the honorable john m. facciola - Historical Society of the District of

Transcription

THE HONORABLE
JOHN M. FACCIOLA
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project
The Historical Society of the
District of Columbia Circuit
United States Courts
District of Columbia Circuit
THE HONORABLE
JOHN M. FACCIOLA
Interviews conducted by:
Kali N. Bracey, Esquire
December 22 and 28, 2009 and January 15, 2010
TABLE OF CONTENTS
Preface.............................................................................................................................................. i
Oral History Agreements
Honorable John M. Facciola .............................................................................................. iii
Kali N. Bracey, Esquire .......................................................................................................v
Oral History Transcripts of Interviews
December 22, 2009 ..............................................................................................................1
December 28, 2009 ............................................................................................................55
January 15, 2010 ................................................................................................................85
Index ......................................................................................................................................... A-1
Table of Cases and Statutes .........................................................................................................B-1
Biographical Sketches
Honorable John M. Facciola ............................................................................................C-1
Kali N. Bracey, Esquire ...................................................................................................C-3
NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the
Oral History Agreements included herewith.
©
2013 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit.
The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are
trained by the Society. Before donating the oral history to the Society, both the subject of the
history and the interviewer have had an opportunity to review and edit the transcripts.
Indexed transcripts of the oral histories and related documents are available in the Judges’
Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W.,
Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the
Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on the
Internet through the Society's Web site, www.dcchs.org. Audio recordings of most interviews, as
well as electronic versions of the transcripts, are in the custody of the Society.
i
iii
Schedule A
Tapes recordings, digital recordings, transcripts, computer diskettes and CDs resulting from three
interviews of John M. Facciola conducted on the following dates:
Interview No. and Date
No. 1, December 22, 2009
No. 3, January 15, 2010
Number of Tapes or CDs
}
} All on one CD
}
The transcripts of the three interviews are contained on one CD.
iv
Pages of
Final
Transcript
1-54
55-84
56-150
v
Schedule A
Tapes recordings, digital recordings, transcripts, computer diskettes and CDs resulting from three
interviews of John M. Facciola conducted on the following dates:
Interview No. and Date
No. 3, January 15, 2010
Number of Tapes or CDs
}
} All on one CD
}
The transcripts of the three interviews are contained on one CD.
vi
Pages of
Final
Transcript
1-54
55-84
56-150
Oral History of Magistrate Judge John M. Facciola
First Interview
December 22, 2009
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable John M. Facciola,
Magistrate Judge of the United States District Court for the District of Columbia, and the
interviewer is Kali N. Bracey. The interview took place on December 22, 2009. This is the first
interview.
MS. BRACEY:
Good afternoon, Judge Facciola.
JUDGE FACCIOLA:
Good afternoon.
MS. BRACEY:
Could you provide your name and date of birth?
JUDGE FACCIOLA:
I’m John Michael Facciola. I was born in Brooklyn, New York, on
April 28, 1945. The day the partisans killed Mussolini. My family is
of Italian origin. Both of my grandfathers were born in Italy. One of
my grandmothers was as well, but passed away long before I was born.
My maternal grandmother was born in America and was a member of
a family that had 15 children. And they hail from Little Italy, Sullivan
Street, down in Greenwich Village. I’ve had the honor of giving the
Naturalization Welcome to the new citizens and I’ve frequently
spoken about those origins and the impact and influence they had upon
me. So I grew up in the very warm lap of a large, Italian-American
family. Dear friends of ours who always would visit with us on
Sunday and say, “Are you having company or is it just the 40 of you?”
But we were a gigantic family. My mother and my father were
married, I guess, in the late ‘30s, and had five children, but there was a
long period of time between us. Roseanne, God rest her soul, my
sister, is 4 years older than I am, and that it didn’t appear that my mom
and dad would have any more children besides them, and all of a
sudden came Nina, Michael, my brother, and Regina.. Unfortunately,
my mother died, a year after Regina was born. My mother was a
victim of breast cancer, which in those days was a death sentence for
most women. So, I think the last thing she did was watch me and my
sister Roseanne graduate, respectively, from high school and college.
MS. BRACEY:
From high school and college?
JUDGE FACCIOLA:
Yeah, Roseanne from college, me from high school. I went to the
local parochial school. I got a tremendous break of good fortune.
There was a Jesuit high school in Manhattan called Regis and it was
founded in, I guess, in 1908 by a family that insisted upon remaining
anonymous, and it was a Jesuit school for poor Catholic kids. In those
days there weren’t anything else besides poor Catholic kids. But you
took an exam and if you passed the exam you went to Regis and never
paid tuition. So I got a magnificent education and paid, I think, $10 a
year, which was the cost of my locker and the key on the locker.
MS. BRACEY:
And what age did you start there?
JUDGE FACCIOLA:
I was 13 years old.
MS. BRACEY:
Okay.
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JUDGE FACCIOLA:
And it was an interesting time. I still remember people my age,
remember that one of the most significant events in American
education was the launching by the Russians of Sputnik. To that point,
the U.S. had been utterly dominant after the Second World War,
technologically, industrially in remarkable ways. One night we came
home to learn that the Russians had done what to us was almost
incomprehensible, had beat us into space. Within days the American
educational curriculum changed. More emphasis on science and math.
If you grew up in those days you would hear always the phrase, “How
are we going to beat the Russians?” It’s a line in Bye Bye Birdie, if
you remember. And I still remember, while I took this exam, this
large building, I had never seen a Jesuit priest until that day. There
was one whom I later would learn was Father Brown, the assistant
principal. He had a large number of keys that he carried, and I really
thought they were going to put me in jail. Well, I got admitted to
Regis and showed up there, and there was a meeting with Father
Brown or one of the other priests as you were admitted, with my dad,
and my father looked at the curriculum which was Latin, Greek,
French, English literature, history, and some science. And he said to
the priest, he said, “Father, this is interesting that you have this
curriculum in light of all the emphasis now on science and math.” The
priest, with what I would learn would be a wonderful Jesuitical
arrogance, said, “We’ve been doing it that way for 400 years, and it
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has worked out pretty well.” So I had an absolutely remarkable high
school education, which I don’t think I could have had anywhere else.
We began Latin initially, Latin, French. Greek was added in our
second year. So by the time we left we had passable understanding of
three languages. There was advanced English literature, advanced
history, science and mathematics. It was extremely demanding place
but an absolutely remarkable experience. And there were statistics
about it that still are almost hard to believe that for an unbroken
tradition of over 50 years, every single graduate of the school won a
scholarship to college. And my class alone of 117 – quite a few, by
the way, who dropped by the wayside, who just didn’t make it to
graduation in that small class – there are, believe it or not, three federal
judges.
MS. BRACEY:
Wow, who were the other two?
JUDGE FACCIOLA:
Judge John Koeltl was my classmate. He is the U.S. District Judge for
the Southern District of New York. The other was Robert Somma,
who until his resignation was a U.S. Bankruptcy Judge in Boston,
Massachusetts.
MS. BRACEY:
What kind of student were you?
JUDGE FACCIOLA:
I should have been a better one than I was. I had my, I thought I was a
bit of an athlete. I was involved in swimming, which was very
demanding, and I should have done better than I did. So, I was about
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midrange. In a school like that being midrange is hardly an
embarrassment, but I was; I didn’t devote myself to my studies as
much as I should. But I was involved and active in a lot of things.
Politics at school, stuff like that. But I should have worked a little
harder than I did.
MS. BRACEY:
And, what kind of things did you do with politics?
JUDGE FACCIOLA:
Just class presidency and stuff. It was a very exciting time, not that I
was very much involved. But you have to remember, it was a
remarkable thing when a Catholic ran for the presidency. As late as
the late 1950s there were actually articles, and I read them, one by a
wonderful senator from Illinois, Paul Douglas, asking, “Can a Catholic
be elected President?” It was a serious question. Some of the
prominent Protestant theologian ministers in America were of the view
that that was not possible like, Norman Vincent Peale. So that was
very exciting, and I remember my sister ice skated for Kennedy in
Rockefeller Center.
MS. BRACEY:
JUDGE FACCIOLA:
What sister was that?
That’s Roseanne. But I was more in school politics than national
politics. And as I say, I should have been a better student than I was.
MS. BRACEY:
What were your favorite subjects?
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JUDGE FACCIOLA:
I loved Greek. I loved Greek. English and history were my favorites.
And I was always very poor in mathematics. It was also easy,
languages were very easy to me maybe because I grew up in a
bilingual home. But as recently as five minutes ago when I got out of
court, I could understand most of the French that we were using to
interpret to a woman who came to us from Quebec. That part of me,
those interests have remained to this very day.
MS. BRACEY:
What was your home life like?
JUDGE FACCIOLA:
Well, it was very rich and wonderful. Like a lot of Italian families, we
all lived in the same house. My grandmother, my grandfather, and my
uncle lived downstairs, we lived upstairs. And the cousins lived on the
floor between us. I grew up in Brooklyn, New York. It was a large
Italian family. Dinner was held at the same time every night. Sunday
dinner was 1:00 p.m., that’s when grandma poured the macaroni. That
describes where the macaroni has boiled and is poured into the
colander and that is a moment in every Italian on earth can tell you
when grandma pours the macaroni. I got a big kick out of it several
years later, many years later, a few years ago I was at the beach. And
one kid said to his mom, “Mom can I stay here and play?” And she
said, “Yes, but be sure to be home when grandma pours the macaroni.”
So it’s an Italian clock you can set your watch by the time grandma
pours the macaroni. And it was a house of remarkable warmth and a
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remarkable encouragement of kids. And my parents were obsessed
with our education and let nothing stand in the way of our getting it.
MS. BRACEY:
What did they do —
JUDGE FACCIOLA:
So, there was a house full of books, it was a house full of writing. My
father was an accountant, my mom never worked. My mom, in those
days, in the patriarchal culture, never finished high school. But she
loved to read and she’s the one who got me my first library card which
I always considered the seminal moment in my life. But then I’m
afraid it all came crashing around over our heads, because I graduated
from Regis on June 10, my mother died on August 1. And the world
just collapsed around us, and that led to a lot of changes in our lives.
MS. BRACEY:
What sorts of changes?
JUDGE FACCIOLA:
Well, one, my sister Roseanne had, was about to continue her
education by getting her PhD or Masters at University in Indiana,
DePaul, after graduating from Miramar. My grandmother, my
mother’s mother, now became the mother of the five of us, and
remember how young the kids were? Gina was one, Mike was five,
Nina was nine. So that changed very, very radically. So, the world
was, whatever the world was before August 1, 1962, became an
entirely different place on August 2.
MS. BRACEY:
And so after your mother died you were raised primarily by your older
sister?
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JUDGE FACCIOLA:
Well, I was then ready to go to college. So, she died on August 1 and I
must have left for college on September 8.
MS. BRACEY:
What was your favorite book as a child?
JUDGE FACCIOLA:
There were a couple. There was one called, Yankee Bat Boy. About a
guy who was a bat boy for the Yankees, a young boy. And many
years went by and I often talked about the book and my sister, Nina,
tracked it down and actually gave it to me as a present a few years ago.
And I loved that. As a child, my favorite books were, I devoured the
Brooklyn Public Library and I went there. I loved books about the,
there was a series called Midshipman Lee of the Naval Academy that I
devoured. Midshipman Lee had all these wonderful adventures.
Another one I remember, called A Young Skin Diver, is about a guy
who had been a surfer, and became a skin diver. So even then I was as
crazy-nuts about the ocean as I’ve ever been. The ocean was a big part
of our lives. We spent our summers with our grandparents out at the
end of the island and that’s where I first fell in love with the water,
that’s where I liked to fish and surf with my dad.
MS. BRACEY:
And at the end of the island, was Long Island?
JUDGE FACCIOLA:
Long Island. It was called Noyack, the village that surrounds the town
of Sag Harbor.
MS. BRACEY:
And you started going there when you were, how old?
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JUDGE FACCIOLA:
Eight or nine years old. My grandfather ultimately built a home out
there when I was 13.
MS. BRACEY:
And do you still have the home?
JUDGE FACCIOLA:
I don’t, my brother, well my sister’s dead, and over the years, we’ve
sold out. My brother now owns the home.
MS. BRACEY:
Do you remember any friends, from —
JUDGE FACCIOLA:
Oh gosh, yes. I had a wonderful group of friends. New York is an
interesting place; there’s really no such thing as a local high school.
While there are one or two people who knew, New York has always
had these specialized high schools. So, I went to Regis and guys went
to Brooklyn Tech or Brooklyn Prep or Stuyvesant or Bronx High
School of Science. So this group of guys I hung out with were very
much like that, who went to these types of schools, and they were very
close, we were very close. We were baseball-playing guys. In those
days baseball was the big thing. We played every variation of the
game of baseball you can imagine. Softball, stickball, everything else.
And played basketball a lot and football.
MS. BRACEY:
Do you keep in touch with any of those people?
JUDGE FACCIOLA:
God no, no. One of those guys was in my wedding. That was 40
years ago. I think that may have been the last time I have seen anyone,
unfortunately.
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MS. BRACEY:
So how did you decide where you were going to go to college?
JUDGE FACCIOLA:
I knew I wanted to continue the kind of education I had and I was
choosing among schools like Notre Dame and Holy Cross. And I
chose Holy Cross because of its academic excellence, because I
wanted to go to school in the East and because of its excellent
reputation. And it seemed to be the kind of thing I was interested in.
MS. BRACEY:
And had you made a decision on a college before your mother passed
away?
JUDGE FACCIOLA:
Yeah, I was already admitted to Holy Cross, yeah.
MS. BRACEY:
Was that your first choice, Holy Cross?
JUDGE FACCIOLA:
Yeah, I think so. It really came down to something like Holy Cross,
Fordham, and Notre Dame, and I chose Holy Cross.
MS. BRACEY:
What did you study there?
JUDGE FACCIOLA:
I continued the classical education for two more years. So I continued
my study of Latin and Greek. And the first two years, in those days,
Holy Cross was in the point of transition from mandatory curriculum
to a more elective curriculum and choice in major was postponed until
after the sophomore year. So, it was Latin, Greek, French, History,
and Theology and Philosophy. So, it was a school that was heavy on
what was then called Liberal Arts and there were mandatory courses in
Theology and Philosophy. You had to have so many credits in those
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courses before you could graduate. You also had to have two years of
Latin to get an A.B. And I did that. But I got involved in,
intellectually, in history fairly quickly and my initial thought might
have been to be a professor, particularly in medieval history, which is
one of my favorite subjects. I spent my junior year in Rome, and that
was quite an experience. But there I took a course in political science
and constitutional law and that began to make a lot of sense to me.
And I said, “This really is interesting.” In other words, the way I
thought about this was, the dividing line between the academic and the
judicial perhaps is the academic is entirely academic in the true sense
of the word, it is the study of something for the study of itself. What I
liked about law was that it seemed to have a practical significance of
the lives of people, as well as having a superb intellectual content that
was very, very challenging. Then in my junior year, I began to take a
few more courses in the social sciences, particularly in economics.
And I began to see how the social sciences studied the impact of
forces, would have on a society. So by that time, it was quite clear to
me, that that’s what I wanted to do. Holy Cross, they wore you out in
terms of writing. Paper after paper after paper. I was submitting a
learned paper almost every week in course after course. So, that really
was a big part of what I wanted to do. And then I remember when the
moment came to apply to law schools, on the left side of my desk, I
had applications for graduate programs in history. On the right side of
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my desk, I had an application to law school and thinking about the two
I finally decided to go with the law school ones. The seminal thing in
my experience was, I was working at the New York Public Library on
some research and I was going through the card catalog, which in
those days you did manually, and I came across a thesis written by
somebody on the use of the relative pronoun in St. Augustine, The City
of God. And I thought, I don’t think I can do that for the rest of my
life, you know. So there was always a part of me that swung more
towards the impact that the academic life has on the way we live.
MS. BRACEY:
Did you know any lawyers?
JUDGE FACCIOLA:
Yeah, maybe one or two, but no. Most of the people in my
neighborhood were blue-collar stuff. My dad was white-collar, but he
was the exception. But you have to understand that it was my father’s
burning ambition that I be a lawyer. My father was orphaned at 13.
And then was a runner on Wall Street, worked his way through high
school, and college, and you know, made a life for himself. And
throughout his life guys who perhaps were not as intellectually equal,
nevertheless, rose above him because they had Harvard after their
names and he was not about to let that happen to his children. So, he
was a – felt very strongly that I should study law.
MS. BRACEY:
And when did you first —
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JUDGE FACCIOLA:
And to an immigrant kid, making the jump from blue- to white-collar
and from white-collar to professional, are very significant jumps.
MS. BRACEY:
And what do you mean by, they are very significant jumps?
JUDGE FACCIOLA:
They are a change in status, a change in class, and a new way. They
really are. It’s a way of saying we made it. You know, we started 15
of us in a cold-water flat on Sullivan Street with the bathroom outside,
if you can believe that, in the hallway, and now there’s a JD after my
name. And that was, that was the heart and soul of what my father
was trying to achieve. For me.
MS. BRACEY:
It’s interesting you consider yourself an immigrant kid even though
your parents were born here.
JUDGE FACCIOLA:
Yeah, I do. Sure. There are a lot of people out there that didn’t let me
forget it.
MS. BRACEY:
It’s a good point. I guess two questions: first, what’s your first
memory of knowing that you were somehow different, or at least
people thought you were different?
JUDGE FACCIOLA:
The reaction of my family was very interesting because my nickname
was “Genuzzo,” Little Johnny, which is in Italian. And their reaction
that Annie’s grandson was now a lawyer, was amazing. It was as
amazing that one of my cousins was now a doctor. And one of my
cousins was now a priest, or something like that. And it was among
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that group of people truly remarkable. It still is. I’ll go back there,
went back to my sister’s funeral. My Aunt Connie, who is 91, was
interested, not only that I was, was proud that not only was I a
Magistrate Judge, but emphasized that I was the first Italian-American
Magistrate Judge.
MS. BRACEY:
Oh, was that the truth?
JUDGE FACCIOLA:
I guess so.
MS. BRACEY:
In 1989?
JUDGE FACCIOLA:
Right, ______ in 1997
MS. BRACEY:
1997?
JUDGE FACCIOLA:
First Italian-American Magistrate Judge. Here in the District of
Columbia.
MS. BRACEY:
So what are your sort of best memories of college?
JUDGE FACCIOLA:
It was a tough, tough time. It was a lot of hard work. When I got to
college, I realized my mother’s death had a transforming effect on me.
And I really said, you got to stop screwing up, I mean you know, this
is over, come on you’re not a kid anymore, wakeup. And I really,
really put my nose to the grindstone and I worked very hard. So, my
memory mostly is working hard. You know, being challenged
intellectually to the very depths of my being and I hope trying to meet
those challenges. It was not easy. I don’t have a lot of memories of
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beer bashes and chasing girls or anything like that; it was tough work.
Because I knew if I was going to achieve what I wanted to achieve, my
grades were going to be very, very important. And one of those
people who has always tested poorly on standardized exams, like the
college boards and all of those, so I knew very early on that if they had
such standardized exams to get into law school, I might be in a very
deep hole if I couldn’t point to my grades and say, look I didn’t do
very well in LSAT but here’s four years of work.
MS. BRACEY:
And you knew that in college?
JUDGE FACCIOLA:
Oh yeah, I was well aware of it. Well aware. Very concerned about it.
MS. BRACEY:
Do you remember any pivotal professors, or mentors you had in
college?
JUDGE FACCIOLA:
Oh, there were many. It was Father William Carroll who taught me
Latin. He was a gifted man and a delightful character. He entered
jingle contests. He was a real protean intellectual. But he loved jingle
contests. And he won one for Breyer’s Ice Cream. That was my
favorite. He also won the one for the Maidenform Bra, but he would
never tell us what the jingle was. And he said something really
remarkable. We were studying in Latin, satires, juvenile I guess, and
he said that we lived in a time in which satire was impossible because
you couldn’t make up what we were seeing. You know, a buffoon like
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Mussolini taking over a country then being hanged by his feet with his
mistress nearby. So he was a very important influence on me.
And Dr. Kealey was an historian who emphasized the importance
of slow, steady academic progress. How a true scholar corrects one
small thing at a time. Werner Loewy, who taught me Greek and whose
family escaped from the Holocaust. And just was a gifted man and
studying the Apology, Socrates’s Apology, excuse me, Plato’s Apology
under his command. From a man who survived the greatest tyranny
the earth has ever seen. And those were very significant influences on
me.
MS. BRACEY:
And, did you ever serve in the military?
JUDGE FACCIOLA:
Yes, I did.
MS. BRACEY:
And when was that?
JUDGE FACCIOLA:
Well, when I graduated from – you have to remember, the period from
1962 to 1966 sees a growth with the death of President Kennedy and
the arrival of Lyndon Johnson – we begin to see a steady slope
upward in the U.S. presence in Vietnam. At my graduation from Holy
Cross there was a substantial number of guys who took off their caps
and gowns and who had their uniforms underneath because they were
commissioned as officers in the Navy and the Air Force that day.
Several of those guys went off to Vietnam. Two of them died within a
year. Others were taken prisoners. So all, so wherever you looked in
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American society, guys my age were putting on uniforms and going. I
secured a deferment to go to law school but then since I was in
Brooklyn – Brooklyn had a very large allotment, that is they had to
produce a large number of people because Brooklyn is, as you
probably know, if Brooklyn were independent it would probably be
the 4th largest city in America. So, they were kind of waiting for me.
So, I think I got drafted a week or so after I got out of school.
MS. BRACEY:
Out of law school?
JUDGE FACCIOLA:
Out of law school. And that presented me with a great conflict with
what to do. My father was not at all pleased to see me get into a
uniform. He had significant doubts about the legitimacy of our work
in Vietnam and cynicism about, you know, about how the country is
corrupted by military power. So, after a lot of thinking about it, I
made the decision to enter the National Guard, which was a sixmonths’ active duty followed by six years of inactive duty. So, that’s
what I did. And that was my service.
MS. BRACEY:
And so where did you go for your active duty?
JUDGE FACCIOLA:
Initially I went to Fort Gordon, Georgia, and then did my advanced
infantry training at Fort Jackson, South Carolina.
MS. BRACEY:
Did you ever have to go to Vietnam?
JUDGE FACCIOLA:
No. No I did not.
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MS. BRACEY:
And did you have any other service after your six months?
JUDGE FACCIOLA:
I had five years of service. I was, we came down here, and I was
assigned to a JAG corps. But I mean, for that generation, those
decisions were terribly, terribly complicated and difficult. I said that I
lost two of my classmates. It is interesting, if you go down to the
Wall, the Vietnam Wall, you will see their names where there are, that
part of the Wall where it’s at its largest and that was the attack on Hue,
which was a northern Vietnam battalion that overran a Marine outpost
and we took terrible tragedies. And like so many other members of
my generation, the Vietnam War was a seminal event in our lives for
seven years.
