was not particularly concerned about over and gently release the great bird, to his visible relief. humans. Sleeping in the tent was fitful because of the Other, smaller, natural events intrigued the Judge constant scratching of the raccoons on the sides of the as well, like finally resolving the mystery of why large tent and their noises made in attempting to open our ice bumblebees were congregating at the Stamas (they were chests. About 2 a.m., Jimmy suggested that the problem there to capture the yellow flies, which were there in would be solved if he “fired off a few rounds” from the pursuit of their human prey). And he found particularly pistol he had brought, but the Judge told him to let the amusing the gathering of catfish on the surface at the side natives be. of the boat to aid in cleaning the eggs and grits off the breakfast plates. After this trip was concluded, the Judge and I went back on a number of trips in my Stamas. The Judge never The Judge never talked “shop” with me. Over the seemed that concerned about catching a lot of fish. He course of a number of these trips, he mentioned only one seldom took any cleaned catch home to Montgomery. My pending case, a particularly difficult death penalty case. sense was that those trips meant relaxation and a chance He gave a long explanation about it as we drifted during to appreciate the wildlife. And he truly appreciated the a slow-fishing afternoon. He didn’t ask for any comments. Chandeleur wildlife; first the birds — the pelicans, gulls See “Judge Frank Johnson,” page 23

At Bill’s Fish Camp, Suwannee, Fla., in October 1992. From left: Buster Asmus, Bobby Black, Joel Dubina, Earl Moorer, Frank Johnson, Lanier Anderson, Gerald Tjoflat, Curtis Caver and Pat Sims. (Courtesy of Judge Joel Dubina)

4 The Investiture of Judge Julie E. Carnes By Luther D. Thomas, Retired Clerk of Court, Northern District of Georgia

Photos courtesy of the Eleventh Circuit Court of Appeals. Guerry Redmond, photographer.

The United States Court by her colleagues on the of Appeals for the Eleventh Northern District bench. A Circuit officially welcomed recognized Shakespeare the Honorable Julie E. aficionado, Judge Thrash Carnes to its bench in an quoted the Bard: “All the investiture ceremony at the world’s a stage. And all Elbert P. Tuttle United States the men and women Courthouse in Atlanta on merely players. They have Monday, Feb. 23, 2015. their exits and entrances. Following the playing of a And one man in his time patriotic medley of songs plays many parts.” Judge by the Georgia State Brass Thrash went on to say, Quartet, Chief Judge Ed “I think that you will all Carnes (no relation) opened agree with me that Julie the session. He recognized Carnes’ performance on each member of Judge Julie Judge Julie Carnes is welcomed to the Eleventh Circuit Court of the stage of life has been Carnes’ family, as well as Appeals by family, friends and colleagues during her investiture an extraordinary one.” former United States Sen. ceremony on Feb. 23. Praising Judge Carnes’ Saxby Chambliss, whom the great intellect and will to chief judge thanked for his 20 years of service in the U.S. excel in all that she undertakes, Judge Thrash noted that Senate and House of Representatives. James Hatten, clerk she had also enjoyed good fortune through wonderful of the Northern District of Georgia, then led the group in parents who provided an upbringing that left her with the Pledge of Allegiance. a genuine affection for the people and places of her The first speaker was the Hon. Willis Whichard of Chapel hometown. Hill, N.C. The only person in the history of North Carolina Judge Thrash then recounted some of the highlights of to serve in both houses of that state’s legislature and on Judge Carnes’ career, starting first with her tenure at the both of its appellate courts, United States Attorney’s Whichard represented the Office for the Northern Standing Committee on District of Georgia, where the Federal Judiciary of the she served as head of American Bar Association, that office’s appellate which provides the section for many years. president of the United He described her as an States with evaluations outstanding brief writer of potential nominees to and oral advocate before the federal bench. Having the Eleventh Circuit, whose personally vetted Judge judges highly respected Carnes by reviewing her her for her preparation, work as a judge and by candor and conversational, speaking with numerous down-to-earth style of judges and lawyers with argument. whom Judge Carnes has Explaining that, while interacted, Whichard Judge Carnes takes her seat on the Eleventh Circuit bench. still an Assistant United reported the Standing States Attorney, Judge Committee’s unanimous rating of “well-qualified,” which is Carnes was temporarily detailed to the United States the highest possible rating. Sentencing Commission, Judge Thrash recounted his Chief Judge Thomas W. Thrash, Jr., Judge Carnes’ conversation with Judge William Wilkins, chair of the longtime colleague and her successor as chief judge commission at that time. Judge Wilkins said, “It was a of the Northern District of Georgia, spoke next. Judge great day for the commission when the attorney general Thrash noted the great affection felt for Judge Carnes selected Julie Carnes. She hit the ground running and

5 Judge Julie E. Carnes, continued

However, according to this lawyer, his experiences with Judge Carnes had not at all turned out that way. When that same attorney appears for his first oral argument before her as a circuit judge, he said, he will tell his client that he knows a lot about her “and things look really good. You are about to see the American justice system at its best.” Judge Thrash also provided insight into another aspect of Judge Carnes’ service to the federal judiciary that might be less well-known: her service on the Criminal Law Committee of the Judicial Conference of the United States. Then-Chief Justice William Rehnquist appointed Judge Carnes to that committee in 2005, and Chief Justice John Roberts selected Judge Carnes as chair of the committee in 2007. Judge Thrash repeated some of the praise — offered by judges, nationwide, serving on judicial conference committees — for Judge Carnes’ leadership during that period of time. Judge Thrash concluded by noting Judge Carnes’ amazing ability to serve in these various roles and to serve as the chief judge of the Northern District of Georgia, During his remarks, Chief Judge Thomas Thrash noted the great all the while continuing to maintain an active civil and affection felt for Judge Julie Carnes by her colleagues on the Northern criminal docket. District bench. In his remarks, Chief Judge Ed Carnes spoke of the inevitable name confusion that will occur on the Eleventh overnight began to make very significant contributions to Circuit with two Judge Carneses serving at the same the difficult work the commission had been tasked to do. time on its bench. He humorously cited a footnote in an Julie Carnes was extremely hard-working, and she knew Eleventh Circuit opinion he had authored, in which he the federal criminal code from A to Z. You just cannot beat high intellect and firsthand experience. Julie Carnes had both.” Judge Thrash reported that Judge Wilkins further stated that, as a result of Judge Carnes’ impact on the commission’s work, President George H.W. Bush appointed her to the seven-member commission shortly thereafter. Moving on to the next chapter in Judge Carnes’ professional life, Judge Thrash noted that Georgia advisers to President George H.W. Bush recognized Judge Carnes’ character, experience and ability and recommended that the president appoint her to a vacant judgeship on the Northern District of Georgia’s bench, which he did in 1992. According to Judge Thrash, lawyers who practiced before Judge Carnes consistently used the same adjectives, describing her as “smart, fair, courteous, conscientious, well-prepared and hard-working.” He said that a well-known criminal-defense lawyer had recounted his first appearance in court before her in 1992 in a drug case. Knowing that she had spent her entire career as a prosecutor, was a principal architect of the sentencing guidelines and was a Republican nominee to the bench, the lawyer had been concerned. The lawyer remarked to his client on the way to the hearing that, although he Former U.S. Sen. Saxby Chambliss recommended Judge Carnes to didn’t know much about her, things looked pretty bleak. President Barack Obama for the vacancy on the Eleventh Circuit.

6 Judge Julie E. Carnes, continued said that his own research concluded that neither he nor the trial judge, Julie Carnes, were related within seven degrees. Chief Judge Carnes then referenced comments in “The Almanac of the Federal Judiciary” from lawyers who had practiced before Judge Carnes. He said the lawyers surveyed had described Judge Carnes as “smart, super- bright, always well-prepared, tough when she needs to be, very courteous and judicial, and extremely gracious to everyone.” He stated that there is no better qualification for the circuit bench than having been a district judge, and that no judge on the Eleventh Circuit had ever brought to the circuit bench the level of district court experience that Judge Julie Carnes, with her 22 years on the bench, now brings. Chief Judge Carnes then administered the official oath of office to Judge Julie Carnes, using a Bible that belonged to Judge Julie Carnes’ late father, Judge Charles Carnes. Judge Julie Carnes’ husband, Steve Cowen, held this Bible, and he, along with Judge Carnes’ daughter and son, Kelly and Jeff Campanella, robed the newly invested judge. In her own remarks, Judge Carnes explained the process Chief Judge Ed Carnes congratulates Judge Julie Carnes at the that led to her nomination, noting that, two years earlier, reception following the ceremony. U.S. Sens. Saxby Chambliss and Johnny Isakson had asked if she would consent to their recommending her the hall from her present chambers. Citing several examples to President Barack Obama for a vacancy on the Eleventh of her interaction with and admiration for its judges over Circuit. She expressed her gratitude to President Obama the years, Judge Carnes noted that much of her career as a for the appointment and to Sens. Chambliss and Isakson lawyer was spent practicing before the Eleventh Circuit. for their support and confidence. In a true testament Herself casting a humorous eye at Chief Judge Ed to Judge Carnes’ unimpeachable qualifications, it is Carnes — “he who shares my last name” and “my particularly noteworthy that she was appointed to the Doppelganger” — Judge Carnes recalled how the confusion federal district court bench by a Republican president and between her and Judge Ed Carnes began long ago, when to the federal court of appeals by a Democratic president. she was being vetted for the federal district court judgeship Judge Carnes acknowledged several people who had in 1991. Her father saw a headline that read, “Carnes Being been instrumental in making her career possible, starting Considered for Eleventh Circuit.” Her father “was thrilled” with her first boss, the late Judge Lewis R. Morgan, for whom until he started reading the article and realized the headline she clerked on the old Fifth Circuit; former U.S. Attorney (and referred to Ed Carnes, not his daughter. She related that, later Judge) William Harper, who hired her as an assistant over the years, lawyers have stopped her to compliment her U.S. attorney; former U.S. Sen. Sam Nunn, who supported for witty and beautifully written opinions that were actually her nomination to the Sentencing Commission; Judge written by Judge Ed Carnes. Eventually growing tired of William W. Wilkins, chair of the Sentencing Commission; and correcting these lawyers, she said she had finally decided former U.S. Attorney Larry D. Thompson, who had strongly just to respond, “Thank you. I try real hard.” recommended her for the federal district court bench. Judge Carnes concluded her remarks by thanking her Judge Carnes acknowledged the adjustment inherent husband, children and other members of her family for their in leaving the Northern District of Georgia bench, where support. Noting that her mother’s health did not permit her she had served for 22 years, but said that her appointment to attend the ceremony, Judge Carnes offered special thanks to the Eleventh Circuit was, in effect, a homecoming that to both her mother and father “who gave me a wonderful brought her back, full circle, to the place where she started childhood and adulthood, and whom I credit for everything her legal career and adult life. Judge Carnes said the first oral argument she ever saw was in the Tuttle Courthouse, when good that has ever happened to me in life.” she clerked for Judge Morgan. Not having participated in In closing, she explained that her father, a veteran of moot court in law school, the first oral argument she ever World War II and the Korean War, had worked multiple jobs delivered was done before this same court where she had before using the GI Bill to complete college and law school. clerked. Her office while an assistant U.S. attorney is across In fact, after returning from service in the Korean War, her

7 Judge Julie E. Carnes, continued father had, for a short period of time, been a mail sorter for the post office then located in the same courthouse building at which she now works. Reflecting on that irony, Judge Carnes stated, “Each day, it gives me a smile when I walk past the room where my father sorted mail … and each day I savor the American Dream as I think of my daddy … having no idea of all the wonderful things that would happen to him, and certainly not knowing that, decades later, his daughter would be a circuit judge in this same building. What a great country we live in.” Following those concluding remarks, the Georgia State University Brass Quartet played “God Bless America,” and Chief Judge Ed Carnes adjourned the proceedings. Judge Carnes and the judges of the Northern District of Georgia.

The Eleventh Circuit Historical Society P.O. Box 1556 Atlanta, GA 30301 (404) 335-6395 • [email protected]

OFFICERS AND TRUSTEES Chief Judge Ed Carnes – Honorary Chairman Leonard H. Gilbert – President David A. Bagwell – Vice President, Alabama Suzanne E. Gilbert – Vice President, Florida George L. Murphy Jr. – Vice President, Georgia Halsey G. Knapp, Jr. – Secretary John M. Tatum – Treasurer

Alabama Florida Georgia Julian D. Butler, Huntsville Timothy J. Armstrong, Ponte Vedra Beach Sarah B. Akins, Savannah N. Lee Cooper, Birmington Joel D. Eaton, Miami Robert M. Brinson, Rome Samuel H. Franklin, Birmington Katherine E. Giddings, Tallahassee Wallace E. Harrell, Brunswick Harry W. Gamble Jr., Selma John F. Harkness Jr., Tallahassee Dan F. Laney, Atlanta Richard H. Gill, Montgomery Benjamin H. Hill III, Tampa William H. Larsen, Macon Reginald T. Hamner, Montgomery John W. Kozyak, Coral Gables Michael N. Loebl, Augusta Scott A. Powell, Birmington James C. Rinaman Jr., Jacksonville Kirk M. McAlpin Jr., Atlanta Jere C. Segrest, Dothan Lanny Russell, Jacksonville Chilton D. Varner, Atlanta Finis E. St. John, IV, Cullman Sidney A. Stubbs Jr., West Palm Beach William N. Withrow Jr., Atlanta

8 Ceremony highlights Judge Jill Pryor’s talents and promise as circuit’s newest judge By Patrick C. Fagan Editor’s note: Patrick C. Fagan is an associate with Bondurant Mixson & Elmore, LLP, in Atlanta.