MS. BRACEY:
And so did you see the National Guard Services a way of
compromise?
JUDGE FACCIOLA:
Yeah. And I regret it to this day.
MS. BRACEY:
Why?
JUDGE FACCIOLA:
If I had to live my life over again, I would have become an officer in
the JAG and served my country.
MS. BRACEY:
And gone to Vietnam, if possible?
JUDGE FACCIOLA:
Yes. Something was desperately wrong with the situation. Where
white guys like me went into the National Guard and Reserves and
black and Hispanic kids went to Vietnam and died. That system
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persisted for the longest period of time until it was abolished by the
draft lottery which was the year after I went into the service. There
were so many things wrong with that. There was discriminations on
the basis of race, discriminations on the basis of wealth and class. If
the Second World War was a commitment of an entire society to fight
a war, the Vietnam War was the commitment of segments of society to
fight a war that nobody else wanted to fight. It was not a good time, at
all.
MS. BRACEY:
Did you have any, you mentioned that you swam.
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
Did you have any other, and you played baseball?
JUDGE FACCIOLA:
I played basketball, you know, every kid in New York is in a school
yard playing basketball. Dribbling at Our Lady of Something. And
yeah, that was it.
MS. BRACEY:
Did you ever have any jobs when you were in middle school?
JUDGE FACCIOLA:
Oh, the usual stuff. I was a guard in a museum, the Jewish Museum
on 95th Street. And worked at a bottling factory and, you know, the
usual sort of stuff, nothing that was to write home about. Just trying to
make a few bucks over the summer. I was a camp counselor too. At a
camp out at the end of Long Island, which was a lot of fun.
MS. BRACEY:
And when was that?
-19-
JUDGE FACCIOLA:
Senior in high school, freshman in college.
MS. BRACEY:
And did you have any jobs when you were in college?
JUDGE FACCIOLA:
No, I didn’t work in college.
MS. BRACEY:
And how was your health in your 20s up until, through your 20s?
JUDGE FACCIOLA:
Despite my efforts to destroy it, very good. I began to smoke once I
stopped swimming. Drank more beer than I should. So, I was
thinking just today that the best thing that ever happened to me when I
got out of law school was I got married. And my wife and I were
committed to doing something about it, stop running around like we
had. But boy, it was, my health was about the last thing on my mind.
You know, when your 22 you think you’re eternal.
MS. BRACEY:
Right, right. And you kind of are.
JUDGE FACCIOLA:
You are.
MS. BRACEY:
How were you as a law student?
JUDGE FACCIOLA:
I was a good student. I loved it. I loved it. It was very interesting. I
went down to Georgetown sort of tentatively saying, Well, you know,
my father really wants this, but what if it’s not for me and what am I
going to do? And the first two weeks were clumsy and I couldn’t
understand what was going on. And then all of a sudden it hit me,
damn this makes sense. This really makes sense. And I can hold my
own in this area. I finally think I found my intellectual home. And
-20-
from that point on it was just no holding me back. I loved it. I adored
the place.
MS. BRACEY:
And how did you do, what was your standing in class?
JUDGE FACCIOLA:
I was 27th in my class after freshman year which got me on the Law
Review. So I served on the Georgetown Law Journal for two years,
yeah.
MS. BRACEY:
And did you have any financial assistance in law school?
JUDGE FACCIOLA:
Yeah, the, my dad worked for a company called Heublein. They since
have been absorbed by someone else and the founder of the company,
its president, a man named John Martin, had a foundation that aided
the students of the people that worked for him. And I was lucky
enough to get a scholarship to both college and law school. Which
didn’t cover my entire tuition but it was very helpful. I had student
loans in law school as well.
MS. BRACEY:
What sort of memories do you have from law school?
JUDGE FACCIOLA:
All of them of an immense amount of work but of meeting some of the
brightest, sharpest people I have ever met. And going to law school at
a time of great political and social turmoil was a remarkable event.
Areas of the law that had not been touched by previous generations,
were touched by us. For example, the draft generated a whole new
body of law – looked at draft boards and how they functioned from an
-21-
administrative law perspective. There was the discovery of the urban
poor, like Mike Tigar who was then the Editor in Chief of the Law
Review at Boalt and they produced this stunning 1800-page journal
looking at various aspects of law from the viewpoint of the urban poor.
From consumer protection, landlord-tenant, welfare rights, all of these
aspects of it. So it was a time of extraordinary intellectual turmoil.
Many things were going on in the law school at the same time. Law
school is like college is: we’re now making the transition from
mandatory curriculum, which had been dictated to a large part by state
bars from the American Bar Association to a much more elective sort
of way of looking at things. So, there was now a way to pursue
particular intellectual interests that you had in a way that probably was
not available. It was a time of transition in the curriculum itself, and a
lot more self-study and self-motivation. But the mandatory courses
were superb as well. And as I say, I just found it extraordinarily
challenging. When you put on top of that the Law Journal
responsibilities and the fact that I had to make some money, I brought
a whole new meaning to the word, tired. And, but somehow I got
through it all and each of those were significant.
MS. BRACEY:
And what were you doing to make money in law school?
JUDGE FACCIOLA:
I worked at a law firm, at a law firm here in town.
MS. BRACEY:
During the school year?
-22-
JUDGE FACCIOLA:
Yeah. And during the summers as well.
MS. BRACEY:
And what did you do for them?
JUDGE FACCIOLA:
Various law clerk materials, you know, go here, go there. Do research
on this, and research on that. Interesting, some of the things I began to
research proved to be lifelong interests. Interesting story: A case came
down, I think out of Georgia. As hard as it is to believe, there was a
time in American history when American Airlines fired stewardesses
upon learning they were pregnant. And uh, that happened, there was a
judge in Georgia, who couldn’t possibly, couldn’t even fathom what
was wrong with that. Well, he was about to learn with cases like
Frontiero and Reed vs. Reed. But those were the beginnings of that
revolution in human expectations. And that was something I worked
on. And I worked on the beginnings of the relationship between
students in a college, and the college, in terms of the administrator.
So, it’s the kinds of things that proved interesting throughout my life.
MS. BRACEY:
And you mentioned how exciting it was to have a Catholic president.
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
What was the impact of Kennedy’s assassination on your life?
JUDGE FACCIOLA:
Absolutely devastating. I mean, in its first blush, Johnson did many of
the things Kennedy was not able to do. I mean, there is no better book
about Johnson that I have ever seen than the Caro set of biographies.
-23-
But the one, Master of the Senate, the chapter that focuses on how
Johnson kept together this rickety coalition to pass the first civil rights
act of Reconstruction, is stunning. He was masterful. And he, as I
say, he did things that Kennedy could not have accomplished. But
with each passing day our involvement in Vietnam grew greater. And
his destruction is one of the great stories in American history. It’s
almost Greek in its dimension. It’s just astonishing. Caro’s working
on the fourth volume of the biography and I can’t wait because it’s
going to focus on the Johnson years and the involvement of Vietnam.
You have to remember, law schools at the time were in great turmoil
and one of the amazing things about going to law school in
Washington, is you were dead front center in the March on
Washington, and all of that was going on. The Poor People’s March
on Washington, the riots after the death of Martin Luther King, all of
that, I mean it was astonishing. When we got together, my class thirtyfive years later, that looked back on this, we say, My God, what
generation of law students saw more than we did? And it was right
here.
MS. BRACEY:
Was the law school, the Georgetown Law School, where it is now?
JUDGE FACCIOLA:
No. It was at 506 E Street. Where the SEC used to be, the SEC, now
the McDonald’s, that big building on E Street. That’s important,
because if you think about it, I’ll never forget this. On the morning, the
afternoon after the death of , I was in Professor Cohn’s class on
-24-
Federal Courts in Federal Systems, and we kept hearing sirens go
down the block. One after another. And in that day, that rickety old
building still had windows that opened. And we opened them and
looked out and could see flames coming from stores and shops on the
F Street corridor. That was the beginning of the riots. The city was
engulfed in flames, the Law School closed and we were all told to go
home. That night several of my classmates, however, were gathered
and brought back downtown to help in processing the hundreds of
people who were being arrested. That took place. This city, I mean,
there were National Guardsmen with M16s a few blocks from the
White House. The place was in flames. It was one of the most
remarkable nights in American history. I’ll never forget it.
MS. BRACEY:
And where were you living?
JUDGE FACCIOLA:
I was living in the S.W. The Capital Park South apartments.
MS. BRACEY:
How did, well what was your favorite Law School class?
JUDGE FACCIOLA:
I liked that group of classes that dealt with questions of jurisdiction,
federal power, federal courts, federal systems. In other words, I was
most interested in the intersection of the courts with other
governmental entities in the enforcement of the law. I also had an
abiding interest in criminal law as well, because that was the most
fervent, if you will, example of that interfacing. I enjoyed that. I also
liked the point where the law and the social sciences and sciences
-25-
intersected. For example, dealing with the mentally ill, which became
a lifelong interest. Looking back over my law school career it’s
amazing how few courses I didn’t enjoy. But it was that group of
federal courts, and you know, and at this point that was in great period
of transition. Remember we got the Warren Court which is nothing
less or more than a revolution into criminal law. We have the
extension of federal authority by Johnson, continued by Nixon, who
ironically presides over the largest growth of the federal government in
American history. Changing and shifting definitions of federal judicial
power being asserted, particularly in the South, in the enforcement of
the Brown decree. So, if you were intrigued, as I was, how the federal
courts are managed, how they enforce the power of the U.S., you
couldn’t pick a better era to study that issue.
MS. BRACEY:
How did law school sort of shape your sort of philosophy on the law?
JUDGE FACCIOLA:
I became, I would imagine that those judges who had the greatest
influence on me in terms of their opinions, were judges who saw the
limitation of judicial power, vis-a-vis the other branches of the
government. So, I was particularly fond of Holmes, and Brandeis, and
Frankfurter, Harlan, and people who saw limitations that way.
Because I thought that was a very exciting and an interesting limitation
on judicial power. So my philosophy was shaped by the fact that, to
this day, this country should be governed by the people’s elective
representatives. And the assertion of judicial power should be held,
-26-
should be limited as the Constitution requires. That philosophy has
been with me a long, long time. Which is interesting because I
consider myself an extremely liberal Democrat who is a great believer
in the assertion of federal power. But I would prefer, I feel it must
come from the elective branches as opposed to the nonelective branch.
MS. BRACEY:
So you are not someone who believes in the overreaching, I guess?
JUDGE FACCIOLA:
That’s right. In other words, in many respects I applauded everything
the Warren Court accomplished. But I also question whether that
assertion, that extraordinary assertion of judicial power, was the best
thing for our traditions and the way we governed ourselves. A
question I still have in my own mind.
MS. BRACEY:
JUDGE FACCIOLA:
So, it’s not the result, it’s the how it was done?
That’s true. Yeah. And also, being the incredible obligation imposed
on judges to explain why they are doing, why they are doing. You
know Brandeis said it, “We do our own work.” We judges have to
justify why we’re doing something. Merely saying “Fiat” will not do.
I want it done that way. That’s not gonna work. So, that, in other
words, judges who cut corners, never gain my respect. Judges who
slug threw the tough ones and explained what they were doing in a
justified manner, they are the ones who are my heroes.
MS. BRACEY:
Did you have a roommate in law school?
-27-
JUDGE FACCIOLA:
Yes. And I had several of them. But the one guy I was closest to, we
are still close.
MS. BRACEY:
Who was that?
JUDGE FACCIOLA:
His name is Richard P. Walsh, Jr. And he went to Holy Cross the year
before me. My roommate left school, leaving me kind of stuck with
an apartment, got rid of that apartment, then I moved in with Dick.
And Dick and I became inseparable. Dick was in my wedding party,
and is the godfather of both of my sons.
MS. BRACEY:
Where is Dick now?
JUDGE FACCIOLA:
He’s in Albany.
MS. BRACEY:
What does he do there?
JUDGE FACCIOLA:
He is an extraordinarily good trial lawyer. I used to tease him about
dating women who were half his age, I think he is now working on
1/3. He’s a very good-looking guy. But my wife, every time she calls
him, “Who are you dating, when are you going to get married?”
MS. BRACEY:
Has he ever been married?
JUDGE FACCIOLA:
No.
MS. BRACEY:
Well, that’s good.
JUDGE FACCIOLA:
Well,
-28-
MS. BRACEY:
Or maybe not.
JUDGE FACCIOLA:
He’s been a wonderful godfather to my sons. He’s a man of such a
remarkable generosity. Few people believed this, but I wouldn’t have
believed it myself, that when his godsons, my sons, got married, he
gave both of them, literally blank checks. He said you fill it in. How
about that?
MS. BRACEY:
So, it’s almost unheard of, I think it is unheard of. How did you meet
your wife?
JUDGE FACCIOLA:
I hung around with great guys, Jeff, Walsh, Tom Nadeau and some
other guys, and they in turn hung out with these women who lived up
in Glover Park and one of them was named Angela Pinto and they
were of the view, Italians could only date Italians, that there was a law
to that effect. And while Angela was lovely, I was really much more
attracted to her good-looking blonde roommate, and we met quickly at
a party and then a friend of mine, Don Monihan, had these horrific
Bloody Mary parties on Sunday mornings and would make these big
buckets of Bloody Marys. These were in the days when the Redskins
had a football team and it was always a thrill to go to a Bloody Mary
party and watch the game even if you were going to watch the game at
a bar. And I remember Gloria, we met again, she dropped a ladle all
the way down to the bottom of this big pitcher of Bloody Marys and
being the gentleman that I am I rolled up my sleeve and retrieved the
-29-
ladle and I don’t know, from there it was magic. She was then
teaching in Rockville. She was from upstate New York, from
Poughkeepsie, New York. And we met, began to date, and got
married shortly after I graduated.
MS. BRACEY:
From law school?
MS. BRACEY:
And how many children do you have?
JUDGE FACCIOLA:
I have two sons.
MS. BRACEY:
And how old are they now?
JUDGE FACCIOLA:
John is 36, Danny is 35.
MS. BRACEY:
So, after law school, at some point you end up back in New York?
JUDGE FACCIOLA:
Yeah, I always had dreamed to go back to New York. New York was
home. Brooklyn was home. To this day, if people say, “Where are
you from? “ I say Brooklyn. I haven’t been there in 40 years, but I
say Brooklyn. So, it was home, and I wanted to go home. And always
dreamed about going back to Brooklyn and I wound up with Gloria
living in a home, in an apartment that was 10 blocks from where I was
born.
MS. BRACEY:
And was the rest of your family up, too?
JUDGE FACCIOLA:
Well, what had happened in the meanwhile, my father got remarried.
My mother was then dead for 10 years. In fact, my father and I got
-30-
married, and I got married in the same year. So, my dad was there, he
still had young children living with him. By then, I think Roseanne
and Nina were married and had gone. So, yes my dad was still there.
MS. BRACEY:
He still had young children with his new wife, or your brothers?
JUDGE FACCIOLA:
Yeah, with him, my brother and sister. She was their stepmom.
MS. BRACEY:
And what was your first job out of law school?
JUDGE FACCIOLA:
I was an Assistant District Attorney in the city of New York.
MS. BRACEY:
And how did you decide on that job?
JUDGE FACCIOLA:
I dreamed of it all my life. I always wanted to be a prosecutor. In
Hogan’s office. Hogan’s office had this astonishing reputation for its
integrity, its honesty and the extraordinary experience it provided
people. And I wanted to be a part of that.
MS. BRACEY:
And when did you first know that?
JUDGE FACCIOLA:
Oh, freshman year of law school. There was this guy I idolized named
Jerry McGuire who had been with that office, and I followed his
career. It was the kind of career I wanted.
MS. BRACEY:
And who was Jerry McGuire?
JUDGE FACCIOLA:
Jerry McGuire had been an Assistant District Attorney who would
ultimately go to the Department of Justice, and before he passed away.
-31-
MS. BRACEY:
And how did you meet him?
JUDGE FACCIOLA:
Jerry McGuire’s brother was killed in the Second World War. His
wife was my mother’s best friend.
MS. BRACEY:
His wife was your mother’s best friend? I see, okay. So you have
always wanted to go to this office?
JUDGE FACCIOLA:
Yes.
MS. BRACEY:
So, what happens on your first day of work?
JUDGE FACCIOLA:
Well, let me back up a bit. At that time, I thought I might be interested
in a clerkship. And I was interviewing. If you knew the geography in
New York, the Southern District of New York courthouse is here, the
DA’s office is here, and I had been offered a job by Mr. Hogan. And I
said I wanted to complete these interviews with judges, because I
thought it was a matter of courtesy. I went to see a certain judge and
he shall remain nameless. But he interviewed me and asked me a little
bit about my law school career. And then he said, “Can you drive a
car?” I said, “Yes, sir, I can drive a car.” He said, “Do you ever mix
drinks?” I said, “Yeah, I made a few bucks as a bartender once.” He
said, “Well, the reason I ask is, you can, on Fridays I expect you to go
up to wherever I’ve got to pick up my wife so she can go shopping at
Bloomingdale’s and then we have a little reception in the house. I
expect you to come and be the bartender.” So I said, “Thank you very
much judge.” He said, “Well, I’ll let you know.” And I was walking
-32-
past the DA’s office, and I said, “Let’s see, all of this hard work, and
all of these years, and I’ve got to spend my time driving his wife
around?” I walked in to the DA’s office and I said, “Mr. Hogan
you’ve got an assistant.” Never looked back.
MS. BRACEY:
That’s a great story. So, what was your first day of work like?
JUDGE FACCIOLA:
It was terrifying. What had happened was, I took the bar, but after I
took the bar I had to go in the service. My colleagues who took the
bar and passed were all admitted. I missed that admission because I
was in the service, I couldn’t get there. So I had to come to New
York, get admitted at the bar before I could be a DA because I had to
go to court. Well all of that happened, okay, so I get back to court
when all of my contemporaries are all scattered and I got back to this
little office and it said go to Part 1C. So, I went down to1C which is
part of the court and it was this strange place. Part 1C is kind of like
the sewer of the New York City system. It has prostitutes, gamblers,
and in those days they actually prosecuted bookies and people who
took bets and for people that always, you know, guys selling ice cream
on the wrong side of Central Park and, for reasons that always eluded
me, people didn’t get adequate heat. And in New York the court is run
by a “bridge man,” and I turned to him, I had assumed I would go
there to watch someone else handle the part. And I said, “Excuse me,
I’m the new DA. Can you please tell me who is the assistant assigned
here?” And he said, “Some guy named Facoola.” And I said, “Oh my
-33-
God.” So, I think I had been admitted about 1:00 and it was now 1:30
and I was in court trying cases. And, they were numbers-running
cases. I think I lost the first five. And then, fortunately, blessedly,
court ended and we went through some other things. And I went
upstairs and I was ready to resign. I figured I would go in and give my
resignation. Went to see Frank Rogers, my boss, and I said, “You
know, Mr. Rogers, I want to resign.” He said, “Why?” I said, “I lost
my first five cases. You know I just got admitted at 1:30, by 3:00 I
lost the first five cases. This career is off to a hell of a start.” So, he
said, “Who were you before?” And, I said, “Judge X.” He said,
“Judge X, he acquits everybody.” I said, “Now you tell me.” So I had
my baptism by fire. They were great believers in on-the-job training.
MS. BRACEY:
And so, but you were there for —
JUDGE FACCIOLA:
Four years.
MS. BRACEY:
For four years? And what kind of cases did you try, after —
JUDGE FACCIOLA:
Basic street crime. I was assigned for a brief period of time to the
Rackets Bureau. But I worked particularly on, on what was then
Medicaid fraud, on a dentist who was ripping off the city. As well as
doing some fundamental stuff. Then I was assigned to a general part,
where I tried street crimes, burglaries, robberies, so forth. Then I was
specially assigned to the Special Narcotics Branch where I worked on
-34-
the joint U.S. and State Task Force, prosecuting large-scale narcotics
distributors.
MS. BRACEY:
What kind of narcotics are there in the early ‘70s?
JUDGE FACCIOLA:
Heroin was the big thing. There’s a Claude Brown book, Manchild of
the Promised Land, has an interesting study of life in Harlem. And he
talks about how the plague comes when heroin hits and it impacts
every aspect of everyone’s lives. In those days it was heroin. We
didn’t see that much cocaine. Cocaine would change places with
heroin as the years went by.
MS. BRACEY:
What was your life like as an ADA?
JUDGE FACCIOLA:
Very busy. But a lot of fun. We were blessed that there were, I think,
19 of us had started on the same day. Fresh out of school and close
friends like brothers and sisters and we became very close, and are
close to this day. I still go to the Giants/Redskins football game every
year, with Kevin McKay, who is now a judge in New York. We met,
Assistant District Attorneys, we recently got together at dinner
honoring him and it was like no time had passed at all. We were like
brothers, still are.
MS. BRACEY:
So you were there yesterday?
JUDGE FACCIOLA:
Uh, no. That was last, I go to New York to the games.
MS. BRACEY:
You go to New York?
-35-
JUDGE FACCIOLA:
Yeah, the game, and I think it was in September. But we were very
close, we were inseparable. That was a, you know, we were young,
either some of the guys were still single, some had just got married.
We had wonderful parties. It really was a remarkable time.
MS. BRACEY:
And when did you get married?
JUDGE FACCIOLA:
I got married in the summer, June 27, 1970.
MS. BRACEY:
So you graduated from law school in ’69?
JUDGE FACCIOLA:
Yes. Then I went into the service, got out of the service, and we got
married in June.
MS. BRACEY:
And you started, but you started at the ADA in —
JUDGE FACCIOLA:
In ’69, but I no sooner started than I went into the service and had to
come back.
MS. BRACEY:
I see. So did your crazy harrowing day happen in ’69?
JUDGE FACCIOLA:
Yeah. I had come back out of the service, so it was late ’69, yeah.
MS. BRACEY:
So, how did being an ADA sort of shape your career?
JUDGE FACCIOLA:
Well, first of all, it was the integrity of Mr. Hogan which was
legendary. So the notion that the prosecutors are quasijudicial
officials; you are not there to win cases, you’re there to do justice. The
standards to which I was held both intellectually and morally, the
honesty, learning how to deal with the people, particularly people who
-36-
were different from me. Police officers, and victims, and defendants
seeing what an urban criminal justice system really worked like. I
mean, it was just the most astonishing experience. I thought I was a
fairly sophisticated kid from Brooklyn who knew which way was up.
I knew nothing, nothing, until I got there. And I learned how the
world really worked. Al McGuire, the wonderful coach in Marquette
who became a very good radio and television broadcaster, was a New
Yorker. And he always said to his students, Look, go to college, get
your degree, then become a bartender and a cab driver, do each of
those for a year, then you’re educated. He should have added, and
then be an Assistant District Attorney when you get out of New York.
And it was just, it was an astonishing experience. You walk into this
place, and there would be 48 prostitutes that had to be arraigned, and
then a murderer who was a few feet away and people yelling at each
other. Judge bugging you, hundreds of cases that had to be taken care
of. The volume was staggering. So you learn, you learn on the fly.
You try to get some sense in your head, what’s worth my time, what
isn’t, go, go, go, go.
MS. BRACEY:
And did you enjoy it?
JUDGE FACCIOLA:
Immensely. Yeah.
MS. BRACEY:
And, how do you think that experience has impacted your being a
judge?
-37-
JUDGE FACCIOLA:
It had a profound impact on my desire to return to public service after
private practice, because it was the ideal. I thought it was the ideal to
which I held myself, you know, disinterested public servant. And it
has had that impact on me throughout my life. And again, when I
became a judge, disinterested public service motivated by integrity and
honor, and honor and honesty. Those, that’s what that office was all
about. That has had a profound influence on me.
MS. BRACEY:
Were you involved in any local bar associations?
JUDGE FACCIOLA:
No. It was hard to find time to do those things. And there wasn’t
much involvement in that, no.
MS. BRACEY:
And anything about sort of local politics?
JUDGE FACCIOLA:
No, we weren’t permitted. No, Hogan was ferocious about that. We
were not permitted to be members of political clubs or working
campaigns, doing anything like that. He considered that absolutely
inconsistent with our jobs.
MS. BRACEY:
And why did you leave?
JUDGE FACCIOLA:
It was really personal reasons. A lot of things were going on then. It
was quite clear to me that my wife was not particularly delighted about
living in the city. The relationship between my father and my
stepmother continued to degenerate. And we Sicilians are physically
incapable of minding our own business, so we kept getting sucked into
-38-
that and I began to think my own marriage was threatened and decided
we better get out of here. It was the toughest decision I ever had to
make. But I just felt to preserve what we had, and now that I knew we
would be having children soon, I felt we just had to make our own
move. And I think New Yorkers are great at deluding themselves that,
well, it’s only Washington. It’s amazing how long those 4 hours on
the Jersey Turnpike are. You don’t go back there frequently. Because
the kids came along. And all of a sudden you’ve got soccer and band
and God knows what else. So that was a tough decision for us.
MS. BRACEY:
When were your kids born?
JUDGE FACCIOLA:
John was born in ’74. Danny in ‘75.
MS. BRACEY:
And how did you choose Washington?
JUDGE FACCIOLA:
Well, we had been here, we met here. We had a lot of friends here.
And they encouraged us to come back down. And we thought again,
deluding ourselves into believing that we were not that far away. We
liked the town and it seemed to provide some opportunities for me.
The firm for which I had been a law clerk now invited me back as an
associate. And that seemed to me to be a real good opportunity.
MS. BRACEY:
And what firm was that?
JUDGE FACCIOLA:
It was Wilkinson, Cragun & Barker. It no longer exists. It dissolved
when I went back into public service, 1982.
-39-
MS. BRACEY:
Just to go back for a second. Did you have any sort of major cases or
significant cases as an ADA?
JUDGE FACCIOLA:
No. I don’t think so. I didn’t have one single thing I worked on. I
jumped around, did a lot of different things.
MS. BRACEY:
So you came down to work at the firm, and what kind of work did you
do?
JUDGE FACCIOLA:
That was the strangest thing. Wilkinson, Cragun & Barker began its
existence representing Indian tribes in claims against the U.S. The
Indians had been lobbying since at least the turn of the 20th Century to
get the government to waive its sovereign immunity so they could sue.
It finally bore fruit in 1944, the creation of the Indian Claims
Commission which was set up to hear these claims. These were
historic claims. So the claims of this group of Indians, they would be
displaced from their lands in the 19th Century, and Wilkinson who
founded the firm was Ernest Wilkinson, and he was in New York at
Hughes, Hubbard & Reed, Charles Evans Hughes. And the story is
that Native Americans came to see Mr. Hughes because he was so
prominent. And Wilkinson was a westerner. He was from Utah. He
was really the only guy in the place that could understand what they
were talking about, because he understood treaties and reservations
and federal power over Indian tribes. And he took that business with
him to Washington. And in his life secured the largest judgment then
-40-
ever written against the U.S., in the Ute case which was staggering, the
fees they brought in, so that was the origins of the firm. Then as the
years went by it picked up other businesses. The Indians have timber
resources and one of the lawyers there became very familiar with the
industry. They began to represent natural resources companies, who
were, for example, timber companies, who had had their land
condemned, for example, to create The Great Dismal Swamp. There
had always been a healthy Federal Communications Commission
practice, because several of the members of the firm were Mormons.
The Mormons have a gigantic, independent broadcasting system, that’s
grown from crystal radios to radio, to television to cable, to satellites.
That yielded business. We also had a trade representative practice
with the American Society of Travel Agents. And then another group
of the lawyers developed what was then quite a remarkable and arcane
field of telecommunications. That was a point in American history
when all the data providers, in order to transmit their data over the
phone lines, had to hook in to what was then the Ma Bell System. And
the regulation of that became, gave birth to a lot of litigation of an
administrative nature. And it’s astonishing. I still remember sitting at
a partners’ meeting in a room like this reviewing each of the reports
the lawyers had done, and one lawyer raising his hand had said, “What
the hell is a modem?” That’s how long ago it was, and that’s how new
this technology was. And that was another aspect of the practice.
-41-
MS. BRACEY:
And did you work on all of those things —
JUDGE FACCIOLA:
The strangest thing. And this is really weird. I came down thinking I
had put the criminal law behind me and was going to turn to some
other things but that was in July, I believe. And Easter, Easter Sunday,
there had walked into the offices of Wilkinson, Cragun & Barker,
Maurice Stans. Maurice Stans was the Secretary of Commerce in the
Nixon administration. Up to more recent times, he is and has always
been the greatest fundraiser in American history. Political fundraiser.
Raised millions. And he raised much income for Richard Nixon.
Stans in his capacity as chair of what was known as the Committee to
Re-elect the President, he was the financial chairman, so he was
responsible for getting all of the money. As you know, from the
Watergate years, some of the money that was collected wound up in
the pockets of the men who burglarized the Watergate Hotel. And
from that came Watergate. And Deep Throat’s amazing words,
“follow the money.” So, I walked in and it turned out that I was the
only guy in the place who knew something about the criminal law.
And suddenly I was working on Mr. Stans’ case, which would
consume the next four years of my life. Those cases were interesting.
The first aspect, of course, was his testimony before the Senate
Watergate Committee explaining how it was that money that came into
the campaign wound up being used as money to hush the Watergate
burglars so they wouldn’t tell who hired them. It was the first aspect.
-42-
He was never indicted in Watergate. However, during the course of
that, he got indicted in New York with John Mitchell, the Attorney
General. There was a notorious financier named, Robert Vesco, kind
of the Bernie Madoff of his time. And Vesco, the government had
been after Vesco, and the theory of the government’s prosecution of
Stans and Mitchell was that significant changes were made in a
complaint filed against Vesco by the SEC in consideration of the
contribution that Vesco made which was quite large.
MS. BRACEY:
To the Nixon campaign?
JUDGE FACCIOLA:
To the Nixon campaign. That case was tried, I think, over 48 days in
New York City. Bob Barker did most of the trial; I worked
peripherally on it. But Stans and Mitchell were acquitted. Stans then,
no sooner did that end, than the Watergate Special Prosecution Force
began to look at Stans’ involvement in the receipt of corporate
contributions. And ultimately he plead guilty to two technical
misdemeanors and that ended it. During all of that there were also
civil cases that had been brought against him and I handled that. So
that just consumed me for almost 5 years. In a way I never
anticipated. Then that ended and I began to work in the more
traditional areas of the firm’s practice.
MS. BRACEY:
And did you have any mentors or people you liked to work with there?
-43-
JUDGE FACCIOLA:
Oh yeah. The guy I was closest to was named Angelo. And Ange was
just a remarkable guy. And Ange was as good a professional marketer
and business getter as there ever lived. And he was the guy who really
developed these whole lines of practice. For example, the
representation of the timber companies, and he was really a gifted
man. And he was a very loving person. And I still remember on my
birthday he had matching T-shirts made that said, “Italian Stallion.”
What I didn’t know was that Ange was dying of leukemia. And he
died that Easter Sunday. And with him, a lot of the heart and soul
went out of that law firm. We also endured the death of someone I
was very close to, Patricia Brown. Pat, she was, she came to town
when there were few women lawyers in this town, it was just
unbelievable. First of all, all women were assigned to trust and
estates, because that’s where the widows and kids were. We used to
have firm breakfasts at a particular club in town and they insisted that
the women enter through the service entrance. And as soon as Pat
arrived, we stopped having breakfast there very quickly. And she was
just a very dramatic person, a very close friend. I worked with her on
a lot of Indian-related issues. And you won’t believe this, she died of
a brain tumor when she was hardly 40. And this law firm just kept
suffering these extraordinary and devastating losses. And that, and
other forces were pulling it apart. And the forces pulling it apart were
greater than the forces keeping it together. So we agreed to dissolve,
-44-
and dissolve we did. It just disappeared. It splintered. Some people
took, for example: the regulatory practice went somewhere. Some
took the timber company away, went somewhere else. And some of
us, like me, went back into public service.
MS. BRACEY:
Did you decide, had you been deciding to go to public service before
all those things started to happen?
JUDGE FACCIOLA:
The last year there was just miserable. Because, as you know, nothing
spreads through a law firm like rumors, the life blood of what’s going
on there. You’re not going to resolve what’s going to happen here.
And I was hopelessly confused about the future. I just didn’t know
what was going to happen. I didn’t know if I wanted to go with one of
these splinter firms and do that. I really was in a very bleak period of
time. And then I gave it some thought, and I remember this: I was
driving home one night and I was listening to somebody on the show
who said, “If you want to figure out what you want to do for the rest of
your life do two things: ask yourself: if I had all the money in the
world, what would I do? Two, write your obituary.” And you can
kind of figure out what you wanted to do and I thought about this and I
said, well looking back over this, I was at happiest in my life when I
was in public service. And I think that’s where I want to go back.
And that was a hell of a decision to have to make because we now had
two kids. And my wife at that point had decided to not go to work at
least while the children were young. So we were living on one
-45-
income. And obviously that income was going to dramatically
decrease and that was a tough call. But we made it, and it obviously
was the right call.
MS. BRACEY:
And where were you living, did you live in the city?
JUDGE FACCIOLA:
When we first came to town, we lived in the Hamlet on Seminary
Road. And that’s where our first son was born. And Gloria was
pregnant with our second son and living on top of us were, I don’t
know who the hell they were, whether they were fandango dancers or
whatever, but the noise was horrible. And I said I don’t care what it
costs, I’m not going to bring my second son into this house, we need a
home. And we found a home. And by hook or by crook we got the
money together to buy, and I still remember talking to my father – it
was $65,000 for this house. Interest mortgage rate I assumed was 7 &
½ percent. You know, my father said, “Gee that’s a lot of money.”
But we moved into that house and I think Gloria gave birth 4 days
later. So, that’s where we were. But I must say, that dissolution from
that firm was a punch in the stomach. I really thought, it’s over, you
know, this was a nice little career and you better go do something else,
son. And I thought, maybe, well maybe this law thing is not where I
want to be or what can be and maybe I should go into business or
something like that. And then, as I say, I thought about it, and said,
well public service made the most sense for me. Maybe there’s some
hope. So I did something that was in those days very unusual. Given
-46-
all of my experience, remember I had been a partner in a law firm and
now I just wanted to be another Assistant United States Attorney. And
most people looked at me and thought I was crazy. Because you can
imagine how dramatic the pay cut was and the rock was rolling down
all to the bottom of the hill. The judicial logic has that you are an
AUSA for 5 or 6 years, then you go out and make the big bucks. I was
doing the reverse. And I was appreciably older than everybody else.
MS. BRACEY:
Right, you had been out of law school at this point —
JUDGE FACCIOLA:
Well, it was now —
MS. BRACEY:
It was ’82?
JUDGE FACCIOLA:
It was ’82. So I had been out of school since
MS. BRACEY:
’69?
JUDGE FACCIOLA:
’69, yeah. Thirteen years.
MS. BRACEY:
So, who did you work for, at the Justice Department, I guess as the
AUSA . . . . ?
JUDGE FACCIOLA:
I arrived and was assigned to the Appellate Division. And I worked
there for Mike Farrell. I spent a good long time there. And then an
opportunity arose in the Civil Division and Mike encouraged me to
take advantage of it. At that point, Judge Royce Lamberth was the
Chief of the Civil Division. And he graciously decided that I could
join the Civil Division and proceeded to work me to death. The Civil
-47-
Division at that time was a terribly exciting place to be – it still is – but
the quality and the scope of the litigation is just astonishing. When I
first arrived the relationship between Mayor Barry and the federal
government had degenerated. Judge Bryant, had placed specific
limitations on the number of people who could be admitted to the DC
Jail which was causing tremendous problems. Now, the statute, I still
remember its name, DC Code 24-425, talks about an initial
commitment to the Attorney General, and Barry said that meant all
these prisoners were Ed Meese’s problem. So that led to a whole
series of confrontations. For a period of time, the federal government
took all the prisoners convicted at the Superior Court into federal
prisons but then couldn’t do it anymore. And we knew that the
tinderbox was being struck. We wondered when the time would come
when Barry would actually refuse to accept the prisoners. In other
words, the prisoners would get into the bus, would be taken by the
Marshals Service to the jail, and he would say, “I can’t admit, you’re
not going to be admitted, they’re Ed Meese’s problem.” So, I worked
on every aspect of that, with Judge Lamberth and John Bates. And for
that entire summer we prepared the papers seeking the TRO early in
the spring. And I remember that summer I could not go home until I
first called the Marshals Service to see if they had been admitted with
the prisoners and ultimately it broke and we litigated the case before
Judge Hogan.
-48-
MS. BRACEY:
So every day he would take that, and then one day he said he
wouldn’t?
JUDGE FACCIOLA:
We would, and ultimately, I forget exactly what the trigger point was,
but the trigger point happened, and at that point we sought immediate
relief before Judge Hogan. But as I was learning how to do that I was
taking a lot of responsibility for all the Bureau of Prisons’ litigation
and I was also taking more responsibility for cases involving the
confinement of the mentally ill at St. Elizabeth’s. So I became kind of
the point person on this institutional kind of litigation that sought to
enforce judicial decrees against recalcitrant authorities that had people
in their custody. And that’s where I became involved with the
representation of what was left of the federal government’s
involvement at St. Elizabeth’s, jail problems, as well as doing some
other ordinary stuff like torts and Title VII cases.
MS. BRACEY:
And how long did you do that for?
JUDGE FACCIOLA:
From ’82, I guess that was from, I don’t remember, let’s see, I’m
trying to remember when I went, I think I was in Appellate for almost
three years from ’82-’85, probably showed up at Civil from ’85 and
was there until I became Chief of Special Proceedings. So, at that
point, things were developing to the point where I really loved to work
in Civil, I loved working with Lamberth and Bates, it was a fantastic
experience, it was wonderful stuff. Important litigation, a lot at stake,
-49-
on my own, with my own cases. But then there came the opportunity
to become Chief of Special Proceedings and all of a sudden the pieces
fit. Special Proceedings dealt with collateral attack on criminal
convictions. I knew something about that. It dealt with confined
people, it dealt with the mentally ill. And the position opened and I
applied for it and I received it and then I became Chief of this arcane
sort of place called Special Proceedings and I handled that in a lot of
different ways. First of all, I supervised the work of other assistants
who were assigned to defending collateral attacks on convictions. And
I supervised the work of those assistants who on a weekly basis
attended a call on the mental health calendar, that is those people who
had been found not guilty by reason of insanity who wanted to get out.
I also became intensely involved in determinations of competency
because I had to train people on how that worked. Made the decision,
well we were going to those cases where a defendant was found
incompetent and we couldn’t prosecute him. I also now became
involved in, continued my litigation involvement in the jails, and also
the litigation involving St. Elizabeth’s, which was an effort. The
Marshals Service decided they were simply paying too much money to
house federal prisoners at St. Elizabeth’s and they began an effort to
take them out of that, which brought litigation before Judge Urbina
and I decided to assign that to myself. In other words, as Chief of
Special Proceedings I would try to keep my hand in as a litigating
-50-
lawyer, and would assign specific matters to myself to handle because
I simply did not want to be an administrator as important as my
administrative duties were. So all of those pieces began to fit together
and I became Chief of Special Proceedings and, as I say, I assigned
specific litigation to myself. And that proved to be an extraordinary
blessing, because I was one of the few people, assistants, who could
claim civil experience and criminal experience and that proved very
important when I was considered for being a Magistrate Judge.
Special Proceedings is this curious place, where you can just about do
everything you want. I always used to crack that I did anything I
wanted to because the U.S. Attorneys never had an idea what I was
doing. I still tell that, I recall that.
MS. BRACEY:
And what were sort of the highlights, I guess of that time?
JUDGE FACCIOLA:
The highlights were a remarkable string of success. I mean, I think in
all of those years, I think we lost one case, of the thousands we
handled. And it was just a golden time. I had wonderful people
working for me. Throughout my career, and it probably has something
to do with the impact my mother’s death had on me and my close
friendship with women lawyers like Pat Brown. I was firmly
convinced that I was not going to have people work for me who had to
go in through the service entrance, or you know, did trust and estates
because that’s what women did. So, I always, for most of my period
as a supervisor, I had a mostly female staff. And that was very
-51-
exciting for me, because I was able to work with women, and I was
able to work with two women in particular and create what really was
one of a few completely successful working, part-time arrangements
for moms. And I was very, very proud of that, that what we
accomplished there. And I just had wonderful people working for me
doing good work that I was very proud of. And we had a wonderful
reputation. As you know, the go-to people, the people who handled
the complex stuff without moaning, and when I supervised people, I
always would tell them I know where you’re comfortable but you’re
going to go where you’re not comfortable, because that’s the only way
you’re going to learn. And they’d give me a hard time and then of
course they’d do this rare, unusual thing and come back and tell me
how much fun it was and how much they grew. So, I took great pride
in that.
MS. BRACEY:
And what was your view of the bench when you were in Special
Proceedings?
JUDGE FACCIOLA:
I thought that it was an extremely conscientious bench. These cases
are very demanding because they involve long records, they involve
things that happened many, many years ago, and they are very
challenging and there’s a natural inclination of the judge saying, My
God, I did this once and you had an appeal, why are we going back?
But once that was overcome, I can’t remember a single instance where
I thought that a judge had not conscientiously done what was
-52-
necessary to be done, under very demanding circumstances. Easily the
most demanding aspect of this was what happened with two cases
called Bailey and Richardson. Bailey and Richardson were gun cases.
And until they were decided by the Supreme Court the courts had
given a very broad definition to the words of the statute used to carry
during a drug trafficking and they narrowed the scope of that. What
happened was all of a sudden that placed a serious question on a whole
number of convictions around here, that hadn’t been answered in this
court. And I decided that if I, after some preliminary discussions on
how we’re going to handle this and realized it would not work if this
were done among assistants, that it would be one constant standard
applied, I assigned all of the cases to myself. So all of the cases were
personally assigned to me. On the other side, the Federal Public
Defender, A.J. Kramer, assigned Federal Public Defender, Sontha
Sonenberg and we became a working team almost confronting the
same problems. And I remember one time the judges got so used to
the two of us, that I actually would tease her as if I were George Burns
and she were Gracie Allen, and when we’d finish I’d turn over and
say, “Say good night Gracie.” And the judges would laugh. There
was another great moment before Judge Penn. Before we came in he
had twenty lawyers all in black suits, and they had come there to seek
enlargement of time of 7 days within which to do something and they
all left the courtroom and Sontha and I were handling all by ourselves
-53-
almost 300 cases and I got up and I said to Judge Penn, I said , “Judge,
Sontha and I stayed in the courtroom, we were concerned on that last
case you didn’t have enough lawyers.” He laughed. And somehow we
got over that. And we got through this tough, tough hump and I was
put in a position where I had to make some policy judgments, you
know, and we worked it out, don’t ask me how. We somehow got it
all done. And I would say, that was, looking back on it, that was an
extraordinary thing to be involved, and it just proved you know, that’s
what public service provides that no one else does – its extraordinary
ability to expand and do things without anyone looking over your
shoulder, just doing the right thing as best as you can make it out to be
done. It was very tough, I mean, you know. The Special Proceeding
Section that was really my intellectual home. And my goodbye was
really, literally a very tearful event for a lot of people, including me. It
was my professional home for 15 years, and it was a very good home.
Remember when I started there, I was uncertain whether I would
continue to practice law. I left there as a judge. That’s not bad.
MS. BRACEY:
No, it turns out it was a good choice.
JUDGE FACCIOLA:
Yeah, it was. Sometimes I think things choose you. There’s sort of an
inevitability about it.
STOP
-54-
Second Interview
December 28, 2009
interviewer is Kali N. Bracey. The interview took place on December 28, 2009. This is the
second interview.
MS. BRACEY:
Okay, we’re starting again, with the oral history of Magistrate Judge
Facciola. And we’re here on December 28 beginning with your
appointment as a Magistrate Judge.
JUDGE FACCIOLA:
Yeah, well actually the story begins a few years before then. I had
applied for the position that went to Judge Robinson and then applied
for a position that went to Judge Kay. So, the third time, apparently,
was a charm. By the time that had happened, I had been with the U.S.
Attorney’s for 15 years and I had been practicing law for about 25
years, and I thought it would make sense to make application. The
application process was, first of all, a written application, and then at
the suggestion of Judge Richey, I made it my business to visit with
each of the judges. Some of whom I knew well because I had
appeared before them, and others whom I did not know as well. Some
I had known from my experience at the Superior Court and they had
come over here. So, I interviewed with all of them. A committee is
appointed pursuant to the statute. The committee has lay members and
-55-
members who are from the profession and the practice of law. And I
interviewed with them. The list was progressively narrowed as time
went by. So I think they started with 150 and that got down to X and
then to Y and then it was down to the last 3 or 4 people. And then I
remember my interview.
MS. BRACEY:
How did the positions become available?
JUDGE FACCIOLA:
Well, in that case, Judge Attridge retired, announced his intention to
retire. A Magistrate Judge must, under a statute, must give no less
than one year’s notice of whether he will take another term. So, Judge
Attridge has decided he would not take another term. And his term
had expired. Now, once you hit 70 you must be certified every year,
by the judges, okay. But Judge Attridge announced his intention to
retire and the position became open.
MS. BRACEY:
And how long are the terms?
JUDGE FACCIOLA:
Eight years. So, I’m in my second term.
MS. BRACEY:
So, you had left off at your interview.
JUDGE FACCIOLA:
So then I had the interview with the judges, and I thought that went
well, and then the time went by and I kept my fingers crossed. And I
got the phone call and they told me to go buy a robe. And so I did.