On Feb. 25, 2015, the subtle questioning of this United States Court of sophisticated witness had Appeals for the Eleventh elicited the testimony that Circuit convened to invest was ultimately relied on Jill A. Pryor as a United by the Georgia Court of States Circuit Judge. Family, Appeals in affirming the friends and colleagues judgment, a victory that gathered before the en Mixson called “all Jill.” banc Court to witness Jill After further detailing the Pryor formally receive her intangibles of Pryor’s legal commission and take the career and her excellent oath as a circuit judge. As leadership at the firm, part of the ceremony, Judge Mixson closed: “Bondurant Pryor’s former and current On Feb. 25, 2015, Judge Jill Pryor became the Eleventh Circuit Court of Mixson & Elmore is colleagues and law school Appeals’ newest judge. Family, friends, and colleagues came together extremely sorry to lose Jill, professor enumerated the at the investiture ceremony to witness the special occasion. but we are happy for this many experiences that court and we are happy for primed her for this new our country.” chapter in her career and Next, Akhil Reed Amar, recounted how she had the Sterling Professor of touched their lives. Law and Political Science Chief Judge Ed Carnes at Yale University, treated commenced the ceremony the audience to a journey by thanking Judge Pryor’s back to Pryor’s Yale Law many family, friends, School years. Professor colleagues and other Amar opened with a story distinguished guests, about Pryor’s first day of including former Sen. law school, which was also Saxby Chambliss, for the first day of the first class attending. After the Paideia Professor Amar taught at men’s a cappella group, Yale. Brandishing his notes featuring Judge Pryor’s son, from that day in 1985, performed the national Professor Amar recounted anthem, Judge Carnes how Pryor bravely broke introduced Judge Pryor’s Senior Judge J.L. Edmondson administers the oath of office to Jill Pryor the ice for him in that class, former law partner, H. with her husband, Edward Krugman, at her side. volunteering a description Lamar “Mickey” Mixson. of how both the United Mixson commended States Constitution and the Pryor’s 25-year career in private practice as a commercial Articles of Confederation “preserve states as independent litigator at the Atlanta law firm of Bondurant Mixson & entities.” In so doing, Pryor exhibited the legal acumen Elmore, LLP. To illustrate Pryor’s skill in the courtroom, and courage that would eventually lead her to the Mixson shared an anecdote about her witness Eleventh Circuit. examination skills. Mixson described how, in a high- Professor Amar also shared four lessons from academia stakes trial, Pryor had cross-examined a witness in such that bear on the role of the judiciary and explained how a way that the witness was left thinking that she had Judge Pryor was primed to meet these lessons. First, done well before the jury. In reality, though, Pryor’s like professors, federal judges have life tenure to “free

9 Judge Jill Pryor, continued

Senior Judge J. L. Edmondson shares his thoughts on the investiture During the ceremony, Judge Pryor thanked former U.S. Sen. Saxby of his former law clerk, Jill Pryor, as Judge Lanier Anderson looks on. Chambliss and many others for their support throughout the confirmation process.

(them) to do the right thing.” Second, both judges and Edmondson explained, the work in a judge’s chambers professors “write messages into bottles and toss them out necessitates the criticism of each other’s work by the judge into the ocean,” such that the import and effect of these and the law clerks. This requires the “great skill” of being writings might be felt only years later. Pryor had already able to opine freely on another’s work without angering experienced this phenomenon, as her 1988 student note that person. Pryor has this skill “in spades.” Finally, Judge on the Constitution’s presidential “natural born Citizen” Edmondson noted that Pryor “is a person of integrity” who requirement became the definitive piece on a legal issue authentically tells you exactly what she is thinking. It is that surfaced 20 years later during John McCain’s and with that background that Judge Edmondson recounted Barack Obama’s 2008 presidential campaigns. Third, how he had advised Pryor to pursue the judgeship judges and professors “have to see the big picture.” because “the court … would be much enriched if she As Professor Amar explained, judges and professors joined.” are generalists with a broad-sweeping portfolio. This Judge Edmondson went on to highlight Pryor’s service approach ensures that judges have the perspective to see to the Eleventh Circuit while in private practice, as the bigger picture when deciding what may appear to be well as the importance and rarity of her civil litigation narrow legal issues. Fourth, it is important that academics background to the Eleventh Circuit bench. Before formally and judges reach out to others in the face of an otherwise administering the oath to Judge Pryor, Judge Edmondson lonely profession. For judges, the expanse of outreach responded to Mixson’s earlier comments, declaring, includes reaching up to the corpus juris of the United “Mickey said they missed her down at the law firm. Mickey, States and previous judges; reaching out to other judges I missed her for 23 years. She is back. I am the winner.” and panels; and reaching down to the next generation of As the presiding judge, Chief Judge Ed Carnes also law clerks and mentees. Professor Amar closed by noting hailed Judge Pryor as a hard-working, brilliant lawyer that Judge Pryor was already fulfilling these roles. who is courteous, collegial and a joy to work with. He Following the presentation of Judge Pryor’s Presidential also lauded Judge Pryor’s wealth of experience in civil Commission, Senior Judge J.L. Edmondson shared his litigation, experience he described as something “which thoughts on the investiture of his former law clerk and we need.” Chief Judge Carnes also jokingly reminded formally administered the oath to Judge Pryor. At times Judge Pryor that it would be improper for her to growing emotional, Judge Edmondson described how remember that he had once dissented on her behalf when working with Pryor as his law clerk “was the beginning she had argued an appointed, pro-bono case before the of a beautiful friendship.” Judge Edmondson shared en banc Eleventh Circuit. three traits about Pryor that remained with him. First, In the mold of Chief Judge Carnes of Alabama’s official he explained that Pryor “is not a selfish person.” Despite welcome of Judge Julie Carnes of Georgia to the court her strong academic credentials, Pryor was willing to do earlier that week, Judge William Pryor of Alabama officially anything that needed to be done in the office. Second, welcomed Judge Pryor of Georgia to the Eleventh Pryor has an “honest respect for other people.” As Judge Circuit. Judge William Pryor went on to praise Judge Jill

10 Judge Jill Pryor, continued

Mickey Mixson, Professor Akhil Reed Amar and Senior Judge J.L. Edmondson visit with Judge Pryor after the ceremony.

Pryor for her gracious note to the other judges upon her Mixson, Bondurant Mixson & Elmore, President Obama, appointment, her work in immediately shouldering the Sens. Chambliss and Johnny Isakson, and the lawyers who court’s burden, and her distinguished academic record. provided words of support throughout her long wait for He also pointed out that, with the addition of Judge confirmation. Jill Pryor, seven of the court’s eleven active judges had Reflecting on her 25-year career in private practice, clerked for either the Eleventh Circuit or its close sister, the Judge Pryor expressed her recognition of the challenge Fifth Circuit. Like the earlier speakers, Judge William Pryor of lawyering. “I am very proud to have been a lawyer. also highlighted how Judge Jill Pryor’s civil experience Although it might not always seem that way, we on the is rare in the federal judiciary and is likely to strengthen court understand that you the lawyers work very, very the court. Describing Judge Jill Pryor’s fit on the court, hard to do the very best to obtain justice for your clients, Judge William Pryor closed: “We need colleagues who are even when it’s uphill in both directions. You are our more than practitioners. We need judges who are serious partners in the American system of justice, which could scholars of the law with a long view of its promise and not exist without you. And I pledge that I will never forget limits. We expect that Judge Jill Pryor will fill that need.” that.” Opening remarks concluded, Judge Pryor then Judge Pryor also shared what she had learned in finding addressed the court and guests. Approaching the podium, her own voice as a lawyer: “Our profession offers great Judge Pryor quipped, “I feel an irresistible urge to say, ‘May opportunity for self-expression. The greatest fulfillment it please the Court.’” Turning more serious, she continued, of that opportunity is finding and owning our individual “Today I stand humble before you as I accept the awe- voices. I urge you young lawyers and other professionals inspiring responsibility that your faith and trust has placed to learn as much as you can about your craft from in me. … I still have to pinch myself to believe that a girl experienced practitioners. But don’t be afraid to discover who grew up in Etters, Pennsylvania, which is not even a and use your own voice.” town, it is the name of the man who ran the post office, With that advice, Judge Pryor was met with a standing is standing here as a United States circuit judge.” Judge ovation while she joined her new colleagues on the Pryor went on to thank the many people who had made Eleventh Circuit bench. Finally, in perhaps a nod to her this feat possible for her, including her husband, Edward protracted wait for Senate confirmation, Judge Pryor’s Krugman, as well as her parents, her family, public school investiture closed with the Paideia School’s men’s a teachers, Judge Edmondson, Emmet Bondurant, Mickey cappella group singing Billy Joel’s “The Longest Time.”

Photos courtesy of the Eleventh Circuit Court of Appeals. Guerry Redmond, photographer.

11 The Voting Rights Act of 1965 and ‘unlikely heroes’ By Clay D. Land, Chief U.S. District Judge, Middle District of Georgia

On Aug. 6, 1965, President Lyndon B. Johnson signed Judge T. Hoyt Davis and the Primus King case the Voting Rights Act of 1965, which finally established an In 1944, civil rights activists effective means for the enforcement of the Constitution’s in Columbus, Ga., led by local guarantee that no person shall be denied the right to vote physician Thomas Brewer, based upon race. decided to challenge Georgia’s Without diminishing the role of the many leaders and All-White Democratic Primary. foot soldiers who fought courageously for voting rights, Remarkably, this was almost a it is appropriate on the 50th anniversary of this landmark decade before the Montgomery legislation also to recognize the handful of Southern bus boycotts and the landmark federal judges whose commitment to the rule of law Supreme Court school helped desegregate the South. Noted Southern historian desegregation decision, Brown and author Jack Bass described these judges as “unlikely v. Board of Education; almost 15 heroes.” They grew up as part of the white establishment, Judge T. Hoyt Davis. years before the lunch counter their education and professional success were not limited (Courtesy of the Middle sit-ins in Greensboro, N.C., and by the color of their skin, and they never suffered the District of Georgia) the “Freedom Rides” to the personal indignities associated with being treated as South; and almost 20 years second-class citizens. They also were not social reformers. before the March on Washington and the enactment But their devotion to duty prepared the ground for of the Civil Rights Act of 1964. The Student Non-Violent dramatic social change. By applying the law without Coordinating Committee had not been formed, and fear or favor, they helped change America. Two of those Martin Luther King, Jr. was a 15-year-old student about to judges sat on the Court on which I currently serve as chief enter Morehouse College in Atlanta. judge -- the United States District Court for the Middle Dr. Brewer and his supporters recruited a brave black District of Georgia -- and another sat on our sister court in barber, Primus E. King, to be their foot soldier for change. Montgomery. They found themselves in the middle of the On July 4, 1944, Primus King attempted to cast a ballot great legal battle for voting rights, and they rose to the at the Muscogee County Courthouse in the Democratic occasion. primary election. He was denied. After King was denied the right to vote, Columbus attorney Oscar D. Smith, Sr., Rights ‘unexercised’ a white attorney, filed a lawsuit on King’s behalf in the Columbus Division of the United States District Court for The 15th Amendment to the Constitution of the the Middle District of Georgia. Harry S. Strozier, a lawyer United States was ratified in 1870, and it unambiguously from Macon, also represented King. established the right of all citizens to vote regardless of their race or previous condition of servitude. At that time, the Middle District of Georgia had one Notwithstanding the creation of this clear constitutional district judge, T. Hoyt Davis, who had his chambers in right, many Southern states placed obstacles in the path Macon. Davis had recently been appointed by President of black voters. These included poll taxes, literacy tests Franklin Roosevelt. Primus King v. Chapman would be and the “All-White Democratic Primaries.” Georgia had one of the first cases he would hear as a federal judge. variations of all of these. After a hearing in Macon, Judge Davis ruled in favor of King, holding that racial discrimination in the Georgia The All-White Democratic Primary was particularly Democratic primary violated the Constitution of the problematic, because it had the effect of excluding black United States. Judge Davis rejected the Democratic Party’s voter participation even if a black citizen paid the poll tax, argument that the 15th Amendment did not apply to it passed the literacy test and was generally registered to because it was a “private” organization and not sufficiently vote. Because Republicans did not nominate competitive connected to the state to implicate the Constitution. The candidates in state and local elections in most Southern Fifth Circuit Court of Appeals affirmed Judge Davis’ ruling, states, including Georgia, elected officials were, for all and the Supreme Court denied the Democratic Party’s practical purposes, chosen in the Democratic Party petition for a writ of certiorari, thus making Judge Davis’ primary. Thus, by denying blacks the right to vote in the ruling final. Democratic primary, the white political establishment effectively excluded black Americans from participating in the selection of their government officials. See “Voting Rights Act of 1965,” page 14

12 IN MEMORIAM

Clerk Douglas J. Mincher will be missed

Editor’s note: This notice from Chief Judge Ed Carnes was posted Aug. 24, 2015, on the Eleventh Circuit Court of Appeals public website along with a notice that the flag would fly at half-staff for one week in memory and honor of Doug Mincher.