And then there was another process, which is a process of vetting me
by the FBI, and that took quite a period of time because they went
-56-
back to high school. And I filled out forms about my experience. It
was strange that it took so long, because obviously I was an Assistant
United States Attorney and had at least a moderate amount of security
clearance. But they interviewed a lot of people about me, and they
interviewed me on several occasions. And I gave them my history,
and so forth. And I still remember it was, it was interesting. This was
a period of time, if you remember, when there were a lot of concerns
about nannies, remember that? And I remember a lot of questions
about our cleaning lady, we had to explain who she was and we always
paid our taxes, and I think they interviewed her. So, I thought that was
kind of funny.
MS. BRACEY:
They interviewed your cleaning lady?
JUDGE FACCIOLA:
They interviewed my cleaning lady. We really loved her very much.
She was almost a part of our family. She had a son who had some
troubled times and we tried to help out there, my wife being a teacher.
So, the vetting process ended and then I was told to arrive and to
come. And I believe I started, something like on August 4, and then
my investiture would be later in October. Now, shortly after, I think
the day they announced it, the next day I got a letter from Judge Kay,
welcoming me. Alan and I had not known each other before then, and
we chatted, and then, I had told him how much I was looking forward
to it, and that was the beginning of a friendship that’s very deep, and
has lasted until today. And then he and Judge Hogan were very fond
-57-
of an intern, young woman named Julie Anna Potts, and I was hiring
kind of off-season, and they said, “Well you’ve really got to interview
this young woman.” And I’m funny when it comes to personnel
questions, I’m very instinctual. And I met Julie Anna, and we went
and got a cup of coffee at the old National Building Museum, I was
still at the U.S. Attorney’s office, and I said, “Well, you got the job.”
And she seemed to be stunned. But we began together at that time.
She was a graduate of George Washington. And she was my first law
clerk. And I learned last week, I’m delighted to say, she’s now
become General Counsel of the Senate Committee on Agriculture, at
the ripe old age of 33. So, God bless her. So, we began, it was nice,
because the first month nobody knew we were here, so we could kind
of get set up and go to work, and then I began in criminal in
September. Now that time was one of the most remarkable things I’ve
ever encountered. I had only been a Magistrate Judge for a few days,
and of course having been an Assistant, I knew the run-of-the-mill gun
and drug cases. And I was, my chambers was on the first floor, and I
was sitting there minding my own business working on something and
these three guys with suits show up. Now, that probably was a
Thursday, and the story about Monica Lewinsky had not broken. If
you remember it broke over the weekend, and it was on all of the
Sunday talk shows. So, but they brought me a search warrant to seize
the semen-stained dress of Monica Lewinsky and I became one of the
-58-
first people in the U.S. to learn of this and I’m afraid I wasn’t very
judicious. I was used to cops saying they wanted to break-in an
apartment to find cocaine, and I got to about, to page 3, of all this lurid
detail, and I said, “Holy shit, he did what? Where?” So, ever since
then, you know, I have always told people I should keep the pen, and
you know I don’t think the Clinton library would be very interested in
it, but, so that was amazing. It became my introduction to what the
most wonderful thing about this job is; you never know what in the
world is going to come in the door. You know, every expectation you
have is critically defeated by reality and that was it. So then I began
doing my work.
MS. BRACEY:
So, did you sign the warrant?
JUDGE FACCIOLA:
Of course. And I think she got it cleaned and they never did get it. I
don’t know. Jake Stein and Plato Cacheris would ultimately represent
her and they’re both good friends, and I don’t know, I never asked
them what happened to it. But it was, it was very interesting. We had
that summer, we called it Monica Beach. It was a warm summer, as
they all are, but this was particularly hot, and I guessed in the first
week in the investigation, one of them got criticized, one of the
reporters, or photographers, that somebody got into the building, one
of her friends, and nobody took a picture of it. So every day there
would be three guys across the road and we called it Monica Beach,
because they would come with beach chairs, and one guy would
-59-
obviously have to go get the coffee and one guy would go get the
donuts, and the other guys would get the newspaper. And they’d just
shoot a picture of everybody coming in and out of the courthouse. So
I was taking my laundry over to the drycleaners here and I had shirts
and they took my picture. And Judge Robertson came in, and he was
teasing me, and he said, “That’s probably your dirty laundry.” It’s
interesting sometimes when I show people around, they are all faded
now, but for a couple of years, you actually could walk over there and
you could see, it said CBS, CNN, they had their designated spots on
that, on the sidewalk out there.
MS. BRACEY:
It was all very scientific.
JUDGE FACCIOLA:
Yeah, it was. But it was, as usual it was an exciting and interesting
time to be around in the Court.
MS. BRACEY:
JUDGE FACCIOLA:
Did you have any sort of training or was that your training?
No, not really. There was very little training. Now, the training before
I arrived was nothing, but then it gets very intense very quickly. And
you go to what’s called baby judge school. And you’re off the
premises and we went to San Antonio, and there’s an intense, at least
week-long training. And then I did that. I think we went twice. And
the first aspect of it was an introduction to criminal and civil and then
we followed it up with additional trainings, particularly on civil and
negotiations, so that really was where my training took place. And
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that was, that’s done by the Federal Judicial Center. Ironically, I am
now a member of the board of directors of the Federal Judicial Center,
so —
MS. BRACEY:
So, you know how to help shape those trainings?
JUDGE FACCIOLA:
I hope so.
MS. BRACEY:
And what did you learn about, sort of unofficially, how the court
operated?
JUDGE FACCIOLA:
Well, I learned fairly rapidly that the system of assignment was
idiosyncratic. In other words, there wasn’t the same sort of wheel for
which I was used to. You filed your paper, and, you know, instead,
the judges would assign Magistrate Judges to particular matters. So I
realized that my life would be a function of having criminal every third
month, but then of having whatever came to me from the other 14
judges, in no systematic way.
MS. BRACEY:
And did you develop a particular relationship with any of the judges
that effected —
JUDGE FACCIOLA:
Well I knew almost all of them. So that was, that was, but I knew
some better than others. I didn’t know Judge Friedman as well as I
would get to know him, or Judge Sullivan, but I became very close to
them as years went by. So it was, it was, I don’t remember a point of
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time, where no one knew me, everybody just about knew me, but they
knew me at various levels.
MS. BRACEY:
And is that the way the assignments work now?
JUDGE FACCIOLA:
Yeah, they still work that way. Yep.
MS. BRACEY:
Okay. And so then how would you get an assignment, does it show up
in your —
JUDGE FACCIOLA:
Well, we have what’s called the 295 Forms. So, it can happen a lot of
different ways. A judge can say I want Facciola to handle this
discovery dispute. Does a 295 issue as an order? Sometimes the
phone would ring, and it would say, “John, I’ve got these people
they’re ready to kill each other, can you spend some time with them,
and I’m going to assign this to you.” And then, more systematically
matters would be assigned to me for settlement. And then they would
come in and we would get the case and immediately set a date for the
people to come in and begin the settlement process.
MS. BRACEY:
And how did you, did you sort of earn a reputation as being someone
who could facilitate the settlement process?
JUDGE FACCIOLA:
Yeah, don’t ask me how. I came here, unlike Alan, the difference in
Alan’s and my career are striking in the sense that Alan actually made
a living as an arbitrator and mediator for a period of time, before he
became a judge. That was not true of me.
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MS. BRACEY:
And who is Alan?
JUDGE FACCIOLA:
Alan Kay. So, when I came here, while I unquestionably participated
in settlements, I had no experience as a mediator, and I learned an
enormous amount from Judge Kay about how to approach it. And as I
explained, Magistrate Judges go to training. But it was primarily onthe-job training. Something I had to learn how to do. And try to grasp
what was going on. And in retrospect I think one of the advantages I
had is I came to it utterly ignorant of a preconceived way of how to do
it. And I had to respond to what was occurring before me and in front
of me. And that was good.
MS. BRACEY:
And so how did you access Judge Kay’s knowledge?
JUDGE FACCIOLA:
Just when I talked to him. We became very close, very quickly. I still
remember the first day I was supposed to take the bench, and I
couldn’t get the zipper on my robe up, and he helped me. And the two
of us were laughing so hard, that he could hardly do it. So, and that
became a relationship that has been, we’re notorious, it is said of the
two of us, one guy in frustration said, “You know it’s not, it’s bad
enough that you have a similar sense of humor,” he says, “the problem
is you have the same sense of humor.” He said, “I think you use it on
Mondays and Wednesdays and Fridays and he uses it on Tuesdays and
Thursdays.” So we have been known as two people who never take
themselves very seriously. We have this ridiculous love of old comics
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who do what is called the Yiddish shtick. And bad jokes, Henny
Youngman, and all of this stuff. We’re the only two guys on earth left,
on earth, who remember any of this. But tomorrow night they will, the
Kennedy Center Honors will honor Mel Brooks who is out of that
generation of Mel Brooks, Woody Allen, Carl Reiner, those guys, and
that’s our kind of humor, you know. A guy goes into the doctor, he
says, “Doctor I can’t do this.” The doctor says, “Don’t do that.” So
that’s the kind of thing Kay and I do all of the time.
MS. BRACEY:
Do you use it in court?
JUDGE FACCIOLA:
All too frequently. And, but I just can’t resist the temptation. It’s
really a lot of fun and one of the great joys of being a judge is that the
lawyers take themselves very seriously. And being able to stick the
pin in is a lot of fun. The one story I love about Judge Urbina, did you
ever hear this one?
MS. BRACEY:
I don’t think so.
JUDGE FACCIOLA:
He’s got a room full of these lawyers in this big pharmaceutical case,
and they’re all in black suits, and they’re all stiff as boards, and he
turns to one of them and he says, “This drug is used to lower anxiety?”
He says, “Yes.” He says, “And it makes one feel better in times of
depression or great stress?” He says, “Yes.” And then he said, “Did
you bring any?” So that kind of stuff is one of the things I really
enjoy. And, you know, last week a lawyer said, I was trying to press
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him to agree to do a deposition by video conference. And I said,
“What’s the difference between watching the Cardinals play the Cubs
in Wrigley Field, and being in Wrigley Field? It’s the same thing,
isn’t it?” He said, “No, your Honor. I want to smell the peanuts and
the popcorn.” And I said, “I’ll buy your crackerjacks and sing God
Bless America at the 7th inning stretch if you’ll go along with this.”
So I enjoy doing that.
MS. BRACEY:
Did that work?
JUDGE FACCIOLA:
Nope. But I got a laugh.
MS. BRACEY:
Right. So, in terms of your mediation style, what have you learned
that’s helped you conduct the mediations?
JUDGE FACCIOLA:
It’s funny. There came a point after I’ve been doing this for a couple
of years, when I thought, you know it might be valuable to teach a
course in this and learn what I can. So I wrote to the, you know, usual
suspects that publish law books. And I said I’m thinking about
teaching this course. And you know within days they come charging
in here, and I had a whole pile of them. And I was going through them
and I said, “You know it’s a good thing I never read these because I
break every rule that, and I’ve learned first of all, it is very much an
individualized process and that attempts to rigorously say what’s right
and what’s wrong ultimately fail. That’s because you’re dealing with
human beings”. And the first thing I learned about this, is you have to
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have the patience of a saint. You cannot rush this process. You know,
it’s one part seduction, its one part therapy. It has a time, it has a
place, and it has its own dimension like any other human activity. And
you just have to play that out because you are, after all, getting people
to do, act against what is the normal way they would approach a
problem. That is, let’s fight. And propose to them a way that’s not
fighting, even though up to this point in the case, all they’ve been
doing is fighting. It’s a different mindset. So, the first thing I’ve
learned is patience. The second thing I’ve learned is that people
wonder why judges, Magistrate Judges, in particular, seem to do this
better. And I think I’ve figured that out. I’ve got a robe. And what I
mean by that is, that these poor people have been battered from pillar
to post. Depositions and interrogatories, it’s all been very artificial.
I’m probably the first judicial officer who can say, “What happened?”
And they can let it all come out. So I’ve learned the ability to listen.
It’s very, very crucial. And the third aspect that I think it is, always be
faithful to the rules of the game. And I use the word game not
pejoratively but as a compliment. It is a game, and is a game worth
playing. Litigation is a game, as well. It’s a little more highfalutin,
but it’s because people have to act in a certain way. But in any good
negotiation it has a discipline to it, and that discipline has to be
respected. The greatest most important thing is respecting the
autonomy of the parties. This is your lawsuit. It doesn’t belong to me.
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It doesn’t belong to anybody but you and how it begins and how it
ends, finally is entirely up to you. And that autonomy can be
liberating or it can be terrifying. You know?
MS. BRACEY:
For the litigants?
JUDGE FACCIOLA:
Yeah. It’s like your kid going off to school. There’s one part of him
that can’t wait to get out of the house and go to college. There’s
another part of him that says, “What’s going to happen when I walk
out the door, who’s going to take care of me?” You know? And it’s
the same thing. So there is a tendency in that I think for most people
to respect their autonomy but need counseling and guidance. And that
counseling and guidance can come from the lawyer but can also come
from me if they want it, and they almost always want it. So people
who look at our styles, which is an interesting exploration, would say
of my style as being slightly more evaluative than Alan’s. So I may
say, “You really want to consider this aspect of this,” while Alan will
say, will not do that. And he’ll approach it in a different question. So
that’s the first difference in style. But again, that’s very much a
function of our personalities.
MS. BRACEY:
And so you’re, and you’re saying you ought to consider this, in terms
of the weaknesses —
JUDGE FACCIOLA:
This is going to go on for a long time. You’re relatively close to
retirement. I think I can hammer out a deal with them, okay? They
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will be willing to pay you more if you retire. That’s a big, big
decision. I don’t want you to make it today, but I want you to think
about it. That kind of a thing. That could be liberating in one sense, it
also can be terrifying. And people react very differently to it. But
most of them deeply appreciate the guidance. Now, in that sense, a
judge can do this somewhat differently than a private mediator. A
judge can reasonably be expected to be a little more evaluative. While
a private mediator that might be considered intrusive by counsel. So
it’s a fine line.
MS. BRACEY:
And when you mentioned that you got this stack full of how to
conduct a mediation books. What rules do you remember, thinking
that you —
JUDGE FACCIOLA:
Oh, you should fight about who goes to whose office. That was a big
deal in one of the books. I stopped reading as soon as I read that.
Because I knew that this was the kind of nonsensical stuff that I never
could take seriously. Now this is not to say that an enormous amount
of social scientific research should be done in this process. It is
curiously understudied from my point of view.
MS. BRACEY:
So that conclusion was not research-based? It was just —
JUDGE FACCIOLA:
No. No. But the question we don’t have, for example, Judge Shaffer
in Denver has been doing something that I should have done 12 years
ago. When his settlement is unsuccessful, he makes sure he keeps a
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record of the last number that was rejected. And then he watches what
happens at trial. And he’s beginning to collect that data. And to see
where it takes us. Nobody has really been doing that in a socially
scientific way, at least that judges have quick access to. And so the
process really is well worthy of a greater understanding and
differentiation between what is successful and what’s not successful.
And that remains to be done. But stuff about who goes to whose
office is not what we need.
MS. BRACEY:
Have you started doing, keeping those sorts of records?
JUDGE FACCIOLA:
No, I haven’t. I can tell you in every case I’ve ever had, I have my
notes of the last settlement conference. Sometimes, but you have to
remember, though, even if I have been “unsuccessful,” it may
nevertheless settle. Sometimes my job is to get the ball rolling. And
then the dynamic is different. Then the dynamic gets to what I would
call, the closing price. All right? Even if they leave me and they are
$20K apart, that will probably narrow as time goes by. So, it’s
interesting how few cases I can track, because even if I don’t settle
them, they somehow wind up being settled. But I’ve had cases that
have gone both ways. I’ve had cases in which plaintiffs turned down a
lot of money and got nothing. I’ve had cases where plaintiffs turned
down a lot of money and got even more. That’s the point. That’s
what we should study.
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MS. BRACEY:
So that people have some, everyone knows what the result could be.
JUDGE FACCIOLA:
Yeah. I mean, the point is. There’s a wonderful book, I just finished it
this weekend, called The Good Lawyer, by David Luban who’s at
Georgetown. And when you come right down to it, that we have an
adversary system is very much a product like everything else of our
history. And you know the notion of the law of combat, of having a
crusader on all of your side, they are very much ingrained in the
common law that we inherited. But the real question is, of all the ways
to settle this controversy, what is the best way? And that’s what we
have to study. But we are so engrained in doing it that way. It’s very
hard to jump out of our own skins and examine our self, you know?
You know, one thing I learned in that classical education, was, you
know, Socrates always said, “the unexamined life is not worth living.”
And that’s the problem. We’re so enmeshed in the process, we don’t
step back and say, “Well, why do we do it that way?”
MS. BRACEY:
And that’s because there’s too many stick holders who don’t
necessarily want you to get it done.
JUDGE FACCIOLA:
Yeah, that’s right. Yeah. That’s right. Now in terms of other things
I’ve learned, certainly from employment cases, I have had confirmed
for me the wisdom of the statistical base, shows that when you ask
people what’s important in their jobs, money comes in a poor fourth.
Particularly, at this time when so many people are out of jobs. And
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maybe this is why the Europeans are so critical of us. But we
Americans take our jobs very, very seriously. They really are wrapped
up in our self-worth and I knew that kind of abstractly, but only by
doing settlements do I appreciate that, because we’ll be talking about
something, money or whatever, and then I’ll turn to the plaintiff, and
say, “What happened?” And it all comes pouring out. “Yeah, they all
went to lunch. Do you think they ever took me to lunch? Do you
think they ever would do that? And training, they all went to training.
Did I ever get to go to training?” It all comes out, all of this stuff.
And you realize you could of given this guy all the money in the
world, and you would not have —
MS. BRACEY:
He wanted to be at lunch?
JUDGE FACCIOLA:
Yeah, he wanted to be at lunch. And he would still feel as if he had
been cheated out of something to which he was due. And now as we
see in our economy that people are losing work. I mean, you know,
mature guys, men and women in their 50s or 60s, they can’t talk about
this without almost immediately beginning to cry. And as I say, the
Europeans who might say, “Those American are crazy, you know?
There have got to be other things in one’s life.” Try to understand
people as you search for alternatives. Consider how they are
important. I mean, it may sound stupid. But maybe a retirement
lunch, is what this case needs. And the most magnificent example I
ever saw of that was, the toughest case I ever had was, a couple of
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years ago two off-duty police officers were both in line at some
restaurant or bar, and a fight broke out, and both of them went to break
up the fight. It got out of hand, and both of them drew their guns.
Each was unaware that the other was a police officer. Neither of them
were wearing their badges. One killed the other. Both of them, this is
astonishing, were the sons of police officers. So, we tried to settle that
case. And one officer’s mother was the principal of a school. And
she, I had, when I was in the U.S. Attorney’s office, I was a part of a
group of assistants who adopted that school, and I went over there, and
so I knew her, and my wife’s a teacher, and we just got chatting about
our children and her husband was a police officer, her daughter was a
police officer. This is a cop’s family. And I noticed that she was
wearing around her neck, her son’s badge. And what really broke her
heart was there was an investigation of what happened that night, and
perhaps because of its existence her son was not given the traditional
honors given to a police officer who dies in the line of duty. That
really broke her heart.
MS. BRACEY:
It was a District police officer?
JUDGE FACCIOLA:
Yes. And one of the things we worked on was to see if she could meet
with the chief of police just to talk about that and explain it. Now, you
might, in the world, the way the world looks at things, you’d say, well
you know, what’s the money and all of that? Money had nothing to do
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with it. That’s what we have to do when you settle cases, where are
these people hurting? And how do you alleviate that?
MS. BRACEY:
And did that one settle?
JUDGE FACCIOLA:
Yeah. Yeah. All the money in the world is not going to bring her
back her son. Right? But she had to come to grips with that, and deal
with it, and so did I. I mean there are terrible stories in me. We have
cases, you know, people being hit by Metro buses and having to watch
the video tape of the accident, and babies dying and thanks to some
problem in a hospital. I mean, there’s a lot of tears. You know, we
Magistrate Judges kid, that we’re the only judges in America who keep
Kleenex in our chambers. And we have to. That this can be a very
emotional process. In a way, you know, if I have two business people
here, and they are fighting over a contract or something like that, I can
leave them in a room, and get out. That’s what they do all day. He
says 10, he says 20, they reach 15. You know, they know this much
better than I do. But when there is this, this emotional aspect of this,
in other words, people still look to the system of justice to be a system
of justice, to right a wrong and to vindicate the violation of some
sacred trust. The justice system may or may not be able to meet their
needs. I mean, all we have is money. But dealing with that
confrontation is the heart of what we do.
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MS. BRACEY:
And so you mention having the mother of the slain police officer meet
with the chief of police?
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
Do you ever, can you think of any, sort of other, sort of nontraditional,
nonmonetary, I guess, that you’ve worked out at settlement?
JUDGE FACCIOLA:
Yeah, Yeah. I had a situation where the guy, they loved this guy. And
he was a very good man, and he had worked for them for years, and he
fell off the wagon. And he got loaded, and they said, “Look we’d love
to have him back, but he drives a truck. What are we going to do if he
shows up loaded?” And I said, “Bring him here.” They said, “What?”
I said, “Here’s the deal. If he shows up, and you think he’s drunk, all
right? I’ll stop whatever I’m doing and we can get together and talk
about it.” And they all looked at me like I was crazy, and then they all
agreed. I’ve never heard from them since. Okay? But I often will
introduce the notion of coming back to me for an additional mediation
if the deal they work out goes sour. And that’s very important. It’s
one thing to tell somebody, well you have your rights under the law
and they can’t retaliate against you, but that’s not a lawsuit. And
that’s more of the same. So, I’ll preserve my jurisdiction, and they’ll
come back, and I will continue to work with them. And that I find, I
think it’s very important in a mediation for the people with whom you
are working to understand you have a dog in the fight, that this is just
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not another case and they’ll leave and you’ll go on to do something
else, that you want to be invested in this because it is crucial and very
important. And the mediator has to convey that. You’ve got to care.
Now it’s interesting because the traditional wisdom of people of whom
I admire like Herb Cohen. He always says, “I care, but not too much.”
That’s one way. You know, it is a fair criticism of what I do to say of
it, what I am doing is relieving them of solving their problem. There’s
a responsible school of negotiation that says you never want to permit
these people to think that their problem is your problem. It’s their
problem. And it’s less their problem if you – they won’t get invested
in trying to solve it. Those are competing and warring ends. I don’t
think there’s one answer. But in terms of my own personality, I have,
I can’t wash my hands of this. That’s just not the way I do things. So
it’s an interesting process. It’s like kids, you know, I mean if you,
there’s always that fine line. When do you push them out of the nest,
and when do you keep them? Some judges, as I say, will say that one
of the bad things about the mediation process is that we permit lawyers
to be as unreasonable as possible and not to learn how to deal with
each other. Because then they come to the judge and the judge yells at
them. I don’t know.