Douglas J. Mincher from Youngstown passed away State University and suddenly at the age an M.S. degree in of 57 on Sunday, judicial administration Aug. 23, 2015. He from the University was appointed clerk of Denver, College of the United States of Law. Court of Appeals for He will be the Eleventh Circuit remembered for on March 16, 2015. his outstanding Mr. Mincher’s service to the court, career as a court Douglas J. Mincher his often expressed administrator in love for his job and federal, state and respect for Clerk’s municipal courts spanned 25 years and included Office employees, and his warm and engaging service as chief deputy clerk for the Federal personality. He will be missed. The judges and District Court for the Northern District of Georgia employees of the Court of Appeals express their for five years and the court administrator/clerk condolences and sincere sympathy to his widow, of court for the Municipal Court of Atlanta for six Diana L. Mincher, and his family. years. Mr. Mincher graduated with a B.A. degree

13 Voting Rights Act of 1965, from page 12

Judge Davis’ courageous ruling sent shock waves officials after being excluded from the county voter through the white political establishment. The ruling registration list. Ruling in favor of the plaintiffs, Judge came as the 1946 campaign for governor was heating Bootle became one of the first federal judges in Georgia to up. Former Gov. Eugene Talmadge was the front-runner hold that the recently decided Brown v. Board of Education for the Democrat nomination, and he blasted the ruling, decision authorized a “class action” in such cases. stating, “If the door is once opened and we allow the Judge Bootle’s civil rights rulings, which included the Negro to participate in our primaries, the next move will desegregation of the University of Georgia, earned him be to allow them in our schools with our white children.” the scorn of many Georgians during that era. He was Talmadge continued, “The next move would be a law as criticized, threatened and ostracized. On one occasion, he we have in some states allowing them to stop in the same was even hanged in effigy outside the federal courthouse hotels and restaurants with white people.” Expressing his in Americus after he ruled that the Americus City School disdain for Judge Davis, Talmadge described Davis’ ruling Board could not arbitrarily deny admission to children as “the interracial uplifter’s advancing the Negroes higher from families who lived on a religious oriented, racially than his limited civilization justifies.” Unfortunately, such integrated Sumter County commune known as Koinonia racist rhetoric emboldened many whites to deny blacks Farm. Undeterred by the personal consequences of the right that Judge Davis’ ruling sought to protect. his rulings, Judge Bootle remained steadfast in his commitment to the rule of law. Continued resistance to change Notwithstanding rulings by federal judges like Judge From Albany to Birmingham Davis, blacks’ efforts to vote continued to be stymied Starting in 1960, voter registration efforts began picking by poll taxes, literacy tests and sheer intimidation from up steam. And in 1961, young activists with the Student white supremacists such as the Ku Klux Klan and some Nonviolent Coordinating Committee set up shop in representatives of law enforcement. Although Georgia Albany, which was located in the Middle District. They had abolished the poll tax in February 1945 during the Ellis intensified voter registration efforts there, but they also Arnall administration and the Democratic Party could not planned to make Albany the epicenter for a broad-based officially prevent blacks from voting in light of the Primus attack on continued racial segregation. Dr. King was King ruling, many voter registrars continued to prevent brought in to give the Albany movement the national black registration with unfair registration tests and with profile it needed to succeed, and he did in fact spend the purging of black voters from the rolls. United States some time in the Albany jail. But due in part to a shrewd attorneys in Georgia, including John Cowart of the Middle Albany Police Chief, Laurie Pritchett, who trained his District, conducted investigations of the purging of black officers to avoid brutality and bloodshed, the Albany voters. movement did not achieve its organizers’ goals. After the Albany movement failed to meet his expectations, King focused his attention on Birmingham. Judge William Augustus Bootle Learning from the mistakes in Albany and taking During the 1950s, racial advantage of the brutality of Birmingham’s Commissioner segregation continued to be of Public Safety, Bull Connor, he was able to capture the enforced under state law by attention of the nation in 1963 when Americans in their local government officials. comfortable living rooms viewed television news footage Whether federal judges would showing young black children being attacked by dogs and have the courage to follow the blasted with fire hoses. These efforts culminated in the United States Constitution in the March on Washington later that year and the passage of face of strong opposition from the Civil Rights Act of 1964. their neighbors remained to be While the Civil Rights Act was a major step toward racial seen. Sadly, some did not. But equality, it did not address voting rights directly, and that enough did. And Judge William piece of unfinished business needed to be completed. Judge William Augustus Augustus Bootle, an Eisenhower According to King, “the Civil Rights Act of 1964 gave Bootle. (Courtesy of the Middle District of Georgia) appointee to the district court Negroes some part of their rightful dignity, but without for the Middle District of Georgia, the vote, it was dignity without strength.” The march was one who did. Shortly after his appointment, 20 black toward “strength” would occur in a small town, 54 miles citizens from Randolph County, just down the road from from the Alabama Capitol — a town on the banks of the Columbus, filed suit in federal court against county voting Alabama River, Selma.

14 Voting Rights Act of 1965, continued

Judge Frank Johnson and the march Highway 80 to Montgomery at the Edmund Pettus Bridge The first of three voting- in Selma. Joined along the way by thousands from around rights marches from Selma the country, they reached Montgomery on March 24. An to Alabama’s statehouse in overflow crowd gathered in front of the state Capitol on Montgomery ended in violence March 25 to hear King deliver his eloquent speech for on March 7, 1965, when voting rights. deputies beat protesters as they After the march, public support galvanized behind attempted to cross the Edmund voting rights, and a few months later Congress passed the Pettus Bridge. Labeled by the Voting Rights Act of 1965. President Johnson signed this press as “Bloody Sunday,” this landmark legislation on Aug. 6, 1965. first march did not include King, who returned to Selma a few Devotion to duty days later to prepare for a second Judge Frank M. Johnson, The leaders and many foot soldiers of the civil rights Jr. (Courtesy of the Middle march. Thousands of protesters, District of Alabama) including King, members of the movement are certainly to be applauded. Often at clergy from around the country great personal sacrifice, they courageously helped and a substantial number of white participants, gathered move Americans closer to realizing the full promise of for this second march. But King, out of concern for the the Declaration of Independence and toward actually safety of his fellow marchers, canceled the march, much to experiencing the guarantees of the Constitution. But they the dismay of many of the protesters. were not alone. Judges like Davis, Bootle and Johnson played an important role in effecting change by their The march organizers regrouped and concluded devotion to duty — the duty to follow the law without that, for the march to be successful and for their fellow fear or favor. They did not shirk from that duty, even marchers to be protected, they needed to allow the legal though their rulings threatened their personal safety and process to play out in the only place they thought they caused them to be socially ostracized. would be treated fairly -- the federal district court in Montgomery, where United States District Judge Frank While King described Judge Johnson as a judge who Minis Johnson presided. King and his fellow protestors gave “true meaning to the word justice,” the Ku Klux Klan had previously asked Judge Johnson to halt the police labeled him “the most hated man in Alabama.” A cross was harassment in Selma. Judge Johnson proceeded burned on his lawn, and a firebomb damaged his mother’s cautiously but firmly. He was reluctant to grant relief house. He had constant protection from the U.S. Marshal without a hearing and without assurance that any order Service for 15 years. Judge Bootle endured similar threats, he issued would be enforced by the President of the and Judge Davis was publicly slandered by the politicians United States, Lyndon B. Johnson. of his day. After conducting the hearing and upon learning These judges’ courageous devotion to duty helped that President Johnson would nationalize the Alabama change America. It is not hyperbole to label them heroes, National Guard to enforce his order, Judge Johnson albeit unlikely ones. As we commemorate the enactment permitted King and the marchers to cross the Edmund of the Voting Rights Act, we should not overlook their role. Pettus Bridge. His order barred Alabama authorities from And we judges should always be mindful of their example. “arresting, harassing, thwarting or in any way interfering Editor’s note: This article was published in the Columbus with the effort to march from Selma to Montgomery.” The Ledger-Enquirer on Aug. 2, 2015, and is reprinted here with protesters began their five-day, 54-mile journey down U.S. the author’s permission.

Visit the 11th Circuit Historical Society Website: http://sites.google.com/site/circuit11history

15 On the front lines of the federal judiciary: In a Peruvian prison By David A. Bagwell

Thirty-two years ago in December of 1983, when I was 38 years old, I was what we then called a “United States magistrate” for the Southern District of Alabama. (A few years later, based in part on my testimony to the Senate Judiciary Committee, whining about the stupid name, they changed it to “United States magistrate judge,” a name no better and maybe worse.) I had done a lot of work for both the Administrative Office of U.S. Courts and the Federal Judicial Center and, evidently as my reward here on Earth, they sent me to Peru to conduct hearings on prisoner exchanges under a treaty between Peru and the U.S. Back then, we had some Americans in prison in Peru for narcotics trafficking, of course. Why else? Maybe seven or eight men, and one old woman, maybe 80. The treaty – similar to others like it with other countries – provided that, if Americans in Peruvian prisons had exhausted all their Peruvian appeals and had lost, then they could come back to the U.S. in custody of the Federal Bureau of Prisons and serve out the rest of their sentences in a U.S. federal prison. But there was a major catch to the deal. Since the A side trip to the Inca ruins at Machu Picchu was one of the highlights of David A. Bagwell’s 1983 working trip to Peru. convictions of most or all of these people had not been obtained in strict compliance with our U.S. Constitution (ahem!), and since the treaty parties (don’t blame me, it on the local deal. Our diplomat suggested we fly to the blame the president and the Senate and Peru) did not mountains for the holiday, to stay at our own expense want these people to file habeas corpus cases upon in Cuzco – the Inca capital – and visit Machu Picchu, and their return claiming that their confessions had been after a little torture we agreed. Our diplomat’s husband beaten out of them or something, in order for them to was about my size, and he lent me a knit rugby shirt to go come back here, they had to waive all of their rights to with my tan poplin suit. The next morning, we took a local challenge their convictions. And, to do that, there had to flight to Cuzco, taking off just exactly when my lost bag be a court hearing in Peru with a U.S. judge and a federal was landing in Lima on the adjacent runway. public defender as an appointed lawyer, and a Justice Upon arrival in Cuzco, one member of the team promptly Department lawyer. They had to agree to waive and got altitude sickness from a couple of drinks and several give up any challenge in U.S. courts by habeas corpus or cigarettes. But Julie and I followed the local traditional otherwise, or not come back. preventative or cure and, in the lobby itself, drank an So, I was the designated judge. I took my lovely wife, immediate pot of “maté de coca,” or coca leaf tea. This was Julie, and in early December of 1983, we flew to Lima, clearly not illegal in Inca country. It worked on the altitude Peru, on official passports. Of course, the air carrier lost sickness at that elevation, but maybe not on Everest. I have my bag in Miami, and I arrived with nothing but the tan not since made a habit of drinking maté de coca. poplin suit I was wearing. We were picked up at the airport Well, we had a fabulous time in Cuzco, bought some by a bright diplomat from the U.S. Foreign Service and a alpaca sweaters (I needed them, having hardly any local driver – always a luxury. At the hotel in Lima, we met clothes) and stuff, ate some wonderful grilled trout, went our team. to the local folklorico Inca shows and all of it. We toured The diplomat told us that we had arrived just in time Inca sites and rode the train at dawn to Machu Picchu, for a three-day national holiday for “The Immaculate climbed around, saw the sunset, and rode back to Cuzco. Conception” on Dec. 8. The Immaculate Conception was Not a bad deal, and all, for government work. not a federal holiday in the U.S. – Presidents Day and Until we got back to Lima, anyhow, and had to earn our Columbus Day were embarrassing enough – but we got living.

16 Peruvian Prison, continued

First, we went into the women’s prison and held a As we were wrapping up in the warden’s office, the hearing for the old woman. Her story, I gathered on the warden got a phone call, which he handed off to the side, was that her son had threatened that, if she didn’t diplomat. I later learned that it was the U.S. Embassy carry cocaine for him from Peru, he would throw her out of calling to tell our diplomat that they had heard that there her house. She did it, and she got caught. Lovely old lady, was a prison takeover in progress and to get the hell out of narcotrafficante or not. No problem there. there. Nobody told us that then. The next day, we had to handle the men, who were in And, there was a prison takeover in progress. The a Peruvian version of Alcatraz called “Lurigancho.” Now, convicts had grabbed the nuns and Gringa Inga as I had been in some bad prisons -- back then the district hostages and demanded to be let out of prison. While that judges made me try the district’s non-jury prisoner Section 1983 lawsuits in the prison chapel of the Alabama was going on, although I knew nothing about it, we left maximum security prison, and I have visited Alabama’s and got in our embassy van and headed back to the hotel death row and death chamber several times, as a lawyer for one last evening dinner, at which I foolishly ate the and as a judge. Alabama prisons are not nice. salad (which gave me fits for about two weeks upon my return). But Alabama has nothing on Peru. Our team went through security at Lurigancho prison The next morning, as we were at the Lima Airport, at the same time as some women who were there to put the federal public defender – a fine man from Texas on a Christmas show for the convicts. One was a striking who spoke good Spanish – came by with a local paper, American woman who was a television star in Peru, and said, “Judge! Look at this!” On the front page was a who went by “Gringa Inga” (I don’t name them; I am just photograph of the end of the prison break showing a reporting). Gringa Inga was with a group of nuns. Fine dead nun. Evidently the story was that the convicts took Christian ladies all, there to visit the prisoners and give the nuns and Gringa Inga as hostages and got a prison them comfort at Christmas. How Christlike! ambulance. They made a break for it in the ambulance. As we were going in, the guy from the Federal Bureau of But the police were on both sides of the road with guns Prisons said, “Judge, we need to hold your hearings as fast and shot up the ambulance from both sides, killing eight as you can and get out of here!” I agreed, but asked why. convicts, a nun and apparently a few police, too. (In the He said, “These people are not in control of this prison” Army, they taught us a crude name for an ambush in and indicated the guards, who appeared to be nervous which you shoot from both sides of the target, at each 18-year-olds holding machine guns pointed inside the other, and the Army told us not to do that.) prison walls with their fingers on the triggers. I agreed to move fast. A United States judge would have been a better hostage than Gringa Inga and the nuns. I am mighty lucky that We spent most of the day holding hearings, nothing they did not get me. I turned 70 this fall, but I still shudder unusual, except for one guy who presented a, um, close when I think about the nuns and Gringa Inga. call on the mental state necessary for a Johnson v. Zerbst “knowing waiver” necessary to come home where he David Bagwell is a member of the Board of this Society, but could get treatment, rather than being killed there by the in real life he is a solo lawyer in Fairhope, Ala., where he can other convicts. be reached at [email protected].

Bulgarella becomes bankruptcy court clerk Joseph E. Bulgarella was appointed Clerk of the United States Bankruptcy Court for the Northern District of Alabama in July of 2015. Before accepting this position, he spent 16 years as an assistant United States Bankruptcy administrator and the division attorney for the Western Division of the Northern District of Alabama. He began his career in private practice, focusing primarily on the representation of creditors in bankruptcy matters. Bulgarella received a B.S. in commerce and business administration from the University of Alabama and a J.D. from Samford University’s Joseph E. Bulgarella Cumberland School of Law.

17 Judge Peter T. Fay, from page 1

to be a world war. And you both will probably fight in it.” What he was saying, and they understood, was: “You may die in it.” Because of timing and age, they were spared. As a kid during the war, Pete was aware of what was happening, and awed by it. The country mobilized instantly, in a way he doubts we could do today. Men went to war; women went to work. In weeks, automobile manufacturing plants were building airplanes for most of the Allied countries. The war ended in September 1945, not quite two years before Pete graduated high school; although he had not been sent to war, he was changed by it. He remembers the high school football star who, upon graduation, immediately joined the service, went to war, became a paratrooper and died. That made it very real. His high school years were riddled with local store fronts bearing stars for the soldiers who would never come home. These young men were heroes, and their sacrifices were honored and revered. Pete knew that, when the time came and he was able, he would serve. He also became a lifeguard during those years, From left, Dean Colson, Deborah Gander and Pete Fay, during the something that would not have happened had grown December 2014 interviews that formed the basis for the article. (Photo men still been around. Because Fort Lauderdale had a courtesy of Deborah J. Gander) naval air station, and quite a number of drunk sailors getting caught in the surf off its beaches, Fort Lauderdale famous lion tamer Clyde Beatty, whom he befriended. needed strong, sturdy guys who were good swimmers Beatty opened a zoo on what was then Northeast 10th and could pull the sailors out. Given his size, age and Street (now Sunrise Boulevard), which included shows the fact he had always been a strong swimmer, Pete with lions and tigers. The zoo included several elephants was selected and sent to North Carolina for life guard that rode people on their backs in carriers – young Pete, training with the Red Cross. That position allowed him however, rode on the heads of the elephants, wearing a to earn good money at a job he enjoyed. It also cost him pith helmet. He was 8 or 9. Life was really good. And fun. the opportunity to be on the high school swim team the following year — having worked as a public life guard, Young Pete was athletic. He played sports in the he now was considered a professional swimmer and no neighborhood, on the side of the road, in the sand spurs longer qualified for high school swimming. Fortunately, he and in school. In high school, Pete lettered in football, had gifts for other sports. And gifted friends. baseball, basketball and track. Basketball was his best sport. He had a great year in 1946: His basketball team was Pete’s closest friend growing up, Herbert “Buddy” the high school state champ (one of two years while he Behrens, was the Boys National Champion and 1947 Juniors was on the team), and it was his first year making All-State. National Champion (in both singles and doubles) in tennis. Athletics opened doors for Pete – or at least opened the Rollins College, located in the center of the state, was a first door that led down a long corridor of more and more great tennis school, and Rollins wanted Buddy Behrens badly. Buddy told the coach recruiting him that he would doors that continued to open through connections that go to Rollins if Pete Fay would come and be his roommate. seemed to be almost divinely placed. Or written in by (Pete already had received scholarship offers from Cornell Hollywood screenwriters. and the University of Florida.) Coach Jack McDowell, the On Sunday, Dec. 7, 1941, Pete and his brother were athletic director and football coach at Rollins, offered Pete returning home from a movie when they were met in a football scholarship and promised him they were going the streets by young men hawking “Extras!” – the special to resume the basketball program that had been dropped papers that were put together when critical events during the war. Buddy and Pete went to Rollins in the fall of occurred after the regular papers had been published that 1947 and roomed for one year. Rollins resumed basketball, day. This “Extra!,” of course, was announcing the bombing so Pete played basketball and football, and rowed crew. of Pearl Harbor. Pete’s father was a World War I veteran. Just as he had been in high school, Pete was the highest Upon learning of the bombing, he took his sons, who were scorer in the state in basketball at Rollins College. After his barely teenagers, sat them down and said, “This is going first year, something happened.

18 Judge Peter T. Fay, continued

The dean of Rollins College approached Pete with a trial work full time. In his final Air Force trial, a man who proposition. A young man from a prominent family was had finished his tour of duty and was leaving the base coming to Rollins College, and this young man was known had several too many at his going-away party. He woke to have a bit of a wild streak. The dean thought Pete was the next morning with his hand in the cash register of the just the roommate to keep the new guy out of trouble. local PX and military police present. Pete argued “lack of The young man, Dick Pope, Jr., was the son of Richard malice” because the soldier was so drunk he didn’t know Pope, Sr., the man who had built and operated Cypress where he was. The soldier was sent home with a written Gardens. At that time, more than 20 years before Disney reprimand and an honorable discharge, which infuriated World, Cypress Gardens was the attraction in Florida. Dick, the base commander and led him to call in and excoriate Jr., was a world champion water skier, and soon he was each of the officers who had served on the tribunal. Pete Fay’s roommate. Pete and Dick became like brothers, Pete, who lacked legal training but had a well-developed and they stayed friends until Dick’s death not long ago. sense of right and wrong, complained to his immediate Dick taught Pete to water ski, and they started a commander that nobody would be able to get a fair trial water ski team at Rollins. The summer following Pete’s now that all the officers knew what had happened. The sophomore year, 1949, Dick persuaded him to forgo following day, Pete was offered an early discharge, which another summer lifeguarding on Fort Lauderdale beach he accepted. and join Dick, instead, as a water skier in the shows at With basically no notice of his discharge or time to plan Cypress Gardens. Pete agreed and spent the summers of for civilian life, he placed a phone call to the University of both 1949 and 1950 performing in four shows a day at Florida College of Law and applied for acceptance to the Cypress Gardens – “the best job I ever had.” He waterskied incoming class, which was to start in about one week. The solo, with a partner, in pyramids, barefoot, over ski jumps assistant dean, Frank Malone, told him there was no way and while flying kites. He had a blast and developed a love they could verify his credentials and have him admitted in of waterskiing that has stayed with him through life. He time. Pete, using the art of persuasion and a bit of patriotic continued to ski barefoot into his 60s and even took a ski blackmail, and name-dropping the president of Rollins jump in his 80s. He still gets up on skis at least once a year, College, convinced Dean Malone that accepting a young just to prove he can. At Rollins College life, by this point, veteran returning from service in the war was indeed the was grand. right thing to do. He was accepted over the phone and After his final summer as a performer at Cypress got to Gainesville in September 1953, for the morning of Gardens, Pete returned to Rollins College, and he orientation into his law school class. And what a class it taught 10th-grade world history at Winter Park High was. School as part of his major in education with a minor in His classmates included Lawton Chiles (future U.S. history. His plans had been to be a high school teacher senator and two-term Florida governor), Reubin Askew and athletic coach. But, as most men did back then, as (state senator and two-term Florida governor), Lenore college graduation approached he signed up to serve Nesbitt (U.S. District judge for the Southern District of his country in the military. The Korean War had begun Florida, and the only woman in the law school class the year before. In 1951, during his last month of college, that year), Dexter Douglas (general counsel to Lawton Pete joined the Air Force. He had grown tired of waiting Chiles while governor), D.L. Middlebrooks (U.S. District to hear from the Navy – the first choice of Fay men going judge for the Northern District of Florida), and James back over generations. The Navy acceptance letter came Kynes, Jr. (Florida attorney general). Pete and Reubin one month after he was commissioned in the USAF, a were roommates for their first semester. What each of relatively new branch of the military. One week after being these men had in common, other than esteemed careers graduated from Rollins College, he was sent to Lackland in politics and public service down the road, was their Air Force Base in San Antonio, Texas, for basic training and military service in the Korean War that had qualified them Officer Candidate School. He graduated OCS as a second for the G.I. Bill. Men like Pete, who had grown up with lieutenant in December 1951. He was sent to Craig Air no financial prospects of going on to graduate school Force Base in Selma, Ala., where he spent one year and (where athletic scholarships did not exist), were afforded played on the basketball team, before being assigned a graduate education that included completely paid-for to Lajes Field in the Azores as part of the Military Air tuition, books, room and board. The G.I. Bill changed Transport Services. the landscape of our country and offered education and At that time, if there were no attorneys on base, the corresponding economic opportunities to thousands base commander appointed one officer as prosecutor of men who otherwise would not have had it. Pete Fay and one officer as defense counsel. Pete was appointed and his law school classmates were among those men. defense counsel and began to think he might want to do Before they all went on to great careers, they were young

19 Judge Peter T. Fay, continued guys, classmates who became good friends and, by home one Sunday morning and asked Pete to join him as happenstance, became part of the story of each other’s an equal partner in their own firm. That firm, Frates & Fay, lives. Lawton Chiles had a ski boat, so Pete taught them all soon became Frates, Fay, Floyd & Pearson. how to water ski. Pete baby-sat for D.L. Middlebrooks and During this time, and as a direct result of being a his wife, and also worked in the law school library for 50 partner at Frates, Fay, Floyd & Pearson, Pete found himself cents an hour. a limited partner in the Miami Dolphins – a professional After Pete graduated law school in January 1956, his first football team struggling so painfully that it was hard to choice was to join the well-known, eminently respected give tickets away. Shortly after becoming a limited partner, plaintiffs’ personal injury firm of Nichols, Gaither, Green, he was tasked with negotiating a contract with the young Frates & Beckham. They were not hiring. Instead, he joined football coach that Joe Robbie was trying to woo away Patton and Kanner from January 1956 through June 1956 from Baltimore and down to Miami: Don Shula. When and worked on corporate contracts for $300 a month. Shula’s lawyer informed Pete, “Don Shula is to have total When an opening at the Nichols firm became available, control of anything involving football. Joe Robbie can Pete was their first choice, and his old friend from high charter planes and make hotel reservations. Don Shula school in Fort Lauderdale, Bill Hicks, approached him. does the football. No interference.” Pete, an athlete who Pete was loyal to his firm and refused to speak with the understood the power of a great coach, responded simply: Nichols firm. But with a stable of great persuaders who “You write it as strong as you can, then give it to me and I’ll knew how to get what they wanted, Billy Gaither instead make it stronger. That is exactly what the limited partners went directly to Stuart Patton – on the golf course, where want.” With that contract, Don Shula embarked on his most big deals were brokered in those days – and asked career as the head coach of the Miami Dolphins, and Patton to release Pete so the Nichols firm could have him. became and remains the winningest coach in NFL history Much to Pete’s surprise, he was summoned to Stu Patton’s and the only person ever to have coached an NFL team to office and fired. “I know you want to be a trial lawyer. a perfect season. Go be one,” Patton said graciously, opening yet another But we have skipped over two very important events in door that would lead down that surreal corridor that was Pete’s life during these early work years. First, when Pete unfolding as Pete’s life. was relatively new to the Nichols firm, U.S. Sen. George In 1956, Pete joined the law firm of Nichols, Gaither, Smathers invited Vice President Richard Nixon and his Green, Frates & Beckham, the pre-eminent plaintiffs’ family to visit South Florida without making plans for personal injury law firm in Florida and possibly the country what to do with the ladies if they accepted. On the golf at that time. He describes Perry Nichols as “fearless,” a course one morning, it was decided that Charles “Bebe” self-made man who had come from little to nothing, Rebozo would lend them his home on Key Biscayne, and seen an opening in representing the little guy against Billy Gaither would lend them his young lawyer named large insurance companies when most other firms were Pete Fay to entertain the Nixons with his ski boat and courting the insurance companies as clients, and put teach them to water ski. And Pete did. Tricia and Julie both together a cadre of extraordinary talent that would spread learned to water ski on that trip. “We even got Richard out over generations in South Florida and go on to found Nixon up once,” Pete laughs. Pete later agreed to be the their own powerhouse plaintiffs’ firms: Billy Gaither, Bill chairman of the Democrats for Nixon. When Richard Nixon Frates, Bill Colson, J.B. Spence, Bill Hicks, Aaron Podhurst, was elected president of the United States, Pete changed Bob Josefsberg, Murray Sams, Sam Daniels and Alan his registration to Republican “to be polite.” He and Nixon Schwartz. The Nichols Gaither DNA runs, at least to some had become, and long remained, good friends. degree, through nearly every major plaintiffs’ personal Second, at a pool party in the late summer of 1957, he injury firm in South Florida. Somewhere in the family met Claudia Pat Zimmerman, a former Miss Florida for the tree, at least one esteemed forefather held a seat at the University of Florida. He asked her out and she accepted. Nichols Gaither “Roundhouse” – the audacious, slightly He proposed marriage on their first date, and she rejected ostentatious building located at 1111 Brickell on the bay. him. He asked again in October 1957; again, she said no. Pete Fay was among them. Starting around Valentine’s Day 1958 (at least as he tells it), Pete was assigned to a two-man trial team with Bill she belatedly tried to accept his marriage proposal many Frates. In their first 12 months as a trial team, they tried 32 times, but he said no. Finally, on Oct. 1, 1958, Pete and Pat cases to jury verdict. The next year, they tried 33 cases to took their wedding vows, and so began the marriage that jury verdict. Later, Pete was reassigned to work as a trial has lasted 57 years and counting. Pete and Pat adopted team with another partner, J.B. Spence, and they had a their children, two sons and a daughter, through Catholic very successful run as well. Pete left the Nichols Gaither Services. They quickly had three children under age 4, all firm on Feb. 28, 1961, when Bill Frates showed up at his in diapers. It was a busy time, but an intensely happy one.