MS. BRACEY:
Then they’re deluding themselves?
JUDGE FACCIOLA:
That’s a risk I’m ready to run.
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MS. BRACEY:
Right.
JUDGE FACCIOLA:
To try to accomplish other things.
MS. BRACEY:
And you mention that in the truck driving case with the alcoholic truck
driver. They never came back. Do other people ever come back?
JUDGE FACCIOLA:
Yeah, sure. They’ll come back, and it will turn out that, it will turn out
that there may be other ways to look at it, there may have been a
misunderstanding, or it may turn out and they’re back at each others’
throats again. There’s nothing much I can do. One of the problems
we have with the employment situation is when the people go back to
work there’s—
MS. BRACEY:
They still don’t get taken to lunch.
JUDGE FACCIOLA:
Yeah, that’s a problem. And now there’s a new atmosphere there. But
time can heal all wounds. Because people come, the people go. The
people who were abrasive to each other then may be in different
situations. So you always got to hope that things can be worked out. I
mean, anything is better than carrying these crosses for six or seven
years. I mean, it’s almost torture for people to go through this. And if
I can bring that to an end, you know, I’ll run whatever risk I can to do
it.
MS. BRACEY:
How long were you at, were you on the bench before you felt like you
really got it?
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JUDGE FACCIOLA:
I still don’t. The day I figure I got it, I’ll quit. No, I mean that there’s
always something to learn every day. I think I became fairly more
comfortable with the settlement process recently after doing it for
about 10 years, and with the litigation process on the criminal side, I
think I’m really comfortable now. But now there’s a whole new wave
of things I have to learn because of electronics. And the computer
revelation, and cell phones, and PDAs, and searches of computers. It
is a very new world. So with that, there’s always something new to
learn. But I don’t think you ever really get up in the morning and say,
I’ve got this locked. There’s always this wonder and what’s coming at
me, did I get it right? Making sure I’m looking at everything, you
know, am I prejudging this? Am I really thinking it through? So, I
guess you get a little more comfortable and there’s no substitute for
experience but there’s always that sense of what’s next, a sense of
wonder that the process can be so complicated.
MS. BRACEY:
JUDGE FACCIOLA:
What about sort of the collegiality of the court?
It’s remarkable. Yeah, I mean, it’s astonishing. We get along
famously. We’ve been blessed by Chief Judges who are collegial.
The thing I always say is, I always count the number of seconds
before, between Judge X says, “I’m jammed up, can somebody take
motions duty?” And the response, it’s usually about 30 seconds. So,
we’ve always had that here. And there are various ways to go about it.
The Chief Judges we’ve had are very inclusive in their thinking. They
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are not “tyrants from on high,” we get along very well. I think it’s
crucial that we try to have lunch together every day. And that’s very
important. That may seem kind of silly, but it’s a way of putting us in
the same room and getting us to talk to each other. We socialize
together, our families know each other. It’s just a very, it’s a very
interesting atmosphere. People from outside would be quite surprised.
There are other courts where, unfortunately, it doesn’t exist. But we’re
also blessed geographically, we’re all in the same place. We have to
—
MS. BRACEY:
In the same building?
JUDGE FACCIOLA:
Same building. We have to get along.
MS. BRACEY:
__________ physical building. Right, so if you are in a broader sort
of—
JUDGE FACCIOLA:
Yeah, Texas, I understand it, two judges are 300 miles from each
other. So, yeah.
MS. BRACEY:
It’s hard to get along. More difficult.
JUDGE FACCIOLA:
More difficult, yeah.
MS. BRACEY:
And how does that sort of, how does your relationship with the other
judges influence your work?
JUDGE FACCIOLA:
Well, it’s very easy to pick up the phone when you have guidance or
help, or to work things out. It’s that, and also the atmosphere breeds I
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think a sense of confidence. I mean, you have to remember that vis-àvis the District Court Judges, they are my Court of Appeals. So I am
never afraid to do what I got to do for fear of being criticized. I know
I may get reversed, but I know it will be for a principled reason. It
won’t be because of some petty jealously or anything like that. And
that’s a very liberating feeling.
MS. BRACEY:
And you mentioned that the District Judges were your Court of
Appeals. Have you ever been reversed and had a conversation about
it, or —
JUDGE FACCIOLA:
Yeah. I’ve been reversed but I never had a conversation about it.
What’s done is done.
MS. BRACEY:
Do you take that and use it for your next —
JUDGE FACCIOLA:
Yeah, it’s usually so idiosyncratic. It’s only occurred, I think two
times in twelve years. So, it’s not that common. But when it happens,
you know, I appreciate it. Very interesting issue. In a settlement, I
became troubled by the fact that I thought the lawyer might find
himself in a difficult position of advancing simultaneously the interests
of a child and the child’s mother in a particular matter. And I came up
with a stratagem of appointing amicus for the child and I was reversed
on the grounds that I had no business of intruding on the fundamental
relationship between a mother and a child. I think reasonable people
could differ about that. But, so what, you know? And in those
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instances, you know, I have somewhat different views. But you learn
pretty early as a judge that differing views are perfectly consistent with
collegiality and you can’t let one interfere with the other. Because if
you do then you get petty jealousies and tyranny and a lot of other very
unacceptable things.
MS. BRACEY:
Do you have any sort of relationship with the Court of Appeals
Judges?
JUDGE FACCIOLA:
Yeah. Merrick Garland and I were Assistants together. I’ve gotten to
know many of them because they have lunch with us.
MS. BRACEY:
They have lunch as well, too?
JUDGE FACCIOLA:
Yeah. Not in the same number as we do. But those that do, seem to
come all the time. So, they’ve become friends. And there’s a lot of
good-natured joshing about that. As you can imagine, people sticking
the pin in each other. It’s a lot of fun.
MS. BRACEY:
So, what about your relationship with the attorneys that appear before
you?
JUDGE FACCIOLA:
It’s been good. I mean I, I can’t, I’ve had, you know looking back
over my career, I remember two times when I got angry. And now I
regret both times. I just don’t, when I began my career as an Assistant
District Attorney in New York, there were these old crotchety judges
who just were terrible, they just yelled at people and all that, and I
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guess that experience shaped me, and I just don’t like to conduct
myself in that way. And as I say, the two times I’ve lost my temper I
lived to regret it and promised myself I’d never do it again. So, to tell
you the truth, when I am tempted, I’ll take a recess, go in the other
room, take a couple of quick deep breaths, blow off some steam and
then come back out.
MS. BRACEY:
A self-imposed timeout?
JUDGE FACCIOLA:
A self-imposed timeout. Exactly.
MS. BRACEY:
Do you ever impose timeouts on other people?
JUDGE FACCIOLA:
Yes, I do. I would say, “Counsel I think we better take a break here,
and you better be a little more careful with what you’re saying. Don’t
call other people a liar in open court. Don’t do that. You’ll live to
regret that. Take it from me. Let’s do that.” Cooling-off periods are
very important.
MS. BRACEY:
Do you care to discuss any of the outstanding, good —
JUDGE FACCIOLA:
I think that, well, I don’t know. The quality of the bar has been, in my
opinion, is very good. I can’t single out any one of them. But there
are some, you know, one thing that amazes me is how ferociously
devoted they are to their clients. I may disagree with the contentions
the lawyers are making, but very few of them ever leave it in the
locker room. There is a ferocious dedication to the client’s interest.
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And I think that’s very good. This is a good strong bar, I think as bars
go. The one concern I have is that it’s a relatively small trial bar, and
it never seems to be getting much bigger. And I think the way things
are going it’s not going to get any much bigger.
MS. BRACEY:
And you mean criminal and civil?
JUDGE FACCIOLA:
No, more on the civil side. The criminal bar still is going to be the
Assistants, and the Federal Public Defenders and this good cadre of
people under the Criminal Justice Act that we appoint, and that’s a
good strong bar that knows what they’re doing. On the civil side, what
we have is, the old are getting older and the young are not coming
around. A lot of reasons for that. In the old days, you could cut your,
you know cut your eyeteeth on a slip and fall case. Insurance
companies don’t pay for that anymore. You know, they give a guy
5,000 bucks and say, either settle it, or try it for that money and don’t
come back here. So, the problem is, and since we settle so many
cases, I don’t know where the young lawyers get their training in civil
matters. They are taking endless number of depositions but that’s one
thing, but trying a case is quite a different thing. And it’s a major
concern I have about the future. Now in terms of the quality of the
bar, one of the things my law clerks always say, and I think it’s quite
true, one of the problems we have is, the good are very good, and the
bad are awful. There are some —
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MS. BRACEY:
The range is —
JUDGE FACCIOLA:
Yeah, the range. I mean, it’s interesting and there are some who I’m
deeply troubled by. Whether they are, really know what they’re doing.
MS. BRACEY:
And that’s the civil and the criminal?
JUDGE FACCIOLA:
No, not in the criminal side. The criminal side will stop it because it’s
not an effective assistance of counsel. But on the civil side, there is
some work that has to be done there in improving that. In other words,
there’s just not a bar we can turn to and say, you know, these young
people can do this. There’s no substitute for the experience. I mean,
when I was an Assistant, for example, the Assistants would try
misdemeanor cases before juries. Well, that was considered ultimately
a waste of time because all you had to do was limit the exposure to six
months and it could be tried by judges. So what was gained in
efficiency was lost in terms of, I mean, in getting that experience, you
know. I mean, you don’t want that your first case be a rape or a
robbery, you know? Shoplifting at the Target will do.
MS. BRACEY:
Right. And on the civil side are you concerned about the plaintiffs’
bar or the defense bar, or both sides?
JUDGE FACCIOLA:
Both. Yeah, both sides. The problem is you don’t see a new group of
people coming up and you say, oh this one’s really good and you
know, you’ll see them once and never see them again. The exception
to that is the employment bar which I think has a tendency to get a lot
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of repeat business. But other than there, on the civil side, I just don’t
see this accumulation of young people that are going to do this and do
it for the rest of their careers. It’s just not going to happen in this
market. Which is unfortunate.
MS. BRACEY:
And the market is not getting any better, I guess?
JUDGE FACCIOLA:
Not from what I can tell, yeah.
MS. BRACEY:
Is there anything you can do about that?
JUDGE FACCIOLA:
No. I mean, it’s the same old story. That’s the way the society is
going. If no one wants to pay that amount of money to pay those
lawyers to do that thing, there’s nothing anybody can do about it now.
I’m not among the group of people who say well, you should use pro
bono work to do things. I mean, I think you should do pro bono work
because it’s worth doing. Whether it’s going to give you valuable
experience or not, it’s important. That’s the true important thing. By
the same token, certainly you can encourage young lawyers to do that
kind of stuff but to do it for the right reason. It just may not yield the
kind of experience they hope.
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Third Interview
January 15, 2010
interviewer is Kali N. Bracey. The interview took place on January 25, 2010. This is the third
interview.
MS. BRACEY:
So, it is the morning of January 15, 2010, and where we left off was
sort of the state of the legal world and I think we’re going to move on
to law clerks. Hiring, and choosing, and how great they are. So, how
many law clerks, just of, sort of how many staffed —
JUDGE FACCIOLA:
Well, when I first arrived here, to succeed Judge Attridge, he had
already a secretary and I came out of a culture which was quite
different from Judge Attridge because he was of a generation that
wrote things out in longhand or dictated, and I was word processingdependent from the U.S. Attorney’s Office. So, the secretary I had
wasn’t busy, she didn’t like it, she was bored, and she decided to
retire. And upon her retirement I availed myself of the opportunity of
converting that position into a law clerk position, because Magistrate
Judges can now do that as can District Court Judges. So, from that
point on, which was very early in my career, I have had two law
clerks. One of them, Sarah Podger, has been a professional clerk,
that’s her career, she’s been with me now, I think for eleven years.
While the other is a rotating person, who serves for a year. I prefer to
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have the rotator serve for a year for several reasons. Number one, I
think a year does it, they gain enough experience, and I can’t pay them
very much. And the second thing is, I like the fresh, new blood
coming in every year. So, I’ve had wonderful law clerks. I’ve grown
very close to them. Recently at his portrait hanging ceremony; Judge
Robertson described his law clerks’ children, as his grandclerks. So I
have six grandclerks. I don’t know if it’s unique in the federal
judiciary, but if, you can see behind me, I have performed wedding
ceremonies of many of my clerks. There are only two I didn’t do, and
they are both Catholics, and needed a priest, and I couldn’t pass their
physical. Amy Easton, I married. And Amy is an interesting story. I
was at the U.S. Attorney’s office and it decided to start using college
kids as interns. And I was against it. And I said, “What in the world
are these college kids going to do?” And she was assigned to me and
she showed up in her Michigan sweatshirt. And I showed her how to
use the library and within a week she was producing work better than
most of the lawyers. So I told her, “Amy, if I ever become Judge,
you’ll be my law clerk.” So, we lost contact with each other. And I
tracked her down through the Ohio State Admissions Office where she
was going to school. And I called her, and out of the blue I offered her
the clerkship. So we were reunited. And she was my clerk. Then my
first clerk was Julie Anna Potts. It was funny, she was, she had a thick
Southern Alabama accent, and I had a Brooklyn accent. So for about
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the first month, I think we needed a translator. But fortunately, down
in Alabama, Judge Carroll, John Carroll, Magistrate Judge Carroll, his
secretary was from Brooklyn. So we had a full-way translation
system, if we didn’t understand each other. She kept talking about
somebody named, y’all, and I thought that was like a Swedish cousin.
I didn’t realize it was the plural view, y’all. “All y’all” was my
favorite. And she was wonderful. She since has gone on; she became,
just this past week, she’s now General Counsel to the Senate
Committee on Agriculture, having served as a lobbyist for the Farm
Bureau, General Counsel for the Farm Bureau, which is the largest
lobbying organization on earth. Kevin Muhlendorf, I married him as
well. If you look over there you’ll see in that picture my signing the
ketubah, the part of the Jewish wedding ceremony, in which I sign the
contract between the couples. And that’s Kevin next to me. And
Sarah, I performed her wedding at the St. Regis as well. She married a
gentleman from Great Britain. And so I’ve been very close to my law
clerks. And the fun one was this Katie Anderson. That’s Judge Mary
Ellen Coster Williams, of the Court of Claims, who is my dear friend.
We worked in the civil division together under Judge Lamberth. And
Cos is, I call her (she has to have a nickname with all of those names),
Cos and I flew out to Michigan, and the reason for that is, my law
clerk married her law clerk, and we performed the wedding ceremony
and had a blast. Danced the night away in an old converted barn out in
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Michigan right on the lake. It was very beautiful. So, now they have
kids, and I have pictures of the kids here in chambers, and I think
one’s blowing into town today. That was another interesting wedding
I did. She married a Remesh, a physician from India. And Meredith is
about almost six foot tall, a very beautiful woman. And her Remesh’s
mother went to India to get the saris for the women in the wedding
party, and they had a traditional Indian wedding, and it was just
magnificent, and her hand was all decorated with the henna, and it was
very beautiful. And then we did an American ceremony thereafter.
And then the most recent one was a lot of fun. Michelle Tupper, my
law clerk, married a guy who is a very gifted carpenter and works on
remodels, remodeling, particularly buildings in Washington that have
aged in magnificence. And they both love country music, and he has
played at the Kennedy Center. He used to be with a band. And that
was really a boots wedding down in Kentucky. So we had a lot of
good country music, and had a lot of fun. So, it’s been a really good
kick.
MS. BRACEY:
You seem like you have a lot of women who are law clerks.
JUDGE FACCIOLA:
It’s interesting. If you look back over my career, there are very few
times when you will find that I have men working for me. I had an allfemale staff at the U.S. Attorney’s office for a while and most of my
law clerks have been women. I can’t say I’m even conscious of that,
but they just stand out in terms of their qualifications. I suppose it has
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something to do with the fact that my three sisters were eminently
qualified professionals. So, I’m very comfortable around women who
are in a professional capacity and enjoying themselves.
MS. BRACEY:
JUDGE FACCIOLA:
And what makes a good law clerk?
The ability to say no. The ability to stand at the cliff and say, “No,
Judge.” “See the stop sign? Stop right there, cause you are about to
drive right off of this cliff.” As I tell them from the first day, you are
not here to say yes, you are here to say no. “Judge, this is not what
you should do.” They’re here to cool me off. Make sure I blow off
steam and don’t do anything that I shouldn’t do in anger. And they are
here to perform, you know, the disciplined approach of finding what
the law requires and bringing it to my attention and helping me
articulate it. We write a lot more than most chambers. I noticed this
morning, I think, I was looking up something. I think I have 560
published opinions, which is after twelve years, about 40 a year. So,
that’s remarkably large, I couldn’t have done that without the excellent
work. And we do it a lot of different ways. There may be situations
where they give me a draft, and I’ll mark it up and then we’ll talk it
through. There may be other situations, perhaps more common, where
I’ll write and give it to them and they’ll whack it. But it is an editorial
process. Our law clerks learn, as I learned when I was very young, it’s
important to be a good writer but it’s much more important to be a
good editor. And to know how exactly to say things with power. I
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have a lot of fun with my law clerks. I am of a literary bent of mind,
and classically educated. So, I am always sneaking in literary
references that they are giving me a hard time about But I never took
the job, they didn’t tell me when I took the job that I would have to be
dull and I refuse to have a dull prose style. Nobody is persuaded by
something that’s turgid and can’t be read. And the law clerks help me
immensely there. They also serve as sounding boards in terms of
approaches. They also acquaint me with new things, you know, with
new perspectives. The world keeps changing and the arrival of a new
group, a new person each year, helps me understand how that new
generation is seeing things, particularly in the area of technology. And
how that generation views concepts of privacy, and so forth, is very
important to me.
MS. BRACEY:
And how, what have you seen trend-wise with your clerks?
JUDGE FACCIOLA:
I’ve seen that the number of people applying has gone through the
stratosphere. I think I had 1165 applicants for one job in the last year.
Now, a lot of that is the product of the computerization of the system.
So, in the old days, a law clerk would have to spend 47 cents for 200
envelopes and mail one to every judge in the system. Now he or she
just pushes a key stroke and it goes. But we are overwhelmed with
applicants. So the winnowing process is much more difficult, I think,
although the computerization of it through this OSCAR system is very,
very helpful. The second aspect of it is, I think the law schools are
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doing a better job in having the students write more earlier in their
careers. The one thing that distresses me, however, is I would like to
see Law Review experience be traditional Law Review experience. I
don’t think you should escape from the Law Review experience
without writing something.
MS. BRACEY:
Oh, as opposed to just editing?
JUDGE FACCIOLA:
As opposed to just editing. So, that’s the only thing. But the quality
keeps going up. And it’s interesting they each bring different skills,
they bring different attitudes, different ways of doing things. They are
radically different. Some are aggressive, some are not. Some have
views on a particular matter that are different from others. Kevin was
our closet conservative, he was a, you know, a George Allen
Republican from Virginia. And he was always being teased by the
other law clerks for his ways. One of them brought extraordinary
technical skills to the job and that proved very valuable to me. He had
made his living for a while as a computer programmer and when he
worked with me on the White House backup tapes and his
understanding of the technology was crucial to my understanding of
the technology. So that now has become particularly significant
criteria and I look at that very carefully ‘cause I want people to be
comfortable in the 21st Century world we live and unfortunately that’s
a technical world, or fortunately.
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MS. BRACEY:
Could you just put, so we know what the OSCAR system is?
JUDGE FACCIOLA:
OSCAR, O.S.C.A.R. stands for Online System for Clerkship
Applications something or other. About 5 years ago, you can’t
imagine how badly this had gotten out of hand. Remember we’re the
home of two courts, and two of the most prestigious courts in the
country. So, you can imagine the number of applications we got. We
had to hire contract people to go through the mail. Thirty-five to 40
buckets of mail would arrive the day after Labor Day. And they all
had to go through the machine and be sorted and all of this. And then,
another aspect of this is that there were no restrictions on recruiting in
terms of the year that a person was in law school. So, people were
interviewing 1L’s and there was all this one-upmanship. So, finally
everybody came to their senses. The first aspect was the agreement
that we would only hire, only interview 2Ls for permanent positions,
that we wouldn’t do so before September 8, the day after Labor Day.
And then, that led, under Jim Robertson’s leadership primarily, to the
creation of a computerized system by which law students apply. And
basically, each student in the database has a package: opening letter,
résumé, letters of reference, transcript. And I can look at all of those
without leaving the computer screen. Then I can box them. You
know all the ones I’m particularly interested in. All the ones maybe
worth a second look. And then I can search in a lot of different ways,
e.g., law review experience. In my case, I frequently, and have been
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successful most of the time, look for some experience between college
and law school. And then, some experience after law school. I very
rarely hire right out of law school. I like people with experience in
various areas.
MS. BRACEY:
So, what areas?
JUDGE FACCIOLA:
Usually the law firm or governmental. It works out better, I think,
because a year of experience is good. Coming out of law school to a
clerkship can be, you know, a real cold shower. And law firm
experience or governmental experience, I think, sharpens writing
skills. Also, it puts you in the position where you got to get work out
on a deadline. It creates people I can talk to about you so I can see
how you functioned in game conditions. So, there is a natural trend in
the federal judiciary accelerating year-to-year of insisting upon some
experience after law school. And given the market, you know, you
can insist on anything you want these days, because the market favors
the buyers as opposed to the sellers. Now, it’s interesting in my law
clerks, I’ve corrupted all of them. They’ve all gone on, most of them
have gone on to public service, I’m proud to say. Amy was with a
firm for a while, didn’t like it. She’s at the Department of Justice.
Katie’s at, in the Inspector General of IHS. Kevin is making a heck of
a career for himself at the SEC. So, as I say, I corrupted all of them,
they’re all in public service, with one or two exceptions.
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MS. BRACEY:
Very good. Are there any judges on your court who are particularly
effective at influencing other judges getting them to get things done?
JUDGE FACCIOLA:
Yeah, but not by force of personality. Probably by force of their
opinions and so forth. I think you’d have to say that Hogan is a leader.
You know, if you’re disagreeing with Tom Hogan, you better really
give it a heck of a lot of thought because it’s been very, very carefully
done. And again, they have different perspectives, but I think of the
ones I’ve met, I think Tom really leads the pack; just as recently as
yesterday, I noticed a particularly principled decision. I know now,
after I read his decision, the question became, is whether a contrary
decision would make any sense, and if it doesn’t, then he’s right. In
other words, I don’t have to accept what he says because he’s a
coordinate judge, but nevertheless he has an important leadership role
in a lot of my thinking. And that is true of several of them. I can’t
think of any whom, whose opinions I would disregard, that’s certainly
not true. But, you know since we are coordinate judges, what we try
to do, is try to interpret what the circuit has said. One of the problems
I have now, and I think it’s the most distressing change I’ve seen, is
computerized legal research permits young associates to think that if
they find a district court case in Nebraska it’s the law. So, you have
this unfortunate situation where a phrase is taken from a case and said
to be the law, as opposed to the old idea of pulling down the circuit
authority and seeing where it is before you do anything else. And I
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don’t know if that’s the product of legal research or the product of
computerized legal research, but something has gone wrong there, and
it leads to a mountain of work that is kind of misdirected.