20 Judge Peter T. Fay, continued

Pat Fay’s influence may be the defining aspect of Pete private school tuition for three children instead of just Fay’s career. When President Nixon appointed Pete to one. Pete saw no possible way to make it work other than the federal trial bench for the Southern District of Florida going back into private practice. Again, “Pat said, ‘No.’ And in 1970, she persuaded him to accept the appointment, she was right.” Somehow, even at triple the expense, they and she would not entertain discussion of his leaving the made it work; but Pete felt burdened by the economic bench even when the economic realities of having left a sacrifice of being on the federal bench and the fear of not lucrative private career for public service were bearing being able to provide for his family and this very real need. down on the young family. He resented the “promised but not delivered” pay raises Pete had paid almost 50 percent more in income taxes federal judges were supposed to have received. Many as a private attorney the year before he took the federal times during these years he wondered if staying on the bench than his gross income would be his first year as a bench was the right thing for his family; Pat, however, did federal judge. The cut in pay was dramatic, and it forced not wonder. And she had spoken. So he stayed. him the following year to resign from four country clubs Judge Fay earned a reputation for ruling from the he had long belonged to and enjoyed with his family. bench, dictating his orders directly into the record. He What mattered to Pat, however, was that he no longer moved cases. While working at the trial level in 1972, worked 12-hour days and weekends and was now home he was selected to handle one of the first Multi-District for dinner and spent both Saturday and Sunday with the Litigation cases. An Eastern Airlines plane had crashed family. She enjoyed the home life, and so did he. But, in into the Florida Everglades. When the MDL was assigned the ensuing years, it became evident that their elder son, to him, he spoke to other judges and quickly determined Mike, an apparent genius, suffered a debilitating learning the most efficient and effective way to move the case disability that would require intensive and expensive would be to appoint a Plaintiffs’ Steering Committee. intervention if he were to have any chance at success. He appointed a young Aaron Podhurst, formerly with In the years before the Individuals with Disabilities the Nichols Gaither firm, who has since risen to national Education Act (IDEA) , the expense of a learning disabled and international pre-eminence in aviation cases. Judge child fell entirely on the family with no help from the Fay also handled a lot of drug cases in the early ’70s. He public school system. His son needed help, and it was up received several death threats and, once, his children were to him to see that he got it. threatened because of his role in handling a large drug Pete did two important things: First, he focused on his trial. Unbeknownst to the Fay kids, they were followed to child’s emotional needs and followed the advice of a local and from school at Westminster Christian and watched by University of Miami psychologist to “get Mike involved U.S. marshals. The threats to his own life never bothered in something where he could excel.” The struggles in him; the threats to his children made him question his school were demolishing Mike’s self-esteem. So Pete decision to join and stay on the bench. turned to waterskiing and spent a lot of time working at Although it became hard to make new friends once it with Mike. Mike became a star. He began winning ski he became a federal judge, and his work hours were competitions, sometimes against adults, and amassing vastly different from the colleagues he had left behind, trophies. Soon, Mike’s personality had made a dramatic he had good friends on the trial bench: James Lawrence turnaround and his spirit was rebounding. Second, Pete King had been appointed by Nixon and taken the bench and Pat investigated school options for Mike’s dyslexia and at the same time as Judge Fay. They shared a bond and enrolled him in the McGlannan School in Kendall, a school are still close friends today. Judge Shelby Highsmith that provides one-on-one learning for children with was his brother-in-law, having married one of the other dyslexia and other learning problems, but charges tuition Zimmerman sisters. Despite the economic issues, it was a rivaling a private university. For Mike, there really was no good time. other option. Judge Fay was nominated to the Fifth Circuit Court of Pete believed going back into private practice to afford Appeals by President Gerald Ford in 1976. Joining the the tuition was the solution; “Pat said, ‘No,’ ” he recalled, appellate court gave him even more time at home – “and she was right.” They tightened their belts and made reading briefs could be done in the early morning or late it work. Then, when Mike had progressed enough that he at night. Going back to his paper route and military days, was ready for the next step, Frances McGlannan suggested he always has been an early riser. Judge Fay began going Westminster Christian School, where he could continue to to his son’s high school and helping with the basketball get more of the one-on-one instruction he needed. Public team every afternoon. In 1981, when the Fifth and school still was no option for his disability. Westminster Eleventh Circuits split, he went with the Eleventh Circuit Christian, however, required all children in the family to because he lived in Miami, though he could have chosen attend. So the Fays were faced with paying college-level to stay with the Fifth. Despite missing the great minds

21 Judge Peter T. Fay, continued and huge personalities he had worked with on the Fifth In 2008, his alma mater, the University of Florida College Circuit, he again chose proximity and home life. Typically of Law, established the Peter T. Fay Jurist-In-Residence he would travel one week per month for sittings across Program to bring judges to the UF law campus for the circuit, and the rest of the time he was home in Miami, several days each year to interact with law students. The reading briefs, writing opinions and enjoying his family. jurists speak in classes and get their own office, with an Later, when Judge Fay took senior status in January open-door policy where they welcome students to drop 1994, he could have retired with his full pension and in and talk with them freely in groups or one-on-one. Chief Justice John Roberts was on hand to introduce continued to receive his annual salary (without the pay the program, and Judge Fay served as the school’s first raises that never came anyway), while going into private jurist-in-residence later that year. In classic Fay style and practice and finally earning the significant income he had humility, he remarked, “This honor is the highlight of forgone over the past 25 years. “Pat said, ‘No.’” Now that my 38 years as a federal judge. I’m very honored, very the kids were all out of college, the house was paid for and embarrassed and very humbled.” That same year, the they had no other pressing financial needs, Pat designated Eleventh Judicial Circuit Historical Society recognized him these years for travel and time with her husband. “And she as a “Legal Legend.” In October 2015, Judge Fay received was right.” So he has stayed. the Chief Justice Earl Warren Award, which is presented Their three beloved children have all grown up to do to a sitting jurist for lifetime achievement in defining well and make their parents very proud. Mike, once a character, integrity and professionalism. struggling student dangerously on the edge, was just Judge Fay is all those things. The life events and recognized as one of the top 10 commercial real estate connections that in fine detail and sharp focus seem to brokers in the country (No. 8 to be exact). Billy is the be the work of a very creative fiction writer, when looked manager of insurance for Royal Caribbean Cruise Line. at in broad stroke and soft focus reveal themselves to be Darcy is the assistant superintendent for the North the basic building blocks of many good men and lives Carolina Prison for Women. The three children have now well-lived: optimism, strength in adversity, friendship, given them seven beloved grandchildren as well. loyalty, discipline through athletics, patriotic service to Judge Fay has earned a number of honors and been country, valuing education, strong work ethic, love of recognized for his contributions both to the legal family, and gratitude. Looked at this way, his story is not all profession and the community throughout the years. that different from many others. But a young boy living in The American Inns of Court, a group dedicated to poverty who rode on the heads of elephants, waterskied fostering excellence in professionalism, ethics, civility and barefoot for cheering fans, taught a future president of the legal skills, named its chapter at St. Thomas University United States of America to water ski, and helped create School of Law after him. In December 1983, he became an NFL legend is a story as original and fantastic as they a Knight of Saint Gregory through Pope John Paul II, come. who simultaneously awarded Pat Fay the Pro Ecclesia et The Hon. Peter Thorp Fay casts the long shadow of a Pontifices Medal. great man, one who has been places and done things In 1989, Jeb Bush wrote to his father, then the no one else has done, or could do, because the historical president of the United States, recommending Judge events and cosmic alignment that allowed his life to Fay be appointed should a vacancy on the United States unfold in the manner it did could not conceivably occur Supreme Court arise during the Bush presidency. Instead, twice. Yet despite these extraordinary experiences and the senior Bush appointed David Souter and Clarence meaningful achievements, in person the long shadow Thomas. Judge Fay was long rumored to be on the short immediately dissipates under the warm, soft glow Pete Fay lists for appointment to the United States Supreme emits. He smiles easily, laughs playfully and compliments Court by several presidents. In 1994, Chief Justice William freely. The intimidating credentials give way to the Rehnquist appointed him to a special three-judge panel, mesmerizing charisma, kindness and grace. He becomes, officially titled the Division for the Purpose of Appointing as he most often introduces himself, just “Pete.” Independent Counsels, that was charged with appointing For those who have spent much time around Pete Fay, special prosecutors to investigate executive branch the one word that comes most readily to mind, because criminal activity. Along with Judge David Sentelle of the he uses it so frequently with an easy smile and a playful D.C. Circuit, Judge Fay served continuously for 12 years, tone, is “marvelous.” And it is a fitting word indeed for this receiving new appointments from the chief justice every marvelous man who has led a marvelous – in every sense two years, until the statute authorizing the panel expired of the word – life. “You almost wish you could live three in 2006. The third judge on the panel varied throughout or four lives,” he says, not exactly wistfully, but as though the 12 years. the thought has played in his mind more than a few

22 Judge Peter T. Fay, continued times through the years. It is clear that, as Judge Fay looks trained with before joining the bench got to have that gratefully and appreciatively over the marvelous life he kind of life. And, as he looks back, Judge Fay does make it has led and the blessings he has had, he also looks down clear, with his easy smile and playful tone, that it has been the path not taken, and he wonders. As do we. How far a marvelous life. might pro-plaintiff case law have advanced if that brilliant Deborah J. Gander clerked for Judge Fay and is now a mind and charisma had been allowed to advocate? What partner with the Coral Gables firm of Colson Hicks Eidson. kind of material comforts and extravagances might he have given his beautiful wife, and not fretted in providing Dean C. Colson clerked for Judge Fay and also for U.S. for his beloved children, had he stayed in private practice? Supreme Court Justice William H. Rehnquist. He is now But, instead, the federal bench got the brilliant mind to managing partner with the Coral Gables firm of Colson Hicks fairly and evenly apply the law to both parties (except for Eidson. the Feres doctrine, which he still hopes to one day undo), Author’s note: The author wishes to thank George Ondricek and Claudia Pat Zimmerman Fay got to share her life with of Litigation Arts in Miami for his work on the photo collage a man who adores her, and whose work allowed him to and Javier Yanes of Yanes Security & Investigative Services Inc. live the family life they valued. His children got to know for videotaping Judge Fay’s oral history interview. The DVDs their dad and be influenced by his presence. He got to of the interview have been donated to the historical society be there. Very few of the powerhouse trial attorneys he for preservation.