MS. BRACEY:
And is that, is the work that your law clerks then have to find the
circuit, because it exists —
JUDGE FACCIOLA:
Oh no, I have to find it. That’s exactly what I’m doing when you
walked in.
MS. BRACEY:
Okay, because it actually, because sometimes they cite Nebraska
because there’s no circuit law —
JUDGE FACCIOLA:
Or because Nebraska’s cool. It’s got a phrase in it they like. And that
is not really the methodology that they’re required to engage in. And
my law clerks always come back to me and say, “Judge I read this
brief by this party and there are no citations to any district cases or any
circuit cases.” I say, “Well, then we’ve got work to do, don’t we?”
We go in and there it is, there is circuit authority and it’s not been
handled, it’s not been grappled with. There’s just maybe too much
information out there, you see what I mean?
MS. BRACEY:
Right, so you can’t filter.
JUDGE FACCIOLA:
No. In the old days, you just pulled down, you just looked at what this
circuit said. Now, you can do that in the system and I’m surprised not
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more people don’t do it, or at least their work product suggests that
they hadn’t done it.
MS. BRACEY:
Anything else on that? Like what you are seeing in terms of trends
and what you’re seeing from litigants?
JUDGE FACCIOLA:
Yeah, that’s one of the concerns I have. The second concern I have is
there’s still a lot of time being burnt up on stuff that’s really not that
important. In other words, if you’re around the adversary system long
enough you know its values. But you also see, one aspect of it is it
leads to fighting for the sake of fighting. Lawyers actually take
seriously that a judge is going to read an opposition to a motion for an
extension of time. I have news for them. Nobody has time to do that.
So, I see a perceptible trend among judges, losing patience with
adversary system for the sake of the adversary system. And as
recently as yesterday I was invited to the conference in May that’s
being run by the Advisory Committee on the Federal Rules under
Judge Koeltl in New York. And we’re going to be looking at these
surveys that were recently done in terms of the cost of discovery,
electronic discovery, by the FJC, by the Institute for the Study of
American Law, and by American Trial Lawyers Congress. But the
point of all of that is, is trying to look very carefully at cost and benefit
ratios and doing something about that. So that trend is, I think I see
greater emphasis by the judges on the value of cooperation as opposed
to the naked adversary system burning up time and money. So that’s a
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very perceptible and obvious trend. And I’m very excited about being
a part of it, or at least being there kind of at the inception of the
thinking.
MS. BRACEY:
And do you think what’s driving the issues in the adversarial system is
the availability of all this electronic information, or is there something
else . . . . ?
JUDGE FACCIOLA:
Well, yeah. I think what the problem, the first problem I think is that
there’s just so much of it. In other words, if we all managed our
electronic data better than we do, we wouldn’t have a problem.
However, there is a natural temptation now, because storage capacity
is so cheap to save everything. Well, if we save everything the cost of
finding anything is that much more. And I’m a bad offender of it
myself. I realize that if I could clean up that hard drive and get rid of
these cases from five years ago which nobody cares about because
they’ve been resolved on appeal, and if the case is over, it certainly
would be a lot easier to find it. But, you know who has the time to do
that? And I’m not disciplined enough to go back in there. As a result,
finding things is that much harder. It leads to this whole sub-industry
of search of vendors selling search capability and others. So, I don’t
know if it’s, it’s hard to say, was it the chicken or the egg? Whether
we were thinking about these issues and electronic discovery came
along, or electronic discovery coming along and we got thinking about
these issues. But there now has been this perfect storm of all of these
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things coming together. You know, a friend of mine, Pat Oot, was
employed by Verizon and they spent 4 million dollars in discovery in a
particular case. And I had a discussion of this at Georgetown this
summer. Justice Breyer was there. I said, “Can you imagine the good
we could do for the children of the District of Columbia with 4 million
dollars? Where is this money going?” And as a result, Pat was hired
by Verizon with the single responsibility: get those costs down. So
we’re going to see that trend is perceptible and it’s leading to whole
new ways of thinking about it. So this conference in May could be
terribly significant. Then the other development I think is very
interesting and it’s a coincident development is the interpretation by
the District Court’s of the Supreme Court’s decisions in Twombly and
Iqbal and where that will take us as a coincident sort of development.
MS. BRACEY:
And have you seen any, any —
JUDGE FACCIOLA:
The first thing I’ve noticed, and I’ve been, is I’m looking at it, some of
the statistics, I think we’d all agree, that the rate of dismissal is going
up in those judicial districts where there are prisons, which is
understandable.
MS. BRACEY:
The rate of dismissal is going up?
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
Okay.
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JUDGE FACCIOLA:
Because the pro se petition is the plaintiff’s. Iqbal was a qualifiedimmunity case. And I handled a lot of those cases when I was an
Assistant. So I could see that. The general trend, there was a good
article in the Northern Illinois Law Review by a lawyer who studied
the cases post-Twombly in a Title VII area without the benefit of Iqbal.
And he saw a perceptible trend upward in the rate of dismissal and
came up with some proposals of how to meet Twombly’s requirement
in terms of what, a Title VII complaint? And I think we’ll see more of
that, assuming Congress doesn’t push back with legislation, which is,
you know, is pending.
MS. BRACEY:
Right, right.
JUDGE FACCIOLA:
That’s a very, very; I think that’s a very important trend that bears a lot
of watching.
MS. BRACEY:
And would you like to see it go down, I mean, or you want it to be
accurate, and sort of —
JUDGE FACCIOLA:
Yeah, I think there’s a fine line. This professor convinced me, that for
example, in a Title VII action you should at a minimum say, what was
the discriminatory act, and what its consequences were, all right? And
conclusory pleadings are just not going to do it. And I think Rule 8,
that’s what Rule 8 means, a short, plain statement. So, I think that
trend is good, but it may be of academic interest if leave to amend is
always permitted. So, that really was where the rubber is going to
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meet the road. I don’t know, we’ll see. But in the pro se cases it could
have a very dramatic impact.
MS. BRACEY:
And it seems like it already is.
JUDGE FACCIOLA:
It seems like it is, yes. I’ve even heard the verb, oh, I think that should
be “iqballed.”
MS. BRACEY:
Wow, and once it becomes a verb.
JUDGE FACCIOLA:
Once it becomes a verb, it’s like Kleenex, you know, we’ve got a
problem.
MS. BRACEY:
Right, in Xeroxing.
JUDGE FACCIOLA:
We got a thing in Xeroxing, yeah, so. But I think that’s, if you ask me
one of the most, one of the most significant developments that I’ve
seen in the past five years, I’d say it’s impossible to exaggerate the
importance of Twombly and Iqbal. They could have a very dramatic
impact.
MS. BRACEY:
Let’s turn for a moment, to sort of your memorable and difficult cases.
And right now, you’re sort of on the forefront of this e-discovery
thing, if you want to talk a little bit about that.
JUDGE FACCIOLA:
Yeah, interestingly enough they are not the most difficult. I don’t
know why or how this happened. But I’m comfortable there. In 19, I
guess 97, there came before me, the McPeek case. And it was the first
case I ever touched that had anything to do with electronic discovery.
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And I got thinking about it and I said, “Well, this is a situation where
we’re going to have to measure cost against benefit.” And I
remembered the principle of marginal utility from my economics
courses and I said that the value of doing any more discovery than
we’ve already done is at the margin. And the next thing I know I’ve
created a test for e-discovery of marginal utility. I did, really? You
know, it was news to me. But that began my involvement in that. And
my involvement took a lot of different forms. But the two most
significant were my involvements with Georgetown in the CLE
programs devoted to e-discovery at the Law Center and my work with
the Sedona Conference. Georgetown is the more traditional CLE
while Sedona is a conference. It has more of a goal of creating the
best practices that are going to be used. And I’ve been involved in
Sedona, for, I guess, about 10 years now. I serve on the Advisory
Board, the Advisory Board of Judges who try to govern the
conferences, to what are appropriate topics on how things should be
approached. And then I work on various working groups. To get back
to what we were talking about, most specifically on the one I like
working on, is proportionality, cost and benefit analysis, and all of that
in terms of the overall trends. I’ve also done a lot of work at Sedona
in a lot of different areas. In complex litigation, with particularly
attorney-client privilege and Rule 502. So, those two aspects have
predominated. Then throughout the year there are other opportunities
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to speak. And the D.C. Bar, then groups that ask me to speak in front
of them. And I particularly like speaking to records managers, to
operation people in corporations. Because they tell me how it actually
works and what their actual problems are with the technology
constantly jumping ahead. And then I got involved with something
called the RSA. The RSA is named for three Israelis who created a
security company. Security in computers is very much related to
cryptography, because it’s really, when you think about it, the same
principle. It’s a kind of coding. And when I went out there I think I
was like the dodo, I was the first judge anybody had ever seen. And I
thought, well, this isn’t going to work, and because they first began
talking about things that frankly I didn’t understand. And then I was
on a panel and I looked around and realized, God I’m the only guy on
this panel without a PhD from either Cal Poly area, or MIT in
advanced mathematics. This is going to be fun. This is going to be
something. But I began to learn a lot and they began to learn
something from how a judge looks at these issues. So, now I have a
really pronounced interest in information security. The security of
information. How do we know that this thing is produced by the
computer and it is what it purports to be? That’s what RSA does.
That leads me into other issues in terms of protection of that data from
invasion by others and so forth. And to the general questions of
security. And I never stopped learning. Serge Jorgensen was a
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speaker last year and he got talking about encrypted data and the hard
drives and all of this. Serge did a survey for the Transportation Safety
Administration, and I still find this hard to believe, but it is true. Last
year, how many laptops do you think were left at the Atlanta airport
last year?
MS. BRACEY:
Ooh, I’ve read this. It’s a lot though, it’s a lot.
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
It’s like 50,000 or something.
JUDGE FACCIOLA:
It is. Exactly right, it’s 50,000. And so, then as recently as yesterday,
the San Francisco Chronicle had a piece where somebody took the
medical records from Kaiser Permanente home to work on them, and
then her car was burglarized. So these kinds of things, the security
community that I’m learning more about led me to think about
authenticity of documentation as well as some other issues. And the
security officials also get involved in production questions in terms of
electronic discovery, trying to create a matrix of having an electronic
records system that is secure but can yield quickly and efficiently that
which is required whether by discovery or otherwise. So, that has
become really a fascinating part of, you know, what I do, and it’s very
interesting. I haven’t had that many, thank God, that many data breach
cases. Let’s hope I never have them. But I had one involving the
V.A., the computer that was lost.
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MS. BRACEY:
Oh right, right. That was big.
JUDGE FACCIOLA:
That was big. Fortunately there were no damages. They, the V.A., did
a commendable job of cleaning up almost immediately, changing
passwords, setting up a place where people could go. And fortunately
no one was harmed. One guy had to wait one day to get mortgage
clearance cause there was some confusion about his bank records. But
that was cleared up.
MS. BRACEY:
So, tell me a little bit about how the marginal utility, the principle sort
of has . . . . . cases . . .
eJUDGE FACCIOLA:
Yeah, McPeek sues the Attorney General. McPeek is at the Bureau of
Prisons. And he says that things start going downhill for him when he
rejects the homosexual advance of the Director of the Bureau of
Prisons, which is quite startling accusations because the Director of the
Bureau of Prisons is Mike Quinlan. I used to represent Quinlan when I
was at the U.S. Attorney’s office, known him for years, and he was a
pretty upright, and standup guy. Well, in any event, so it was, the
question became that there were some e-mails that transpired back and
forth at a particular point in time, and they couldn’t be found. And the
question was whether you should search the backup tapes to find them.
And I said that the search had to be, whether you do the search, had to
be function of marginal utility. How likely is it that that search will
yield what we’re looking for? So, we did it in two stages. Stage one,
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we did a cursory review to see where the stuff might be. Then we
stopped. And the second McPeek decision deals with the question of,
given what we know, is the additional search worthwhile? And I
concluded that it was not. Because what was on the backup tape was
so distant in time from when these events occurred that it was
inconceivable to me that people were still talking about his departure
nine months after he left. So, that’s how marginal utility works.
Marginal utility is nothing more or less then what Rule 23 says. That
in determining whether how much discovery to permit_______, you
take in these factors and it’s a broad discretionary judgment. Now the
question is how do you do that cost-benefit ratio in terms of evaluation
of the case and this amount of discovery? I said in McPeek, we cannot
have a system where we spend $300,000 for an e-mail. And I still am
of that view. Now the question is, how do we balance those two
factors, how do we find what we’ve got to do? And that’s a legal
question, it’s also a technology question. Because as search
technology becomes more sophisticated, ever more sophisticated, there
is a shot that the cost of search will go down. What’s defeating us is
storage capacity. Because storage capacity keeps increasing
geometrically, there is very little motivation to have a true records
management policy and throw things out you don’t need anymore.
And that’s what we’re seeing.
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MS. BRACEY:
Well, other than discovery, other than it might be found, you know,
sort of, the trend to have the automatic delete from your inbox, and
that sort of thing.
JUDGE FACCIOLA:
Yeah. And so, that over the period of time in Sedona, Sedona working
groups worked on various things and then a bunch of us got thinking
about the possibility of seeing if we could come up with a new
paradigm. And to that end, I guess it was last year, we promulgated
what we call the Sedona Proclamation Cooperation in which we urge a
cooperative attitude towards this. And we’ve gotten so far 100 judicial
endorsements of it. So there’s a working group applying the
Cooperation Proclamation, for example, to in-house counsel, from an
in-house counsel perspective, then from litigation counsel, from an IT
department, from a judicial perspective. And so what we’re trying to
do is build up a series of two kits that people can use in an effort to
cooperate without jeopardizing their client’s interest. Now whether
that model will become the model remains to be seen.
MS. BRACEY:
And who, what, who makes up the Sedona Conference, and how did
you —
JUDGE FACCIOLA:
The Sedona Conference is the brain child of a man named Richard
Brayman. Richard was once a hard-charging plaintiffs’ antitrust
lawyer, who always wanted to put together a think group that would
step back a bit and think about these issues in several areas. And they
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were electronic discovery, antitrust complex litigation, patent, in those
four areas. The idea behind the Sedona Conference is that unlike the
traditional CLE program you see, membership is restricted to a group
of people who are committed to it. And those people are really a
working group. They are working towards the ultimate creation of
best practices and guidelines in these various areas. So, then they are
published and then refined as time goes by in each of those areas.
MS. BRACEY:
And how did you join?
JUDGE FACCIOLA:
Ken Withers (was at the A.O.) and I had known each other. And after
the McPeek case there was some interest in some of my thinking on
this issue and I was invited. And I’ve been involved ever since.
MS. BRACEY:
And you’ve also gotten some press for the Center for Responsibility
and Ethics in Washington?
JUDGE FACCIOLA:
Yes, I did. That was the White House backup tapes. Yeah.
MS. BRACEY:
In U.S. v. O’Keefe?
JUDGE FACCIOLA:
Yeah. O’Keefe dealt with two men, one of whom is accused of bribing
the other to get visas out of the Department of State in Canada, and it
involved searching the Department of State records. And O’Keefe and
another case that I worked on, I got thinking a lot about search
terminology and expressed my concern in that case, that that might
involve a more sophisticated expertise than most lawyers had. And
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that led me to do some more thinking about technical competence,
which has become, you know, one of the things I’m really interested
in. I guess it was two years ago, I spoke at the New York Legal Tech
about that, and I’m surprised they didn’t ride me out on a rail, but I
expressed my concern that a lot of lawyers who appeared before me
didn’t have any understanding of any this, and it was getting scary.
MS. BRACEY:
Sort of like, what they were asking for, search the backup tapes —
JUDGE FACCIOLA:
Or, yeah, they had no idea. Let’s search this. Or, you know, in
criminal cases, we had a child pornography case in which it was
important to understand how the police were capturing the information
in the chat room. And the lawyer got up, who represented the
defendant, he said, “You know, Your Honor, I just don’t understand
this computer stuff.” I said, “Come here.” I said, “You can’t say that.
Now you’re confessing your ineffectiveness. This is absurd.” And
I’ve been, so at the New York Legal Tech I try to bring all of these
into my thinking to bear on this, and I pointed out that I live with two
people, my wife and my son, whose competence to do what they do, is
tested on a yearly basis. This morning, at 6:45, as I was going out the
door, my son was getting, or grabbing a glass of orange juice, and I
said, “How did you do?” He said, “Fine.” He had his certification test
last night, he’s 33 years old. And he’s certified in three areas. He’s
certified as a network administrator in computers, he’s certified as a
coast guard captain, and he’s certified as a scuba diving instructor,
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okay. My wife is going to class to get her certification. Then I turned
to the audience, and I said, “My capability to do my job was last tested
40 years ago.” Oooh. And I said, and when I say, when I propose that
the bar give serious thought to certification in this area, in meeting
certain conditions in doing what other industries do, and there is a lot
of back talk about that. I will say, “Okay, somebody name the last
lawyer in America who got disbarred from being incompetent. If
doctors were trained and certified as poorly as lawyers, we’d all be
dead.” So, this is very controversial. And I can see when it comes to
certification there are concerns. There’s a licensing concern.
Licensees have a tendency to be monopolistic. There are politics
involved. For example, in Michigan the private investigation industry
got concerned that forensic scientists would start taking their business
so they prevailed among the state legislature to pass a law that requires
forensic scientists get licenses as private investigators. So, that
licensing can be out-and-out monopolistic and I concede all of that.
And I’m one of the few judges who believes in this. But I’ll continue
to believe in it. I believe what I’ve learned from this is that these are
highly complicated areas and it is well worth it for us to take a hard
look at the people who do it. You could say, I suppose, well the
market will work, right? The market will, as this becomes more and
more prevalent as we go to medical records. I mean, for crying out
loud, Jiffy Lube has a computer. The market will insist that lawyers
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have this capability and this understanding. Well, I don’t know, but
while we wait for the market we ought to have some other way to do
this. In the computer industry itself, there is a constant process of
certification. And the people in it take great pride in the certifications
they get and they work hard to get them. And they don’t quite
understand why the lawyers with whom they work don’t have equal
obligations. And I don’t either.
MS. BRACEY:
And no one really wants to fix that.
JUDGE FACCIOLA:
Well, as I say, I think, I think it is fair to say that the market will do it.
I mean, I’m already seeing how lawyers who build up a competence in
this area, the world beats a path to the door, and they’re making a lot
of money. One supposes that the race will be to the swift. And the
lawyers who don’t want to get involved in this will find something else
to do with their time. But while we wait for all of that to occur there
are other problems that I think that have to be addressed.
MS. BRACEY:
And there will always be people who still get the business cause
they’re cheaper even if they don’t understand.
JUDGE FACCIOLA:
Yeah, but that would be a terrible cost for those people to pay ‘cause
they just may be represented by people literally that don’t know what
they’re doing. And the impact of this is not just isolated to the market
place. It has a significant impact on the judicial system, because what
we found and I think everybody agrees, and why Sedona came out the
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way it did on the Cooperation Proclamation is that cooperation is a
function of competence. The more competent the lawyer, the less
intimidated, and the more willing to talk to the other side. Let’s try
these search terms; my guy says this, what’s your guy say? What are
we going to do about this, what are we going to do about that? When
you have asymmetrical parties before you, one with a lot of
knowledge, and one with none, that’s when the judicial role increases
markedly.
MS. BRACEY:
And so, do you find yourself doing a lot of educating?
JUDGE FACCIOLA:
Oh yeah. One of the reasons I do as much lecturing and speaking and
writing as I do is because I want to be a part of that process. I think
it’s a crucial process. And when my career ends, I don’t know if I’ll
be remembered more for being the judge than being the lecturer. But I
don’t care, because I see them as intimately connected.
MS. BRACEY:
And how, and do you also have to do education with the litigants who
are in front of you, in the courts?
JUDGE FACCIOLA:
Yeah, but they welcome that. You know, as recently as this morning,
there are, the parties were having difficulty there, and I said I had
some ideas I want to share with you about how we might be able to do
that. And one of the elements of the Cooperation Proclamation is it
takes as a given, judicial intervention at the earliest possible time to
prevent problems before they occur. And I take that very seriously.
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Please, I don’t need 50-page motions, get in here. What’s the
problem? Well Judge, he says that he can’t get this e-mail system,
because you know its legacy data. I don’t think it is. And I say, what
does your expert say, what does your expert say? Let’s get them in
here, maybe there’s a way to do this. All of this is quite revolutionary
in the way judges deal with things.
MS. BRACEY:
As opposed to waiting?
JUDGE FACCIOLA:
As opposed to waiting, and as opposed to waiting for the traditional
adversarial briefing, and that, I just don’t think that’s a luxury we have
anymore. Now maybe, you know, an economy in a downturn may
teach everybody that lesson anyway. The lawyers are telling me that
the clients are not going to pay for this kind of discovery. So, the
problem may quickly take care of itself, I don’t know.
MS. BRACEY:
Can you talk about the White House backup tapes?
JUDGE FACCIOLA:
Yeah, it was a terribly complicated matter. And as I say, I was blessed
by the fact that my law clerk at the time had made a living as a
computer programmer. And over a period of time I really had to learn
very quickly all the technical requirements of two very complicated
systems. And then I made the rulings I did. I don’t remember exactly
if they were appealed. But I thought the most interesting aspect of the
case is when I got caught between the transition between the two
administrations. And wondered what was going to happen. And what
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the new administration would do. And in my opinion I describe
myself as being between a rock and a hard place, with 48 hours before
the new administration arrived. And as I, what I did was I put all of
the information in the custody of the archivist. And that seemed to
resolve it. And the case has now been resolved and stipulated. So, I
was very pleased by all of that. And it was complicated, it was
difficult. Because again, you had a relatively diverse system in a way
of keeping things without uniformity. And a system that changed as
time went by as all systems do. So, in a sense it was aberrational
because it was the White House but it, in a sense it was very normal as
a reflection of American business constantly being forced to make
technological change when the consequence of that technological
change maybe to obliterate it or destroy the data that’s there, even
though everybody is working in good faith. So, in that sense it was
unusual but it was very normal and it was a good education for me.