Judge Frank Johnson, from page 4

I think he was just using this quiet time to state the facts and organize his thoughts. After a day’s fishing, there was a routine of sorts. I would gut and ice down the catch and then prepare a Coleman-stove supper. After supper, we would “Salute the Constitution” a time or four during and after the often-glorious Chandeleur Sound sunset. After dark, there was only one available entertainment. Because we were all 30 miles or more from the mainland, seamen on shrimp boats and Sieracki seamen on oil rigs communicated to their homes, mainly in the river parishes of Louisiana, by VHF radio-telephone hookup through the Gulfport Marine Operator. The trick about such calls was that both sides of the conversation could be heard over ordinary marine radios (although there is probably something within the 4,000-plus federal offenses prohibiting listening to the calls). Because our trips generally involved a Friday and/or Saturday night, many calls were from lonely shrimpers/rig hands to their sweeties in Thibodaux or Belle Chasse or like places. The Judge would listen to the conversations, particularly the land-based women’s pledges of love and fidelity, and rate the credibility of the pledges. The specific question to be answered was this: After she hung up, would she be stepping out to the local honky-tonk with another fellow? The Judge also called home himself to speak to Ruth Johnson at least once during each trip. He and she were both aware of the universal audience, as I had alerted him, and he was himself an eavesdropper. On one trip, he was bothered by a common malady often treated by a preparation whose name includes a capital letter Judge Johnson with a stringer of redfish and speckled trout from near the end of the first third of the alphabet. He told me after in the anchorage at Chandeleur. (Courtesy of Pat Sims)

23 Judge Frank Johnson, continued supper that he wanted to call home, so I went through hoc additions on given trips. The regulars, roughly, were the usual routine of acquiring the marine operator and Curtis, Judge Johnson, Montgomery lawyers Bobby Black assigning a name to my boat for that purpose. and Harry Cole, Curtis’ friend and Montgomery uniforms The conversation thereafter went (exactly I believe) like vendor Earl Moorer, and myself and Buster Asmus from this: Mobile. Occasional participants were Judge Joel Dubina and Alabama Circuit Judge Joe Phelps from Montgomery Ruth J: Hello. and sometimes Judge Robert Varner of the Middle District Operator: This is the Gulfport Marine Operator. Will you and Montgomery lawyer Vaughn Hill Robinson. Judge accept a collect call from Frank on the Karin E? Tjoflat went occasionally, as did some of Judge Johnson’s Ruth J: Yes I will. former clerks, such as Peter Canfield and Eddie Ashworth. Jimmy Johnson was frequently in, but occasionally not FMJ: Hello, Ruth. because of fraternal disputes. Ruth J: How’s your rear end? On one Silver King trip, I think on the slow trip FMJ: Shush, Ruth. I told you everybody could hear these southwest from Bayou La Batre, the four present or calls. former trial judges aboard held a “best courtroom story” Ruth J: So how’s your rear end? contest with the rest of us as “contest judges.” The three Alabamians (Frank Johnson, Joel Dubina and Joe Phelps) FMJ: Well, alright, I reckon. each gave their reports of trials, featuring notorious The rest of the conversation was routine discussion parties and famous lawyers posturing in front of packed about the dogs, the fishing, the weather, etc. courtrooms. The contest judges were impressed by all Going alone to Chandeleur with Judge Johnson three. Then the Florida entry, Judge Tjoflat, told his story changed when he was demoted to the Court of Appeals. of a radically quieter setting from his days as a state circuit My good friend, Mobile lawyer Buster Asmus, had a judge. This was a very simple divorce case involving a Gulf shrimper named Joey and his wife, Mary. There were no nearly identical boat, and the Judge suggested having his spectators in the courtroom, only the parties, their lawyers compadre judge, Chief Judge Gerald Tjoflat, come along and the court personnel. It developed that Mary had filed with Buster. Several of these great trips were made. for the divorce based on Joey’s infidelity. It seemed to Buster is a great storyteller in his own right, and usually the judge that neither party really wanted the divorce, does so histrionically. One memorable night, the four of but Joey’s infidelity was repeated. As Mary testified on us were sitting around in my boat in the dark after supper. the stand, her lawyer, after getting her to describe Joey’s Judge Johnson kept encouraging Buster to “tell Jerry the misconduct, turned to Rule 801(d)(2)(A) evidence: one about …” Buster’s drink cup was sitting by his left Lawyer: Mary, did you ever ask Joey to stay away from side, and each time Buster moved his arms as part of a that woman? story, Judge Johnson would fill the cup with Jack Daniel’s. This went on for maybe an hour. The other two then Mary: Yes I did. somehow safely navigated the 100 feet or so back to their Lawyer: What did he say? boat and all was very still until about 2 a.m., when the Mary: He said he had tried but he couldn’t. still Chandeleur night was broken by the thunderous roar of Buster heaving over the side, in the style of any true Lawyer: Did he say why he couldn’t? drunken sailor. He recalls the details of that event to this Mary: Yes he did. day. Lawyer: Tell the judge the reason he gave for not being able to stay away from her. The Silver King III Judge Tjoflat then told the contest judges (and his Curtis grew restive at hearing the Judge’s Chandeleur contest opponents) Mary’s report of Joey’s Triple XXX fishing stories and wanted to get back into the act. He explanation. He recalled that, upon hearing it, he had found his avenue in the Silver King III, a lovely old party turned to the defendant’s table where he saw Joey boat moored hard by the bridge at Bayou La Batre, Ala. looking at his lawyer and nodding firmly in the affirmative. She had about eight 14-foot wooden skiffs, powered by The panel instantly and unanimously declared Judge 15-horsepower engines, as well as adequate below- and Tjoflat the winner, and he was frequently called upon to above-deck sleeping quarters for 10 or 12 fishermen. repeat his “simple divorce” story for anyone who had not Curtis started arranging trips on the Silver King that been present at the original telling. included a fairly stable core group (some would say When Curtis Caver arranged the trips on the Silver motley crew) from Montgomery and Mobile and then ad King, he always ensured that there were an odd number

24 Judge Frank Johnson, continued

No one paid much heed to the fact that their departing course was southwest, heading, perhaps, for Freemason Island and, if not there, then for Brownsville, Texas. In any event, Their Honors did not show back up on time for lunch. After waiting a reasonable time, search teams were sent out in all directions, including Buster Asmus and I who were dispatched to the north. After an appropriate period of futile searching, we decided that the time would best be spent by keeping a careful lookout while fishing, which we did. Late in the day, we spotted a small boat, which might have been a Silver King skiff headed in our direction, but with an unfortunate shallow mud flat intervening. When the boat hit the bar, we realized it was the lost party and we, reluctantly, stopped fishing. When we arrived near the grounded skiff, we heard the report that, the Constitution having been duly saluted, Chandeleur Island had disappeared, and the skiff’s crew Judges Frank Johnson and Gerald Tjoflat relax after supper in the had searched for it by running in several directions author’s boat. (Courtesy of Pat Sims) fruitlessly, but then had spotted a shrimp boat anchored in the sound. When they approached the boat with the of fishermen. He did this because the actual fishing was simple question, “Which way to Chandeleur Island?” the done from skiffs that carried two people; and if there were lone crewman pointed his Glock and told them to get the an odd number, the odd man would go with the Silver hell away. King’s master, Captain Andy, who, one would assume, At that point, the crew resorted to basic Eagle Scout really knew where the fish were. Curtis always fished training. They knew that the Silver King lay west of the with Captain Andy. The Silver King protocol involved a Island, so they determined the sun position (now fairly morning session, a return to the boat for lunch, and then low in the sky) and decided to head directly away from an afternoon session. Explaining one noteworthy session the setting sun, and ran aground by Buster and me. It was requires a preliminary exploration of the Chandeleur immediately clear that one of them would have to get out island landscape. and drag the skiff across the flat, and they commenced The island(s) runs north to south in a thin line for 30 to odd-man over (avoiding) the task. Judge Johnson miles or more. In 1969, the eye of the Great Hurricane immediately played his trump card — his “disabling” Camille tracked south to north, parallel to Chandeleur artificial artery: “Old codger, I reckon Dr. Debakey would about 20 miles west of the island, wreaking havoc on it. say I just can’t do that, so it’s up to you to get us over to My fishing buddy (now professor of surgery at the Mayo that other boat.” Judge Tjoflat decided to avoid the ADA Clinic in Rochester, Minn.) Mike Farnell and I went to Chandeleur three days after Camille passed and found nothing there higher than two feet above high tide level. In the 15 to 20 years between Camille and the ventures Curtis Caver arranged on the Silver King, there had been some gradual regrowth of the island, but still the only elevation was some minor dunes on the Gulf side, perhaps reaching four feet. Particularly in the bright sun of a still October afternoon, if one went significantly more than a mile west of the island into Chandeleur Sound and looked back to the east, the island had vanished in the haze. On one such October day after breakfast, Judges Tjoflat and Johnson boarded a skiff from the Silver King. One who viewed the skiff from a few fathoms away might observe that she sat quite low in the water. The explanation was that Their Honors’ “tackle boxes” were loaded to the gills with miniatures of fine spirits needed to Salute the Judge Johnson conducts an inspection of the Asmus/Tjoflat boat. Constitution, early and often. (Courtesy of Pat Sims)

25 Judge Frank Johnson, continued claim, grabbed the line, and pulled the skiff across, while trip was a waste. The bay waters were quite rough, our ace his passenger fished another miniature out of his box. guide’s baitwell water system failed and the live shrimp died, and we caught almost nothing. The only thing Sidebar — Lures approaching a “highlight” was a drive down LA-1 in the RV to the legendary town of Grand Isle for dinner one night. There’s a well-known adage that is absolutely true: Otherwise, Timbalier Bay created no good memories. Fishing lures are designed to catch fishermen, not fish. Judge Johnson was a lure changer. Each day, he put two big tackle boxes in the skiff and would change lures The Big Bend quickly if one was not working. At Chandeleur, I fished After a number of trips on the Silver King, and this essentially one lure (actually two versions of the same detour to Lafourche Parish, Curtis heard that “they” lure), the Tony Accetta spoon, silver for the flats and gold were really catching them in the lower part of Florida’s (for redfish) in the bayous. The Judge finally came around Big Bend. One trip to Horseshoe Beach was not that to the Tony. When he went on the Eleventh Circuit and productive. Then the spot moved, and remained, in had a sitting in Miami, he drove the 70-plus miles to Suwannee, which is reached by travelling down U.S. 98 to Riviera Beach to the Accetta headquarters and bought a Old Town, which some might call the end of civilization, case of each. turning right and heading southwest for almost 30 miles Before one Silver King trip, Judge Bob Varner heard to the Suwannee River delta, a truly beautiful area, and that “they” were really catching them down there on the village of Suwannee. We stayed at Bill’s Fish Camp something called the “Boy Howdy.” He went to all the (whose proprietor, Bobby Black was always quick to note, tackle shops in Central and East Alabama (and probably was named Ray). There were usually nine of us who went Columbus) and bought them out. He showed up in Bayou out, three to a boat, with three local guides, fishing in the La Batre with six or eight for each of us at his cost, which inside bayous of the Suwannee delta or the nearly endless back then was maybe $1.50 each. They didn’t produce grass flats in the Gulf. anything. But Jimmy Johnson figured out a way to rig The Suwannee group was a varying subset of the Silver them up backward and offered his supply of the Latest King group, with one fairly regular addition. We were Thing, the new “Howdy Boy” lure, likewise at cost – $8. pleased to be joined by Judge Lanier Anderson, who was When challenged on the differential, Jimmy said with a very low key about the Suwannee fishing. When it came stone face that the cost was $1.50 in hardware and $6.50 in time to place trivial bets on the day’s catch, he would “engineering.” say things like, “Macon is over 150 miles from the Gulf” and would otherwise soft-pedal his fishing skills, only to Lafourche Parish mysteriously weigh in the winner. Curtis Caver always had the latest information on Gulf One feature of these trips was Curtis Caver’s gourmet coast fishing hotspots. One day, I got a call from Curtis lunches. He prepared each morning two brown bag with this intelligence and directive: “They” were killing selections. Each had a wedge of hoop cheese and packs them in Timbalier Bay, Louisiana. He had the guides and of cheese crackers and saltines. The distinction was the boats lined up, but Judge Johnson was concerned about separate entree selections: Vienna sausage in one bag and the long car ride from Montgomery to Golden Meadow. Beenie Weenies in the other. Bill’s was a fairly Spartan place; The plan was for me to go to the local U-Haul outlet and cinderblock buildings, simple motel bedroom furniture and rent the U-Haul version of a 35-foot Winnebago. The gang a chair or two, very small shower towels, etc. It was at Bill’s would assemble at my place in Mobile, and I would drive that we had our only celebrity fisherman guest, Pulitzer the RV to Golden Meadow (actually to Leeville, a few miles Prize-winning journalist Howell Raines. Among Howell’s farther south down Bayou Lafourche). We made the trip writings is a book on the niceties of fly fishing – there were from Mobile to Leeville without incident, except for this; no niceties about the fishing with this crowd. the width of the RV was about 8.5 feet, and the lane width My last trip with the Judge was in the fall, probably of of the Huey Long Bridge over the Mississippi River west 1994, to Suwannee. At that time in Suwannee, there were of New Orleans was then nine feet. I made the passage at two places to go for the evening meal. The first was a about 10 mph with the entry step scraping the curb the basic roadhouse, shirts and shoes optional. The second entire way. Nobody but Buster noticed the sparks flying. was a somewhat more refined place, where both the When we got to Beaudroux’s Waterfront Motel in fishing crowd and the local residents gathered. Curtis Leeville, there was only one room reserved for us. Through directed us there for the last night’s meal. The group of some process, the beds were assigned, and Judge Dubina us sat at a library-type table, with Judge Tjoflat sitting at and I were the last two and were relegated to the RV. This the head. Judge Johnson sat to his right, and I was a place