MS. BRACEY:
And what did the parties want in terms of just, so when everyone
listens to your history, they know sort of how the —
JUDGE FACCIOLA:
Well, yeah. The plaintiffs contended that due to deficiencies in, due to
the changes that the Bush administration made in the way records were
kept at the, in the White House Office of Administration, that e-mails,
a large number of e-mails had disappeared, all right? So, the whole
theory of the case was, where are they, and can we find them? And
what can we do to restore back online from legacy sources, from other
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data, where this stuff might be. So, the heart and soul of my job was
try to figure out all of the available depositories of this information and
what we could do to preserve them, so that they could ultimately be
searched, and we could ultimately determine where this material was.
MS. BRACEY:
And when you said during the change in administration, what did you
do, you had everything sent to the Archives?
JUDGE FACCIOLA:
Well, what I did was, I made the archivist who was already a party to
the laws of the custodian of all of this information so that it would not
go into a lacuna. And that must have worked because I saw last week
they stipulated to its dismissal. But, in that, in the opinion, I think it
was interesting in that the opinion is the opinion written by a history
major. I kept talking about how important, that this is the nation’s
history, you know, and I think in my final opinion, I quoted Napoleon.
He said, he didn’t really much care who wrote France’s laws if he
could write its history. And that’s how crucial all of this stuff was.
And I’m sure the White House thought I was a pain in the neck. But,
in the long run, we did preserve for history an enormous amount of
important information. And that leads, of course, to how we’re going
to grapple with that problem in the future. You know, they say that
this administration is particularly tech savvy and they must be, every
time I see them, somebody is on a Blackberry. So, you know, if the
president serves for four years, he may, his administration may
produce a billion e-mails. When they show Iraq on the TV, they go
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into the tent where the commanders are; do you notice they’re all on
computers? What legitimate military historian would write a history
of our engagement in Iraq without reviewing the e-mails of the
commanders and everything else? It’s inconceivable. It’s the very
stuff of history.
MS. BRACEY:
It’s also so much of it is in pictures, and the e-mail, and so like many
things were discovered because pictures were e-mailed to family and
friends, and Facebook, and —
JUDGE FACCIOLA:
Of course, visuals. Of course, yeah. So, it was, it was very interesting
and I liked it because it was pressurized; it’s almost more fun to be
under tremendous pressure to do something and get it done than it is to
have a more leisurely pace.
MS. BRACEY:
And given that your background with the technology and you had the
law clerk’s background with the technology, did you feel like you
were sort of ahead of where the litigants were, or were they —
JUDGE FACCIOLA:
I was where they were.
MS. BRACEY:
They were where, okay.
JUDGE FACCIOLA:
Yeah, I think we were all fortunately on the same page. It’s a rare case
when I’m ahead of them. I’m lucky to be on the same page. I’m a
little more likely to deal directly with the experts. In the first couple of
years, I had promulgated what I called, “Facciola’s Law,” which was:
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Don’t ever listen to a lawyer when he uses the word computer in a
sentence. Because like many judges I had lawyers get up and say,
“Oh, Judge we can do that.” And of course they couldn’t. Or, “Judge
we can’t do that.” And they could. So, I, I was always, I would say,
“Okay, is that your expert, Mr. Jones? Mr. Jones get up here, tell me
about this.” So, that was a way of jumping over that. Now as lawyers
become more sophisticated, I don’t have to do that. But, as I say,
we’re back to competence again. We never can run away from that.
MS. BRACEY:
Okay.
JUDGE FACCIOLA:
And we don’t test for that, you know? We don’t. I don’t know. It’s
interesting, we have to be the only profession on earth that goes
through education and never takes a test.
MS. BRACEY:
Right, right.
JUDGE FACCIOLA:
You know, so. You know, you go to a CLE program, because they’re
mandatory and there are three people paying attention, three people
doing the crossword puzzle, and you know, and that’s why
Georgetown and Sedona are alternatives to that, you know.
Georgetown emphasizes the academy nature of the place. Sedona,
you’re not here to sit on your butt and take notes, you’re here to work,
this is a working group, and we want to hear what you have to say.
That’s why I think, together they’ve had a real revolution in the way
legal education is done.
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MS. BRACEY:
Have you, do you want to talk a little about your most difficult cases?
You said that the electronic discovery ones are not the most difficult.
JUDGE FACCIOLA:
Yeah, well, difficult in the sense that one has to spend some, all right, I
mean, you know, if it’s attorney-client privilege, I know what
attorney-client privilege is. But, I don’t know until I’ve learned it,
how the technology of how the White House keeps its e-mails, so
that’s the difference. You know, it’s funny, when I look back over it,
the most difficult cases I’ve had, the most complex cases I’ve had,
having involved large accumulations of data, and getting my hands on
them. I think uniquely, Magistrate Judges find themselves at the
bottom of the food chain, in the sense of, you know, we’ve got five
thousand documents here, somebody’s going to have to look at them,
and it’s going to be you. So, those have been most complicated
because they have been involved in the necessity of managing an
immense amount of data which then serves as the premise of the legal
conclusions that have to be reached. And that requires the skill of
organization. Where is this stuff? And so forth and so on. Going
through it word by word. Now, the question is whether or not that
luxury will continue to exist in a computerized future. You know, it
was relatively easy when I first became a judge to say, “Okay, you say
its privileged, you say it isn’t, let me see it.” Now that there are 7,000
documents, yeah, how are we going to do that? So the complication
has arisen in my case, not so much from the legal issues, as the
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conquering of the data sets, will I understand what factually this is all
about? Certainly in terms of difficulties, I had a 21-day trial with
issues popping up. And I thought that was very challenging and
demanding.
MS. BRACEY:
What kind of case was that?
JUDGE FACCIOLA:
It was a breach of contract case, basically. The interesting thing about
what judges are finding, is the day never ends, because of e-mail. In
other words, you’re trying a case and you finish at 5:00 and you came
here at 7:30 in the morning and there are five e-mails with lawyers
trying to raise issues. Your Honor, we want to see you this morning,
and so forth and so on. So, trials are very demanding because you find
you have to work, literally it’s a 12- or16-hour day, and all weekend,
because then you got to do your instructions and rule. I have a
tendency to memorialize a lot of my trial rulings in writing. So, I write
a lot of opinions during a trial, and I find that it’s very demanding. In
terms of the most challenging, two of my big electronic discovery
cases have been particularly challenging because the issues kept
coming on us, and we had some really grave difficulties with
information that was on servers that no longer existed, and so forth.
And they prove it very challenging. Challenging because it was and is
so difficult to draw the line between how much more can we do, and
how much money is that going to cost, and is it worth it? That’s very,
very difficult.
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MS. BRACEY:
And do you have to deal with this, sort of the one-email syndrome?
Where can we find this one e-mail . . . . ?
JUDGE FACCIOLA:
Yeah, well I think the better. The smoking-gun syndrome. You know,
it’s like the old joke about the, you know, the kid. There’s the story is
told the family has an optimist and a pessimist kid and they take the
pessimist kid and they put him in a room full of toys and they come
back in half an hour and he’ s broken all of them, and he’s sitting there
crying. And they go in the room with the optimist and they filled it
with horse manure and he’s in there with a shovel saying, “Santa Claus
left me a pony and I know it’s in here somewhere.” All right, so the
problem is lawyers are trained to find everything that is important and
everything that is relevant. And the problem with doing that is, it may
simply be impossible to do because the data set is so big. One of the
great frustrations is, you can really kill yourselves and get all of this
stuff and find out that it’s monumentally insignificant. And that’s
another gigantic problem. It’s hard for me to say, what were the most
difficult ones because difficult would suggest, I think in all, the legal
issues have been interesting. That fact that I’m going to write is a
clear indication that it’s not settled and I’ve got some work to do. But
I don’t remember any one where I felt, you know, I’ll never get out of
here. Some are longer than others. I had a very challenging situation
involving a lawyer, gosh it was difficult. He, poor guy, his life
collapsed around him, and during the middle of the case he got
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indicted and he was representing some very poor people in Texas and
involved in that was just an absolute nightmare. It was very, very
complicated, and very, very difficult. And because of that, it just made
it hopelessly complicated. But I can’t think of any of them where I
said, where I ever said, this is impossible. I always kind of think,
there’s a way out. And there usually is.
MS. BRACEY:
And that means in sort of a settlement kind of case? Or in a —
JUDGE FACCIOLA:
No, in terms of intellectually. You know, I’ll get through this. And
some are difficult simply because they take so long; been around for so
long, require work for so long. There is an exhaustion level that sets
in. And that’s something a judge has to fight. The solution there is to
go for a walk, a good long walk. Don’t let it get you down. This too
shall pass. That’s difficult. Because you so desperately want it to get
done, but it may be a very good idea to put it aside over the weekend,
not come in and hit it fresh on Monday morning. Then you say, “Oh
yeah, that’s what I meant, sure, yeah, yeah, I see.” That’s a fine line a
judge always draws.
MS. BRACEY:
And do you have any in particularly sort of memorable cases?
JUDGE FACCIOLA:
Yeah, gosh. Well, the White House backup tapes was very exciting,
the arrival of the new president and all of that. I can’t think one that I
didn’t enjoy. I mean, I really had a lot of fun. And in each one of
them, there was something that really engaged my intellectual interest.
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So, I can’t think of any that sort of stand out and say, “Oh my God,
why did I get this one?” Obviously, patent cases are tougher, they’re
arcane and you have a lot to learn very quickly, but you got to do it.
And we’re generalists. That’s the great thing about the job. I have
never heard a good argument for a specialized judiciary. I think that’s,
you know, how judges have handled this kind of thing, in a special
court for this, and a special court for that. I suppose so, but if you do
just one thing all of your life, you never get the cross-fertilization of
learning from other things.
MS. BRACEY:
This could apply to —
JUDGE FACCIOLA:
Well think about it. For example, it was only thanks to the problems
that arose from electronic discovery that caused anybody, particularly
Judge Grimm, to look at attorney-client waiver, which gave, which
was the genesis of Rule 502. So, if we had Judges who did only one
thing, that process would never occur, that kind of cross-fertilization.
And you see that every day sitting there. Wait a minute, you know,
this relates to this. That’s important. And I’m not so sure if you have
this homing in on one thing you get that.
MS. BRACEY:
Can we talk a little bit about – you said you also had an interest in the
attorney-client privilege; you just touched upon that with the ediscovery.
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JUDGE FACCIOLA:
Well, yeah. What happened was the lawyers were saying to us, in the
early days of e-discovery, we’re getting killed here. Because we’re
going to have to go through each piece of paper, or each e-mail to see
if there’s anything privileged and this is costing us a fortune. And
Judge Grimm leaped on that in a case called Hopson. And he said,
Well, wait a minute, a compelled disclosure is not a waiver. If the
parties make an agreement then merely seeing something that would
be privileged is not in itself a waiver. Then that may be, and I blessed
that as a judge that would bind them. But then the question is how do
we bind the whole world? But Paul’s opinion led to consideration of it
and it became Rule 502 which now defines the circumstances under
which there is a waiver and says that it’s limited and limits it. And
that was a direct product of that thinking. So, there was a situation
where an issue that arose in electronic discovery cross-fertilized the
evidence rules. In other words, what I’m saying – and I’ve got an
article about this coming out pretty soon – in a sense, is that we’re
kind of blowing up the law school curriculum in the sense of its
segregation. You know you study conflicts here, and then you study
jurisdiction here, the problem is all of this stuff cuts across that you
maybe going to have to revise that curriculum. You know, someone
says, well, why don’t you teach a two-credit course in electronic
discovery? And the answer is: I don’t want to teach a two-credit
course in electronic discovery because that suggests it’s some sort of
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arcane thing like a two-credit course in international arbitration. No,
no, no. That lets you off the hook. The real question is how are you
going to modify your course in civil procedure to live in a world where
all discovery is going to be electronic? Or, you know, how are you
going to look at evidentiary issues in this world where fundamental
information is produced electronically? You see what I’m saying?
MS. BRACEY:
Right.
JUDGE FACCIOLA:
So that, we keep blowing up the curriculum. And, it’s a very fertile
time and we’re going to have to put it back together again.
MS. BRACEY:
And make it —
JUDGE FACCIOLA:
Well, yeah and make it principled.
MS. BRACEY:
Make it useful.
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
Do you think, and this sort of opens up a different topic of, do you
think there are other ways it should be changed, given what you have
seen?
JUDGE FACCIOLA:
Yeah, I, in my life, I think it probably was either the first or second
class at Georgetown that actually had electives. For many years
lawyers were told what to take. And they were told what to take
because they had to meet certain requirements to take the bar, or ABA
requirements for certification. That all exploded and the traditional
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mandatory curriculum went out the window. And was replaced by a
pure elective system. I mean, I assume people keep taking the same
things. But my concern there is I don’t think you should become a
Johnny One Note in your first year of law school. I think the breadth
of your education is important. I remember a young woman, really
brilliant young woman, and she decided at the end of college that the
only thing she was interested in was international human rights. And
had no interest in taking corporations, or taxation, or anything else.
And I told her dad, who is a physician, that your daughter has seen a
toenail and she decided she wants to be a podiatrist. And she ought to
allow herself to see these things; how this all somehow comes
together. And I can’t tell you how many people at Georgetown when I
started who thought they were going to be patent lawyers and were not
patent lawyers, or whatever. So, I think there is a genuine interest, or
should be a genuine interest in the law schools in giving people the
breadth of experience, and resisting any temptation on the student’s
part to become a Johnny One Note. And if that means you are
required to take certain courses, so be it. I don’t know.
MS. BRACEY:
How do you balance that with the people who say, but I need a job.
And it’s nice if I’m more marketable if I’m a, you know, a patent
lawyer.
JUDGE FACCIOLA:
Yeah, I guess so. Oh yeah, I’m not saying that. I think that it’s
perfectly legitimate to specialize at some point. But not at the cost of
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not doing anything else. I mean, when I taught trial advocacy,
students said “I’d like to take trial advocacy” and they hadn’t yet taken
evidence or civil procedure. I said, “What am I going to teach you?” I
mean, you know, look at square one. So, I don’t know how law
schools resolve that. But in terms of electronic discovery, certainly
one could make the argument that the curriculum could be revised in a
lot of different ways. And I use the word curriculum broadly to
include post-graduate and CLE programs. For example, we might just
want to take a topic like creation of information, and look at it from a
lot of different perspectives. We’d look at it from a constitutional
perspective. We’d look at it from the perspective of intellectual
property and copyright. We’d look at it from the perspective of
defamation. We’d look at it from the perspectives of privacy
protection. That’s the kind of thing I’m talking about.
MS. BRACEY:
And you put some e-discovery in there too.
JUDGE FACCIOLA:
Of course. Yeah, you see what I’m saying, yeah.
MS. BRACEY:
Right. Who is going to come look at it? And your work with Sedona
and the attorney-client privilege is sort of —
JUDGE FACCIOLA:
Well, yeah, we’ve looked particularly there. The piece I wrote I think
was called, Sailing on Rough Seas, or something. It was just before
502 came out, and I talked about the problem of the expenditure funds
in doing that. And then when 502 came out we had a special session
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in complex litigation on 502 and it’s so intimately related to electronic
discovery, that continues; I don’t know if they’re going to address it
this year, but there’s still a lot of work on that as well.
MS. BRACEY:
Do you ever have any, or can you speak about sort of instances of
personal conflict between, you know, the rule of law and your personal
philosophy?
JUDGE FACCIOLA:
Yeah, I think so. My first problem is, I’m not as convinced as I was
many years ago that the adversary system is the future. I think there
are a lot of problems. For example, ethically lawyers view the
adversary system as an absolute, and therefore has absolute
requirements upon them. I simply think it is one way of resolving
disputes. It may be no better or no worse than other ways, but there’s
nothing sacred about it. And I think there is a tension in, always in my
mind between a lawyer’s zealous advocacy and my perception that this
is a fight over nothing. And this client should not be paying for this.
This is just not right. I find that to be a deepening concern on my part
where there is a conflict. In terms of other aspects of that, I mean, I
have never found any conflict between what I personally feel and in
my criminal obligations. Blessedly, I don’t have any kind of final
responsibility in capital punishment cases, which would be, as a matter
of my faith, very difficult for me to handle. But at the same token, I
do find that my, in sentencing that my personal views do enter in. I am
becoming more convinced that the lock ‘em up mentality isn’t going to
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work anymore. We’ve got a small window of opportunity to where
people get out of jail to begin the process of the transformation. And I
love being involved in that process. And I’m sure the U.S. Attorney’s
office would describe it as being too patient. But my own personal
views intrude there to require that patience, particularly when the
violation is not outer-directed but inner-directed. In a recent opinion, I
said of one of my defendants, when Mr. Jones looks in the mirror he
sees his own worst enemy. Every time I try to get him a drug
program, he lasts 30 days, and then flunks out of it. He’s got mental
problems. I put him in therapy and he flunks out. You can see why
the U.S. Attorney says, “Come on for crying out loud, throw the guy in
jail.” Well, as long as he’s not hurting anybody, I’m going to go that
extra mile. So that’s a point where I don’t see there’s a conflict but
there is, there’s a tension between lock ‘em up, lock ‘em up, and what
I personally believe.
MS. BRACEY:
And you make the recommendations on sentencing to —
JUDGE FACCIOLA:
I make the, when the guy has violated supervised release. I’ll make
those recommendations.
MS. BRACEY:
And then mostly followed?
JUDGE FACCIOLA:
Very rarely is there any different view.
MS. BRACEY:
So you are, sort of the, you mentioned you weren’t sort of the final
decision maker in death penalty cases, but —
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JUDGE FACCIOLA:
Yeah, thank God.
MS. BRACEY:
Just because there aren’t that many? Or is it —
JUDGE FACCIOLA:
It just works out that way. I don’t try the case. And I don’t sentence
the defendant. Somebody else does.
MS. BRACEY:
So let’s move a little bit into the jury system.
JUDGE FACCIOLA:
Yeah, God bless them. I’m a great believer in the jury system and I
have said on more than one occasion to anybody who will hear me, I
would not live in a country without the jury system. It’s as simple as
that. You know, if history teaches anything, it is that governments are
always looking for more power. And the resistance to that assertion of
power has to come from the people themselves and it does in jury
trials. And I have loved juries; I get along with them famously. And I
say it, you know, people look at me like I’m crazy, and I say it again, I
will not live in a country without a jury system.
MS. BRACEY:
JUDGE FACCIOLA:
And how many jury trials do you see a year?
Unfortunately, not as many as I would like. Maybe one or two.
Which is a general trend, you know. We’re seeing an America, we try
very few cases and that’s just the way the dynamics of that have been
studied by a lot of different people. But the net effect of it is there’s
just not much, there’s just not many cases to try.
MS. BRACEY:
And what do you do, criminal jury trials?
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JUDGE FACCIOLA:
No.
MS. BRACEY:
Okay. You do civil jury trials.
JUDGE FACCIOLA:
I can pick a jury to try a criminal case, but I can’t try it.
MS. BRACEY:
And what is it about jurors that you like?
JUDGE FACCIOLA:
Their common sense. Their extraordinary dedication and willingness
to put down what they’re doing and get involved in the process. The
fact that they quickly can be comfortable, get comfortable with people
they’ve never seen before and become close to them. The fact that
they, they truly try to do their jobs. I mean, people who bitch about
the jury system ought to remember that in the Kevin Gray case there
were 180 counts in the indictment and the indictment was God knows
how many 100 pages long, the jury found 3 typographical errors.
Showing how careful they were. How demanding. So, as I say, is
there a better way to do it? Yeah, show me. I’ll be glad to listen. But
I can’t think of one. You know, the British whom I admire deeply,
have eliminated jury trials in civil cases. Yeah, so be it. But I’m not
one of them.
MS. BRACEY:
Do you sort of have any thoughts on the state of the judiciary now in
terms of a lot of the vacancies and getting things done?
JUDGE FACCIOLA:
Yeah, we desperately need some help. You know, I just don’t know
where this is going. I mean, we’ve got four vacancies now and it’s
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starting to hurt. It’s pretty obvious. That’s true generally all over the
country. Yeah, we’ve got to get cracking. I just don’t know what the
answer is, but you know. And now there are rumors flying around
town that Stevens is going to retire. Well, if Stevens retires, the
Judiciary Committee will focus on his successor to the exclusion of
everything else.
MS. BRACEY:
Right. It happened with Sotomayor.
MS. BRACEY:
Yeah, it happened with Sotomayor. So, that could mean that our
vacancies, even if Congresswoman Norton gets them out, let’s say by
the end of January, we still may be looking at early fall at the earliest.
And it takes months and months and months to do this. I was always
stunned that how long it took the FBI to vet me after I was appointed.
I was Assistant United States Attorney for 15 years.
MS. BRACEY:
Right, you’ve been vet.
JUDGE FACCIOLA:
Yeah, I mean, yeah, but I am concerned about it. And as bad as it is
here, in the border states, it’s horrible. Magistrate Judges are just
overwhelmed in those states.
MS. BRACEY:
And how does it effect, does it mean that things get done more slowly,
does it mean —
JUDGE FACCIOLA:
And this court is particularly burdened with the Guantanamo cases
which thankfully, we don’t, the Magistrate Judges don’t touch. But
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it’s really a perfect storm with everything coming together. The other
thing rescuing us is that the U.S. Attorney doesn’t seem to be bringing
as many criminal cases to us as they used to.
MS. BRACEY:
JUDGE FACCIOLA:
So at least there’s some relief.
There’s some relief. Although the cases they are bringing are the big
monster, 11-week conspiracy trials for, you know, Columbian drug
pushers.
MS. BRACEY:
None too complicated, I mean very complicated.
JUDGE FACCIOLA:
Very complicated. And large number of defendants, and security
concerns, and wiretapping concerns, and all of this stuff, so it’s tough.
MS. BRACEY:
And when they bring a case, they bring a case.
JUDGE FACCIOLA:
That’s it.
MS. BRACEY:
The Feds, yeah. Have you seen any, I mean, when you came to the
Court, were there that many vacancies, or were, there wasn’t more?
JUDGE FACCIOLA:
Yeah.
MS. BRACEY:
Okay.
JUDGE FACCIOLA:
Yeah, well look what’s happening now is, and it’s happening
universally all over the country, the baby boomers, the Clinton
appointees, are now hitting 65. Just a process of time. So they’re
ready to go. And their vacancies have to be filled.
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MS. BRACEY:
Do you think that judges have a broader sort of societal role, or —
JUDGE FACCIOLA:
Yeah, I think so. I think, one of the, I learned, I think it was Judge
Wald. I didn’t hear it from her directly, but from another source, she
always warned about the dangers of isolation. You know sitting by a
word processor thinking you run the world. And I’ve done everything
in my power not to get isolated. Which explains why I keep getting, I
try getting involved in the community, through Catholic Charities, and
in bar activities, CLE programs and all of that. They are crucial to me
to live the life I want to live, and not in isolation.
MS. BRACEY:
And do you have to go places, where people don’t know you’re a
judge? Like is it helpful to go to sort of be —
JUDGE FACCIOLA:
It follows me around, you know. No. Most people ask you what you
do for a living, so it’s kind of hard to avoid —
MS. BRACEY:
Right.