26 Judge Frank Johnson, continued or two down on the left. By then the Judge’s mind was Reporter’s Oath beginning to fade, and as I looked across the table I saw a Those who had the privilege of knowing Judge Frank bedraggled, tired old man. Perhaps he saw me staring at Johnson all can testify that he loved to tell a story. In him, because, inexplicably, he winked at me and turned the middle of Frank Sikora’s book “The Judge,” there is a to the head of the table. “Jerry,” he said quietly, “tell ’em picture of the Judge proudly displaying the front half of a that one about that shrimper and his wife and that divorce pretty nice redfish. He particularly loved telling the story case.” He turned to his right, to all at the table (who had of the events leading to that picture. heard the story before), and said, “You all listen to this, it’s a great story.” We were drifting over the grass flats at Chandeleur in a 12-foot aluminum skiff when he caught the redfish. As Judge Tjoflat told the story, including its Triple-X usual, we put it on a short stringer behind the skiff so that punchline. At that point, Judge Johnson leaned to his left it would be fresh when we returned to the big boat for its and, without words but with facial and body language, rendering. While we continued drift fishing, a fairly healthy communicated that he had not heard the punchline. shark, maybe four or five feet long, came up suddenly When I saw that, I knew exactly what the wink had meant. behind us and neatly bit the redfish in half. We did not It meant “watch this.” And I was certainly watching. After have a camera on the skiff, so when we returned to the big Judge Johnson leaned in, Judge Tjoflat, who speaks boat, the Judge posed for that picture. in a stentorian voice anyway, repeated the punchline in a louder voice. Judge Johnson then, appearing a bit The Judge loved to recount most of the foregoing bewildered, looked at the Chief Judge and said, “What’s details to his law clerks and others. The variable in the that you say?” With that, the Chief Judge of the United story was the shark’s body length. This ascended over States Court of Appeals bellowed the Triple-X punchline time to exceed that of his big, black Lincoln automobile, of the shrimper divorce case in a voice that could be heard and finally reached 20 feet or so. I was sitting about two everywhere in the southwest quarter of Dixie County. yards from the actual shark attack, and I would discount Within the restaurant, one could hear forks dropping, the 20 feet by 75 percent. However, his tale provides a chairs moving back and patrons gasping. I do not recall good standard for required narrative veracity, and with actually seeing Judge Johnson slapping his thigh, but I that as the measure, I declare that the foregoing is true am supremely confident that deep in his old soul he was and correct. delighted at pulling a very good one over on his boss.

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27 Discussing the BCCI trial: Middle District of Florida’s ‘Fifty Years of Justice’ book celebration By Larry Dougherty

On Sept. 22, 2015, U.S. Magistrate the Middle District Judge Anthony E. of Florida Bench Bar Porcelli welcomed the Fund Committee’s attendees on behalf of History, Education, the History Committee. and Public Outreach Judge Porcelli Subcommittee held recounted how the an event to highlight BCCI panel discussion the June publication fit into the series of of Professor James events and exhibits M. Denham’s book celebrating the history “Fifty Years of Justice.” of the Middle District. The book draws on One such notable event extensive research was the two-day, 50th and oral histories to anniversary celebration recount the first 50 in October 2012, years of the Middle featuring presentations District of Florida. An audience whose members included former Florida Bar President Gwynne Young by judges, lawyers and and former Second District Court of Appeal Judge E.J. Salcines, center, enjoyed the law students. Another At the September presentation. (Photos courtesy of the Middle District of Florida Bench Bar Fund was the History event, the History Committee's History, Education, and Public Outreach Subcommittee) Committee’s work Committee chose installing exhibits in one trial from among the many significant and exciting the lobbies and public spaces of the courthouses in the trials and cases examined in Professor Denham’s book: district. the BCCI money-laundering case. The choice was timely Judge Porcelli then introduced Professor Denham, a as well as historic. Not only did the BCCI case involve one history professor and director of the Lawton M. Chiles of the largest money-laundering prosecutions ever, but Jr. Center for Florida History at Florida Southern College also the events underlying the case are the subject of a in Lakeland. Professor Denham described the formation forthcoming major motion picture movie, “The Infiltrator,” of the Middle District from territory formerly part of the due for release in 2016. Northern and Southern Districts of Florida. In expounding A panel of real-life participants assembled to discuss the on the history of the court, Professor Denham showed a trial that took place over six months in 1990: Senior U.S. number of photographs of judges of the court. District Judge Wm. Terrell Hodges, who presided; Robert Judge Porcelli then turned the program over to Larry Mazur, the undercover U.S. Customs agent at the heart Dougherty, a bar representative on the History Committee of the operation and the government’s star witness; and who served as moderator for the panel discussion. Tampa trial lawyer Bennie Lazzara, Jr., who represented Dougherty suggested to the attendees that the facts one of the defendants. of the BCCI trial would overshadow any fictionalized Adding further to the event was its setting — the old serial shown on HBO or Netflix. Dougherty provided the federal courthouse in Tampa, which has been remodeled audience with short biographies of Mazur, Lazzara and as Le Méridien Tampa, a boutique hotel. The participants Judge Hodges. Dougherty then introduced Mazur, the and guests met in the Courthouse Ballroom, which last former Customs agent, to provide an overview of the case. served as the courtroom for Senior U.S. District Judge Mazur, who had a highly decorated 27-year career as a William J. Castagna. The audience of approximately 150, federal agent, began his overview by playing a four-minute comprising many judges and lawyers, enjoyed the panel NBC News story on the BCCI case, available on YouTube discussion and a lunch sponsored by the lawyers of the at https://www.youtube.com/watch?v=Bx1u-TP3Ouc. In Bar of the Court through its Bench Bar Fund. No public the segment, NBC anchor Tom Brokaw described how the funds were used in the event. seventh-largest privately held financial institution in the

28 Book Celebration, continued

Senior U.S. District Judge Wm. Terrell Hodges, left, listens as one of the BCCI defense attorneys, Tampa trial lawyer Bennie Lazzara, Jr., makes a point.

world, the Bank of Credit and Commerce International and Paris, microphones hidden under Mazur’s designer (BCCI), was laundering drug money in transactions linked suits and in his Renwick briefcase were picking up to former Panamanian Gen. Manuel Noriega. Numerous conversations captured on tape. bank officers and the bank itself were indicted. Suspects The panel discussion began with the first question linked to transactions in Europe and South America were going to Judge Hodges. Judge Hodges recounted how, in lured to a mass arrest in Tampa on the pretext that Mazur, addition to the normal demands of a federal criminal trial, known undercover by the name “Bob Musella,” was getting the BCCI case imposed unique challenges because of its married – to a woman who was, in fact, also an undercover focus on high-rolling bank and drug crime. Judge Hodges Customs agent. described how a juror copied phone numbers from an Mazur then gave the audience more details of the address book in evidence and actually placed telephone operation. Besides seizing millions of dollars, the agents calls to the number attributed to a drug kingpin in also took control of more than a ton of cocaine located Colombia. The person who answered told the juror never during the operation, Mazur said. He described how to call back. After inquiry, Judge Hodges dismissed that teams of Customs agents helped him prepare for more juror from the panel. than a year for his undercover role, by fleshing out his Judge Hodges also complimented Mazur’s testimony at false identity. Mazur also received psychological training trial, noting that the agent had mastered the hundreds of to prepare himself for the disorienting and nerve-racking hours of recorded conversations and testified for 11 weeks challenges of playing a criminal and associating with with confidence and precision. Judge Hodges presided corrupt bankers and dangerous drug kingpins. As Mazur over the trial in a first-floor courtroom that is now the wined and dined the suspects in Miami, Washington location of Le Méridien’s restaurant and café.

29 Book Celebration, continued

Lazzara represented defendant Akbar Bilgrami. He agreed that the defense had a difficult task at trial. The fact that other banks might have been seeking the same type of business was not a sufficient defense of BCCI and its officers. Lazzara noted that his client and other defendants had never been charged with a crime before. During the trial, several of the defendants took apartments near the courthouse for themselves and their families, and Lazzara recalled visiting them in the morning before court. Lazzara recalled attacking Mazur’s testimony on cross-examination, yet also knowing as the questioning proceeded that, to borrow boxing terminology, his side was “behind on points.” Mazur noted that the demands of the case did not lessen once arrests were made. To prepare himself for Books by Professor James M. Denham were available at the event. trial, he spent weeks in a hotel room reviewing and transcribing the audiotapes until he was well-versed in all of them. Mazur also described the burden of the case on his family — both in terms of his long absences while undercover, and also the stress of keeping his family safe once it became known that a Colombian drug lord had put a half-million-dollar price on his head. Mazur recounted spotting a suspicious truck parked near his residence one night. He hid his family and crept up on the truck with a weapon to surprise the occupant of the truck. Only then did Mazur learn that the man was there for an entirely innocent reason — monitoring alligator movement as part of a conservation project. Mazur noted that actor Bryan Cranston, the star of the hit AMC series “Breaking Bad,” will portray him in “The Infiltrator.” The movie will also star John Leguizamo, Diane Kruger and Benjamin Bratt. From left, Senior U.S. District Judge Wm. Terrell Hodges, Tampa Judge Porcelli brought the event to a close, thanking lawyer Pat Dekle and Professor James M. Denham talk before the the panel members for their contributions and suggesting panel begins. that audience members learn more about the many historic trials and cases in the Middle District by reviewing “Fifty Years of Justice” for themselves. Professor Denham’s book is available on Amazon.com at http://www.amazon.com/Fifty-Years-Justice-District- Quincentennial/dp/0813060494 and also from the University Press of Florida at http://upf.com/book.asp?id=DENHA001. Editor’s note: Larry Dougherty is a bar representative on the Middle District of Florida Bench Bar Fund Committee's History, Education, and Public Outreach Subcommittee. He is an associate with the Tampa office of the Foley & Lardner law firm, practicing complex civil litigation focused on white collar and securities matters, intellectual property and appeals. Author’s note: The 50th anniversary celebration was last discussed at length in the Winter 2013, Vol. X, No. 1 issue of the 11th Circuit Historical News. The old courthouse-turned- boutique hotel was profiled in the Summer 2014, Vol. XI, No. 2 U.S. Magistrate Judge Anthony E. Porcelli, one of the organizers of the BCCI panel discussion, welcomed the audience. issue of the 11th Circuit Historical News.

30 U.S. District Judge Harvey E. Schlesinger honored by FBA-Jacksonville Chapter By Laura Boeckman

On Aug. 20, 2015, the Jacksonville Chapter of the her way to her job interview with the Judge, he would not Federal Bar Association hosted a special luncheon at the let her reschedule and instead told her to just walk into his Bryan Simpson Federal Courthouse in Jacksonville to office backward if she was that worried about the coffee honor Judge Harvey Schlesinger on the occasion of his stains. So Rosemary did just that, and the Judge must have 40th anniversary on the federal bench and 50 years as a known he had a keeper when he realized that her sense of member of the Florida Bar. humor matched his own. Judge Schlesinger’s wife, Lois, along with his three Not only the people who worked closely with Judge daughters, their husbands, three of his grandchildren and Schlesinger recognized his contributions; the legal many of his former law clerks from near and far joined the profession and community also wanted to acknowledge local bench and bar in celebrating Judge Schlesinger’s him on his special day. Judge Schlesinger received many contributions to the court, the community and the compliments from his alma mater, The Citadel. Assistant lives of those privileged to work with him. His colleagues U.S. Attorney Mac Heavener, another Citadel alumnus, and former clerks shared stories, both touching and read a letter recognizing the Judge’s “example to cadets humorous, about their time spent working with him on and graduates of what it means to be a principled leader” the bench. and for living a life that “reflects The Citadel’s Core Values Florida Second Judicial Circuit Judge Martin Fitzpatrick of Honor, Duty, and Respect.” A great time was had by all. shared the story and a video clip of the Judge’s brief stint as an actor. Judge Schlesinger played a judge in a TV show About the author: Laura Boeckman is a former law clerk called “The Hitman” and still occasionally receives royalties to Judge Schlesinger and the current president-elect of from his acting career. Rosemary Cakmis, the Judge’s first the Jacksonville Chapter of the Federal Bar Association. law clerk, emphasized how much a good sense of humor Boeckman served as program chair for the event honoring is part of the Judge’s personality and life in chambers. Judge Schlesinger. When Rosemary accidentally spilled coffee on her suit on

Judge Schlesinger and his wife, Lois, enjoy hearing the stories about his days on the bench as Judge Brian Davis and Jane Lester look on.

31 Judge Schlesinger, continued

Judge Timothy Corrigan talks about how important family is to Judge Schlesinger and how his family would regularly visit him at the courthouse – including the time his young granddaughter accidentally walked into one of Judge Corrigan’s hearings.

Tanya Sharpe shares her insights into what the Judge looked for in a new law clerk. Apparently, winning on “The Price is Right” at least got you an interview.

32 Judge Schlesinger, continued

33 Judge Schlesinger, continued

Laura Boeckman presents Judge Schlesinger with a plaque recognizing his service to the bench and bar.

Judge Schlesinger and his current and former law clerks, who now include two federal judges and a state court judge.

Photos provided by Susanne R. Weisman, Esq.

34 The NCBJ meets in Miami Beach By Judge Laurel Myerson Isicoff, U.S. Bankruptcy Court, Southern District of Florida

The National Conference of Bankruptcy Judges is a voluntary association of bankruptcy judges of the United States. The conference has just celebrated its 89th year. One of the many purposes of the NCBJ is to “provide continuing legal education to judges, lawyers and other involved professionals.” To that end, each year, the members of the NCBJ have included an educational program as part of their annual meeting. This annual meeting, also known as the National Conference of Bankruptcy Judges, is held over three days in a different city each year. Everyone is invited to attend. This year the NCBJ annual meeting was held at the Fontainebleau Hotel on Miami Beach from Sept. 27 through 30. The education portion of the meeting Judge A. Jay Cristol accepts the 2015 Judge William L. Norton, covered consumer and business law topics presented Jr. Judicial Excellence Award. (Photo courtesy of American by bankruptcy judges, pre-eminent law professors Bankruptcy Institute) and leaders in the insolvency world. A small sample of the many presentations at the conference were Reuters donates $10,000 jointly to the ABI and the “Joint Defenses, Common Interest, Attorney-Client NCBJ to fund scholarships. The NCBJ uses its share and Co-Client Privileges: Why I Don’t Have to Answer to subsidize the attendance of minority lawyers to that Question,” “How to Win (or Lose) Bankruptcy its annual meeting, through a scholarship program Auctions,” “Take my House – PLEASE! Getting Rid of named in honor of Judge Cornelius Blackshear. Encumbered Property in Consumer Cases” and “Show Many local consumer and business practitioners Me the Money: Debtor’s Attorneys’ Fees in Consumer attended the annual meeting, and I think they will Cases.” all agree that it was a worthwhile conference. In all, In addition to education sessions, there were there were more than 1,700 registrants. many networking events, and breakfasts and Next year’s annual meeting will be held Oct. 26-29 luncheons with fascinating speakers, including the in San Francisco. If you would like to hear Judge Paul American Bankruptcy Institute (ABI) luncheon on W. Bonapfel from the Northern District of Georgia Tuesday, where former FBI Director Louis Freeh singing about why you should go to the NCBJ in San was interviewed by Professor Michelle Harner. You Francisco, go to the NCBJ website. Thankfully, Judge can watch that interview on “Eye on Bankruptcy,” Bonapfel has a very good voice; he apparently sings a monthly podcast available at the ABI website: in a barbershop quartet. www.abiworld.org. The highlight of that luncheon, however, was when Judge A. Jay Cristol was awarded For more information about the NCBJ including the Judge William L. Norton, Jr. Judicial Excellence its mission statement and its annual meetings, visit Award, an annual award presented by the ABI and www.ncbj.org. Thompson Reuters to a bankruptcy judge, who, Editor’s note: Judge Laurel Myerson Isicoff is based upon a career of lifetime achievement, has secretary of the National Conference of Bankruptcy distinguished himself or herself as an educator, Judges. Reprinted from the Bankruptcy Buzz (October writer or scholar. For those of you who know Judge 2015), a publication of the U.S. Bankruptcy Court for Cristol, you know why he was a shoo-in. In honor of the Southern District of Florida, with the author’s the Norton Award recipient, each year Thompson permission.

35 Judicial heroes’ courthouses named landmarks By Charles W. Hall

The memories of three legendary federal judges, Judges Tuttle, Wisdom and Johnson, appointed in who overcame deep-seated Southern resistance to end the 1950s by President Eisenhower, all received the segregation for millions of African-Americans, were Presidential Medal of Freedom before their deaths in the honored recently when the courthouses named after 1990s. them were declared national historic landmarks. President Carter, honoring Tuttle in 1981, called him The National Park Service granted landmark status “a true judicial hero,” adding, “With steadfast courage to the Elbert P. Tuttle U.S. Court of Appeals Building in and a deep love and understanding of the region, he has Atlanta; the John Minor helped to make the Wisdom U.S. Court of constitutional principle Appeals Building in of equal protection a New Orleans; and the reality of American life.” Frank M. Johnson, Jr. Honoring Wisdom in Federal Building and 1993, President Clinton U.S. Courthouse in cited the “clarity and Montgomery, Ala. reason” of his judicial In a July 20 ceremony writing, adding, “Judge in Montgomery, Wisdom’s opinions National Park Service advanced civil rights and Director Jerome economic justice.” Jarvis cited the judges’ roles in the Two years later, Clinton 1955 Montgomery said that Johnson, a Bus Boycott, the U.S. district judge for 1961 Freedom Rides, the Middle District of the 1965 Selma to Alabama, “changed the Montgomery March, face of the South. … and the desegregation At the July 20 ceremony in Montgomery, are, from left: Myron H. Thompson, He challenged America of Southern schools Senior U.S. District Judge; Jonathan B. Jarvis, NPS Director; Torre J. Jessup, to move closer to the and universities. The regional administrator for the General Services Administration Southeast ideals upon which it is judges also played Sunbelt Region; and Chief Judge Ed Carnes, U.S. Court of Appeals for the founded.” leading roles in ending Eleventh Circuit. (National Park Service photo provided by Administrative Office Wisdom, Tuttle and segregation of public of the U.S. Courts.) two other judges — facilities and upholding John Robert Brown and voting rights for African-Americans. Richard T. Rives — were known as the “Fifth Circuit Four.” “The courthouses in Alabama here, Georgia, and Ironically, the term was coined as an insult by a fellow Louisiana were all involved in nation-changing events,” Fifth Circuit judge, Benjamin Cameron, who accused Jarvis said. “These courts bore the burden of enforcing his colleagues of panel-rigging in their zeal to overturn Brown v. Board of Education after the Supreme Court segregation. rendered its historic decisions. … (They) dealt effectively By the time Tuttle became the Fifth Circuit’s chief with Southern massive resistance and obstructionism.” judge in 1960, the promise of Brown v. Board had Gerald B. Tjoflat, a U.S. Court of Appeals judge for the stalled, as school systems across the South ignored the Eleventh Circuit, who knew and served with all three Supreme Court’s mandate to integrate. The Fifth Circuit judges, said they also were remarkable examples of encompassed six Southern states — Texas, Louisiana, courage, dignity and personal civility in the midst of a Mississippi, Alabama, Georgia and Florida — although the national storm. last three became the Eleventh Circuit in 1981. “It was a wrenching time. People were afraid of the When some federal judges bottled up desegregation unknown,” Tjoflat recalled. “You had to have a good spine. suits by declining to issue final rulings, the Fifth Circuit They just took the high road, and remained gracious all cut through the delays — demanding immediate the time.” desegregation without waiting for final lower-court

36 Judicial heroes, courthouses named landmarks action. Most dramatically, the Fifth Circuit ordered an Despite their monumental impact, the judges were openly defiant governor to desegregate the University of described as personally modest. Mississippi — a decision that sparked rioting and required In 1994, when the Court of Appeals in New Orleans troops to restore order. was named after Wisdom, U.S. District Judge Martin L.C. Grudgingly, after multiple legal challenges, the Feldman said Wisdom’s “noble humility in the face of his universities of Georgia, Alabama and Mississippi all vast accomplishments seems an almost inhuman feat.” But opened their doors to African-Americans, and public Wisdom also had a playful side, Feldman noted, including school districts eventually did the same. a “fanatic” devotion to bridge. At the recent ceremony in Montgomery, Chief Judge Throughout the civil rights turmoil, Judge Tjoflat said, Ed Carnes, U.S. Court of Appeals for the Eleventh Circuit, the judges remained steadfast in their belief that the law said the judges were just as unyielding with other would prevail. “Johnson had a great faith in the American racial injustice. Wisdom, he noted, dismissed claims people. So did Tuttle, all these guys did. And in the end, that one city’s “colored only” signs were voluntary as “a their rulings were completely accepted. People don’t even talk about it today.” disingenuous quibble that must rest on the assumption that federal judges are more naive than ordinary men.” Publicly, the judges were matter-of-fact about their role Carnes added, “The judges of the old Fifth were not naive.” in defeating Jim Crow. Although a district judge, Johnson is perhaps best Tuttle told biographer Anne Emanuel that the civil remembered for crossing paths with the Rev. Martin rights disputes were “the easiest cases I ever decided. The Luther King, Jr. In 1956, Johnson declared that segregated constitutional rights were so compelling, and the wrongs buses in Montgomery were unconstitutional, ending were so enormous.” a yearlong boycott that began with Rosa Parks’ arrest. Johnson said in a 1991 interview that his rulings were In 1965, Johnson permitted marchers led by King to based on the Constitution, not any moral agenda. “As long complete their journey from Selma into Montgomery, as you think you are doing what’s right, follow the law, and after police violence had thwarted them. the facts require it, you have to do it,” he said. “If you are not willing to do it, get another job.” “There sat in this courtroom one person who refused to be a bystander, who spoke out against the status quo,” Editor’s note: Reprinted with permission from the said Senior U.S. District Judge Myron H. Thompson at the Administrative Office of the U.S. Courts. Originally published July 20 ceremony. “Judge Frank Johnson, for me, stands as on Aug. 7, 2015. a symbol that goodness … in the hands of even just one About the author: Charles W. Hall is with the Public Affairs person can overcome.” Office of the Administrative Office of the U.S. Courts.

The Elbert P. Tuttle U.S. Court of Appeals Building in Atlanta. (Courtesy of the Eleventh Circuit Court of Appeals)

37 Judicial heroes, courthouses named landmarks

The John Minor Wisdom U.S. Court of Appeals Building in New Orleans. (Courtesy of the Fifth Circuit Court of Appeals)

The Frank M. Johnson, Jr. Federal Building and U.S. Courthouse in Montgomery. (Courtesy of the U.S. District Court for the Middle District of Alabama)

38 The Eleventh Circuit Historical Society

The Eleventh Circuit Historical Society is a private, our courts’ heritage through the collection of portraits, nonprofit organization incorporated in Georgia on Jan. photographs, oral histories, documents, news articles, 17, 1983. Although the Society has no legal connection books, artifacts and personal memorabilia. with the U.S. Court of Appeals for the Eleventh Circuit The Society’s permanent office is in the Elbert or the federal government, its primary purpose is to Parr Tuttle U.S. Court of Appeals Building in Atlanta. keep a history of the courts of the Eleventh Circuit as Its Board of Trustees is composed of lawyers and institutions and of the judges who have served these legal scholars representing the historical interests of courts. In this regard, the judges in the old Fifth Circuit Alabama, Florida and Georgia. from the states of Alabama, Florida and Georgia are included in the Society’s area of interest. While the Society’s archival activities are partially funded by grants and other special gifts, it primarily In addition, the Society has a broader mission to depends on members for financial support. Take pride foster public appreciation of the federal court system in knowing that, through your membership, you are in the states encompassed by the Eleventh Circuit. helping to recapture memories of past events and The formation of the Society came shortly after thus supplementing historical knowledge that will the creation of the Circuit in 1981. This timing has enlighten and enrich present and future generations. allowed the writing of history as current history, not as In essence, the Society’s accomplishments belong to research history. The Society is devoted to preserving you.

The Eleventh Circuit Historical Society Name ______P.O. Box 1556 • Atlanta, Georgia 30301 Address ______(404) 335-6395 Telephone ______I hereby apply for membership in the class checked E-mail ______below and enclose my check for $______payable to the Eleventh Circuit Historical Society. *KEYSTONE FIRMS: Please name five (5) members of your Annual Membership firm to be Society members. ______Student $ 5.00 (1) ______Judge/Individual 50.00 (2) ______Associate 100.00 ______Contributing 250.00 (3) ______Sustaining (individual) 500.00 (4) ______Keystone (law firm)* 500.00 (5) ______Patron 1,000.00

39 The Florida Bar FIRST CLASS 651 East Jefferson Street U.S. POSTAGE Tallahassee, FL 32399-2300 PAID TALLAHASSEE, FL Permit No. 43

The 11th Circuit Historical News is published periodically by the Historical Society of the United States Courts in the Eleventh Circuit. To obtain a copy or for information about the Society, please contact:

Wanda W. Lamar, Executive Director The Eleventh Circuit Historical Society P.O. Box 1556, Atlanta, GA 30301 (404) 335-6395 • [email protected]

BOARD OF OFFICERS Chief Judge Ed Carnes - Honorary Chairman Leonard H. Gilbert - President David A. Bagwell - Vice President, Alabama Suzanne E. Gilbert - Vice President, Florida George L. Murphy, Jr. - Vice President, Georgia Halsey G. Knapp, Jr. - Secretary John M. Tatum – Treasurer

This newsletter produced courtesy of The Florida Bar