JUDGE FACCIOLA:
One of my Catholic Charities work, the kids all call me judge, they get
a kick out of it.
MS. BRACEY:
But they, I guess they don’t sort of see that they’re going to practice
before you, you know what I mean? Like if you’re in CLEs there may
be people who feel like they’ll be before you someday, or they —
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JUDGE FACCIOLA:
Yeah, most of them are. The ones when I do the D.C. Bar. It’s a room
full of friends, you know, hey, you know, give me a hard time. But it
doesn’t really seem to be a problem.
MS. BRACEY:
And it’s not difficult to maintain your friendships?
JUDGE FACCIOLA:
Oh, no. I’ve done everything in my power to make sure I do. The
Sedona Group, for example, we call ourselves, Sedona in Exile,
because it’s in Arizona. We have lunch once a month, just to stay in
touch, how you doing? And last month, Judges Robertson and KollarKotelly joined us. So that’s a good way of putting people together.
And I’m a great believer in the Inns of Court. I’m a great believer in
all of that. I think judges who get isolated are just crazy, you know. It
just isn’t, it’s not what we’re doing, we’ve got to be reflective of the
community in which we serve.
MS. BRACEY:
And do you think that requires effort? Because it seems like it would
be an isolating problem.
JUDGE FACCIOLA:
Oh yeah, sure. Yeah, it is. And then it brings all new demands upon
you, because you’re a member of things, but that just comes with the
territory.
MS. BRACEY:
And how do you think sort of society views judges – separate from
how you want to be viewed, how do you think —
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JUDGE FACCIOLA:
I think there’s a fundamental misunderstanding of what we do. And
there’s a fundamental, unfortunately a misunderstanding of the
operative documents under which we operate. I was looking at the,
there’s one effort to do that, Justice O’Connor and Justice Souter have
done a series of programs for high school kids about what the courts
are like. There’s a good program that I work on, the Marshall-Brennan
Constitutional Literacy course at A.U., introducing it to young people.
But I think there is a fundamental misunderstanding of what we do,
what powers we have, and that is troubling to me. Maybe we’re our
own worst enemies. One of the reasons I write so much is because I
want, the people who pay me, the taxpayers should know what I’m
doing and why I‘m doing it. And I think most judges feel that way.
But they get a little distressed that there’s no understanding. I always
remember a woman who went to the oral argument in the Nixon
subpoenas case and she was sitting there, and she said, she came out
and I asked her what she thought, and she said, “Well I was amazed.”
She said, “I understood every word. I thought they would be talking in
Latin.” Well, we don’t talk in Latin. We talk in English, and we talk
about things that everybody should understand and in a sense lawyers
like to think this is very arcane thing we do and you’ve got to pay us a
lot of money. Well, yeah, that may be true in one sense but it’s not
true in the sense of understanding what judges do. And I think that
there is concern on my part, that there’s a fundamental
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misunderstanding of how our powers relate to legislative power, how
we are supposed to be limited, how we are supposed to be deferential.
Here, The People Rule is one of my favorite books and understanding
what judicial review is and so forth. There are also is I think in the
criminal law a failure to understand that if man’s rights have been
violated, his rights have been violated and there has to be some
consequence of that, even if that consequence is letting him go. And I
think there is a perception encouraged by some people in our society
that, for example, juries go crazy and they give away mountains of
money. I can’t tell you how many voir dires I’ve had in which people
have not pointed to the McDonald’s case where the lady spilled the
coffee. The insurance industry apparently did a wonderful job of
having everybody see that’s how things go. My daily experience is the
precise opposite of that. So, I’m worried about that and to work
against it, I bring kids here to do a moot court before me in May and
talk to them a little bit about the history of this court, and getting
themselves involved in the system. And they love it. And a marshal
comes by and talks about what he does, and court reporters, and court
clerks, everybody does it. And I think that process is never-ending.
But certainly we, I don’t know about, if you would agree with me, but
the tone of civil discourse in this country is going terribly wrong.
Most things you listen to sound like people who really hate other
people. And that’s not the way it goes. The language used about some
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judges’ decisions by some of these bloggers is just scary. And it’s
troubled me.
MS. BRACEY:
It has led to some violence. I mean it has led to some —
JUDGE FACCIOLA:
Yeah, you should see some of the things that were said about me after
the White House backup cases. There were references to my ethnic
heritage. And all this wonderful stuff about what a dumb wop I was.
And this kind of stuff is scary. I mean, just yesterday there was Judge
Hogan’s decision on one of the Guantanamo cases. This blogger who
said, who is this fool named Hogan? He’s going to unleash these
dangerous people. Does he give a damn? And we’ve had the judge
who’s presiding over one of the cases involving the claim that the
president was not born in the United States. There’s been some great
nastiness out there and putting on the internet his vehicle so you can
see the license plate, or his home where the apartments where his law
clerks live. A subtle, not a very subtle kind of intimidation of him.
And after Judge Sullivan ruled in a gun case in a particular way, his
face was on the internet in the middle of a target. So, Justice
O’Connor has spoken about this at great eloquence. And I think, I’m
not afraid, and never will be afraid. But, what I am afraid of us is
about a society that has forgotten how to talk to each other. That’s not
what we’re about. It’s just getting very, very bad, and very scary.
MS. BRACEY:
Right. And the internet sort of makes it easy to —
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JUDGE FACCIOLA:
Yeah, because you can hide. You can be the blogger from Portland.
You don’t have to say your name or whatever. But with that said,
judges are as eligible for fair criticism as everyone else. And if you
can’t take it, go home. People sit at this table during settlements and I
say, “My only desire today is that when you leave, you both hate me
equally.” Because then I’ve done my job. I’ve got you to do what you
don’t want to do. But I would love to see that, the level of that
discourse get back to where I hope it was, where someone says Judge
Facciola said that. I think he’s wrong for the following five reasons.
Not Judge Facciola is a dumb wop. That doesn’t advance the
discourse.
MS. BRACEY:
No. And do you think that there are any sort of influences the court
has or that you’ve personally had on any public policy, or should have
any on public policy?
JUDGE FACCIOLA:
I think so. I mean I think the 502 was a judiciary at its very best. We
saw a problem. We realized that we had a unique perspective. And
we marshalled our resources and we did the job. And Judge Rosenthal
deserves an immense amount of credit. Not only because of the genius
but because of a shrewd, political maneuvering, and she got it done.
So, yeah. And we’ve done other good things like that as well. And I
think more things are coming in that way. You look at Judge Walton’s
work on rapes, on his work as Chair of that Commission on Rapes.
You look at Judge Friedman’s work on the 100-to-1 crack differential
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and what that has done. You look at the attention it’s brought to those
kinds of things. I mean, in a million different ways judges have an
obligation to try to formulate policy at least in advice to the legislative
body because we see things that they don’t. How likely would a
federal judge like Reggie, how likely would it be that he would
become an expert on prison rape, and yet he did, because he brought
with it the unique gifts of a judge.
MS. BRACEY:
And it’s fortunate that you have those opportunities. You know,
you’ve learned, and that if you see a problem and you can act on it.
JUDGE FACCIOLA:
Of course, yeah.
MS. BRACEY:
What about the impact of, we’ve talked a little bit about the impact of
political events, like the Monica Lewinsky on your life, but what about
sort of social or economic events?
JUDGE FACCIOLA:
It’s interesting, in the old days when they actually had Law Reviews in
libraries, I used to take them out from random eras, because they
almost perfectly reflected what was going on in the minds of law
students. It’s interesting if you, that ‘39 through‘45, it was the power
of the federal government to deal with the Depression, and the war,
and the Second World War and the dangers. Then it was the Cold War
and national security. In my era of the ‘60s it was the law and the
urban poor. You know, that was, you know, how the law should be
more concerned about people that were disenfranchised from the
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political process. So, I think the law cannot escape the social and
economic context in which it lives. And they always have a very
dramatic impact on it. You know, I just, I found this wonderful Law
Review article it seemed arcane, it was about a contract case in the
‘40s involving the steel companies and the resistance to it by the
federal government was based on the perception that in the war we
were going to have to swallow some of the antitrust laws to get the war
won. And the major concern was that these big steel companies would
then take advantage of that. And that was the heart and soul of this
contract case. And what looks like a silly little contract case, is really
a very dramatic inculcation of public policy. That’s why it’s so
fascinating. And that’s, you know, I loaned Judge Huvelle a book
called, Wolf Hall about Thomas More, and Henry the VIII, and all of
that, and you know, think about that, and lawyers involvement in that,
and the oath, and all that. I think that’s the most exciting thing about
being a lawyer or a judge. We are engaged. We’re right where it’s
happening.
MS. BRACEY:
And do you have any sort of feelings toward the terms, or reactions to
the terms judicial activism, or judicial legislation?
JUDGE FACCIOLA:
No. I think there is a legitimate and sophisticated academic criticism
that suggests that judges should be more deferential to the exercise of
powers by the other branches. Judicial activism is a blogger’s word.
No, but I think that’s a legitimate concern. I was reading just
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yesterday, there’s now academic criticism of how over the past twenty
years, is the court’s engagement class actions looking towards
institutional reform may not have been the best way to go about that.
So, I think it is perfectly legitimate to talk about what judges should be
doing and what judges shouldn’t be doing. And that’s fine. And if
you want to call it judicial activism, that’s interesting. I mean, in those
controversies which would now, for example – today in San Francisco
the attack on Proposition 8 is a perfect example of the people having
spoken but have they spoken in a way that violates the Constitution?
What is the judge’s role on all of that? I think that’s a fascinating and
exciting discussion to have. We never stop having it, which is good.
MS. BRACEY:
And do you see any evolution in your philosophies since you’ve
become —
JUDGE FACCIOLA:
No. I’m still, I still find myself most comfortable with Brandeis’
decision in Ashwander. I, you know, as I say, here the people rule,
and I rule through their elective representatives. So, I always am
looking in the first instances, where is my jurisdiction? You know, I
always try to keep in mind, as someone said, I should have a sign on
my desk that says, remember, stupid, in the last election, nobody voted
for you, which is true. And nobody did vote for me in the last election,
or in any of the previous ones either. So, I think that’s a legitimate
concern. That courts have limited jurisdiction. That’s what it’s all
about. And here the people rule. That’s why I think this Proposition 8
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case is going to be so fascinating. And I suppose you could look at the
White House backup tapes as my being a judicial activist. But I
stepped into a vacuum. And what choice did I have? And the best of
all possible worlds, I wish Congress would create a system that would
explain what would have to be kept and what would not. But until it
does, here we are. Now in terms of institutional reform, I don’t agree
with those. I think in the long run, the work of the federal courts in
trying to forge institutional reform has been most beneficial. Can I
point to five kids who are better educated now than they were 20 years
ago? No, I can’t. But my sense of it is that they have held the
municipal feet to the fire and brought about social change on behalf of
disenfranchised people who otherwise would be ignored. I think it’s
no answer to say well, you know mayors, whether in Philadelphia,
New York, or San Francisco, who are insensitive to these needs will be
thrown out of office. I suppose so. But Bloomberg is not going to go
out of office because of people’s concern of how he handles the
mentally ill. Or Fenty is not going to be thrown out of office. So the
political process there is not going to yield the same motivation that a
court would, can or must. But by the same token I can understand why
mayors feel that kind of intrusion is illegitimate and can hamper the
kind of progress they are trying to make.
-141-
MS. BRACEY:
Because it’s also so persistent. Because usually these things are not
Bloomberg’s problem or Fenty’s problem there like . . . 30-years-ago
problem, right.
JUDGE FACCIOLA:
They are institutional. Thirty years ago. I worked on a lot of
institutional cases as a lawyer and I remember one involved St.
Elizabeth’s Hospital, and you know there are actually people who
were born in St. Elizabeth’s Hospital and never been anywhere else in
their lives. Did you know there is actually a place where you would
leave a basket at St. Elizabeth’s with a baby in it that you didn’t want
anymore?
MS. BRACEY:
I didn’t know that.
JUDGE FACCIOLA:
Yeah. And that’s what was done to a lot of kids with Down syndrome.
There used to be, there was a time in American history when mentally
retarded people were institutionalized. I remember at St. Elizabeth’s
seeing the place where it was. Now they were severely mentally
retarded, not functioning at all. But, yeah. And there’s a perfect
example of how institutional reform brought about some change, the
treatment of those people. With that said, would I prefer that the
legislative body had gone in there, and came up with a system, with
checks and balances, and budgets? Of course. As I said, nobody
voted for us in the last election.
MS. BRACEY:
But it’s also when you come in, it’s too late.
-142-
JUDGE FACCIOLA:
Of course.
MS. BRACEY:
I mean, it’s not too late, it’s so late.
JUDGE FACCIOLA:
It’s very late. So then we’re in a way, performing a legislative
function of putting in place the system perhaps that should have been
there in the first place. Municipalities have the capability to do this
stuff. I mean, yeah. And that’s what I think we’d all prefer that they
do it free of this sort of intermittent judicial activism.
MS. BRACEY:
And they prefer not to get sued.
JUDGE FACCIOLA:
Yeah. But in many areas that have been successful. The treatment of
the mentally ill, used to be, the mentally retarded I think over the past
twenty-five years you would have to describe it as a remarkable
success when you think where it used to be. But poor people being
thrown in these barbaric facilities for all their lives, when they
presented no danger to anybody.
MS. BRACEY:
Right. What are the qualities of a good judge?
JUDGE FACCIOLA:
Patience, patience, patience. I think so. Those are good qualities of a
good magistrate judge because if you are trying to settle cases, you
must have the patience of several saints. Saint Francis, Saint Anthony,
every saint you can find. Because the process is a dynamic process
that has its own discipline and its own logic. And it must play itself
out. And you can never move faster than the process will let you.
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And you learn that every day. You know, they’re twenty thousand
dollars apart. You’ve been at it all day. You’re ready to tear your hair
out. But now is not the time to do anything except stay there, get a
glass a water, and say, “Well where are we folks?” Are you really
trying this case for $20 thousand? How about this? Here’s a middle
ground for you. Ten now, ten a year from now. Sigh of relief, we did
it. But no one has ever settled a case by being impatient. In terms of
other qualities I think a good judge has to have is dispassion and
understanding that the first reading was not the right reading and that if
you’re really going to understand this case/guy you better read that
three or four more times so it penetrates truly. And openness to new
ideas and an appreciation that not every legal issue has been resolved
and we get paid to resolve them. And that that is an exciting and
interesting process and not an intimidating one. You can never be, you
know, Dr. Martin Luther King said; he would say, “There could be
paralysis by analysis.” You’ve got to decide. That’s the judge.
Knowing that moment. Judge Sporkin always says it’s a moment
when a judge cracks a case. It’s that moment when suddenly, ah, I
know. He’s saying this, he’s saying this. The answer is right here
between them. Or it may be over here to the left or to the right of
them. But it’s there. And having the patience to go through that
process. Enthusiasm for the job is very, very important. And stamina
to hang in there. When most of this is probably a six-day-a-week job.
-144-
And it’s got to be that way. It’s not the kind of the job where you can
just walk away from. My wife will tell you, all too frequently, she’ll
think I’m crazy. Because I’ll be sitting there watching a football
game, and I’ll say, “Yeah, that’s it!” And she’ll say, “What are you
doing?” And I say, “Well I finally got it.” And she’ll say, “You know
you’re crazy.” I say, “Well you knew that when you married me 40
years ago. It’s too late to do anything about it now, woman.”
MS. BRACEY:
What are the qualities of a good lawyer?
JUDGE FACCIOLA:
Qualities of a good lawyer. From a judge’s perspective they are, a
good sense of proportion between resources and result. Judges are
very impressed by an efficient lawyer, that is a lawyer who has gotten
to the point and marshaled the resources needed to get to that point
without bringing more to bear than is necessary. Patience with the
judge who may not be getting it on the very first bounce; compassion.
An appreciation that the other side has a point, and a willingness to try
to understand that point. But a zealous desire to answer that point. An
appreciation of how the system is not perfect and needs the
cooperation of everyone to move from A to B. Easy grace with the
juries. Addressing them in a non-condescending way. The story I told
to some people yesterday, one side of the case were very sophisticated,
scientific people, and I told them that there’s a wonderful judge in
Maryland, and I don’t know her name, but she’s been a trial judge, an
appeals judge then went back to being a trial judge. Seen everything.
-145-
She said the most impressive expert witness she ever had before her,
she saw him at a social occasion, and she said, “Of all the things
you’ve done in your life, what is the one thing you did best?” And he
said, “Teach seventh grade.” And she said, “That’s it.” That’s why he
was so damn good. And I said, and that’s not demeaning. And as I
told these people yesterday, if you can’t explain it to a seventh grader,
you don’t understand it. And that’s what lawyers do. And I used to; I
actually did that exercise when I taught trial advocacy. I would give
my students a concept res judicata; explain it to a twelve-year-old.
Explain it to a twelve-year-old. And that’s to me the heart and soul of
being a lawyer. We live in a horribly complicated society. And what
we’re looking for is generalists who can understand that.
MS. BRACEY:
You mentioned that in the middle of football games, you think about
cases. So, considering your workload, describe the quality of your
family life.
JUDGE FACCIOLA:
It’s excellent. I have the good fortune to be married to a woman who
is devoted to her work as I am to mine, and we’ve had an
understanding from you know, the day we got married, that this is
what we are. This is, we’re public servants and we take it very
seriously. When the kids were younger, we had a fierce devotion to
them and to their activities in sports and education and we were able to
balance the two. And it’s never really been a problem for us, because
we give each other the space we need. You know. In a typical
-146-
evening when she at least was a classroom teacher, you know, I’d be
looking at a brief and she would be doing a lesson plan with one eye
on the television. So, then we got used to it. And so, we never did get
that chalet in Gstaad but we’ve had wonderful careers. And it’s hardly
a secret, it’s hardly a surprise that both of our sons are in public
service. But public service is demanding. It’s not, you know. But
that’s what it’s all about.
MS. BRACEY:
What’s the hardest part of your job?
JUDGE FACCIOLA:
Trying to find the proper balance, just like a lawyer, of resources and
result. Am I spending too much time on this? Why can’t I get this
done? Dammit, I want to get this done. But I’ve got to do it right,
finding that balance. It’s like sailing. There’s a point where you have
put up the right amount of sail, and the boat goes properly. Too little
sail, it doesn’t. And ironically, too much sail and it doesn’t. Finding
that. Same thing is true of the tiller, you know. An inch is too much.
And that’s it. So, it’s that proportion. You know, the judges I always
envy who have always been my idols, once had that magnificent
ability to get to the heart of the issue. Like Gerhard Gesell. You
know, some people say, you know, that judge is very sharp, he catches
it on the first bounce. Hell, Gesell used to catch it before they threw
the ball. No one could be that good. The guy is 29 years old; he was
general counsel of the SEC, for crying out loud. I mean, those guys
come along once in a lifetime. But those are the one judges I most
-147-
love. Who crack the case instantaneously. And that’s the toughest
part of being the judge.
MS. BRACEY:
Where in a lawyer’s career do you think a judgeship should begin . . .
.?
JUDGE FACCIOLA:
Towards the end. Yeah. I think there’s a big experience factor if you
do it too young, and so forth. I think maturity is, it’s a big part of it.
MS. BRACEY:
And what does sort of rises out or at least in private practice you see
some people who are judges for a while, and then leave —
JUDGE FACCIOLA:
Yeah, I’ve meant some of them. Yeah.
MS. BRACEY:
The Ken Starrs, and you know the Abner Mikvas and people like that
who —
JUDGE FACCIOLA:
Yeah. There’s one I worked with on electronic discovery issues who
was a district court judge in Delaware and is now at Covington in a
patent practice. And that’s a new trend. It’s interesting. I just wonder
if their subsequent careers give them as much satisfaction as their
previous careers.
MS. BRACEY:
There’s now nothing to look forward to.
JUDGE FACCIOLA:
Well, you know, there might be. Who knows? I would like to see
judges be compensated so that wouldn’t be a common career path.
But that’s the way it is. I don’t think I would have been as good a
-148-
judge at 42 as I was at 52, I just don’t think I was. I still had a lot to
learn.
MS. BRACEY:
What has been your greatest accomplishment as a judge?
JUDGE FACCIOLA:
The same thing I hope you would say if you asked Bruce Springsteen
that question. He would say, “You may not like my music.” But as
Jonathan Stewart said at the Kennedy Center Honors when they
honored Springsteen, “He didn’t leave any of it in the tank.” So, my
best accomplishment I think was that I can’t think of a single instance
where I left any of it in the tank, or I did anything less than what I
thought I was required to do. And that is what, when I look back on it,
that’s what I can say. I didn’t leave any of it in the tank. I didn’t leave
any of it in the locker room. I went out and gave it my best. Like a
Springsteen concert.
MS. BRACEY:
And what advice would you give to a new magistrate judge?
JUDGE FACCIOLA:
The same advice Pat Attridge gave me. Give yourself time to learn the
job. He said a year. He was wrong. I’d say three.
MS. BRACEY:
You say three?
JUDGE FACCIOLA:
Yeah. You have to understand how nuanced the position is, how many
different skills it requires. And give it time. And give yourself time to
adjust to its demands. And I think that’s it, one aspect of it. Second
-149-
aspect is, begin with the premise of your own ignorance. And you, the
learning curve is steep but manageable. Three, try to have patience
with everyone including yourself, most importantly, yourself. And
give yourself the time to learn the job and to be open to it. And the
fourth thing is to treat the people before you, the way you would want
to be treated if you were there. I began my career in New York in
front of judges who were tyrants, and yelled and all of that. I never
understood what the purpose of that was. And I think how we conduct
ourselves says volumes about our society and how it will be viewed by
the people who pay our salaries. And when people leave here and they
thank me for listening to them. That’s the highest compliment I can be
paid.
MS. BRACEY:
Well, thank you very much Judge Facciola.
JUDGE FACCIOLA:
My pleasure. That was really, really fun. I really enjoyed it.
-150-
Oral History of John M. Facciola
Index
Administrative Office of the U.S. Courts. See A.O.
A.O. (Administrative Office of the U.S. Courts), 107
A.U. (American University), 134
American educational curriculum, 3
American Trial Lawyers Congress, 96
American University. See A.U.
Anderson, Katie, 87
Apology by Plato, 16
Ashwander case, 140
attorney-client privilege, 101, 117, 121, 125
Attridge, U. S. Magistrate Judge Patrick J., 56, 85, 149
advice to new magistrate judges, 149
retirement, 56
Bailey case, 53
Barker, Robert
defending Maurice H. Stans in United States v. Mitchell, 43
Barry, Mayor Marion, 48
Bates, U.S. District Judge John D., 48, 49
Bloomberg, Mayor Michael, 141, 142
Brandeis, Justice Louis D., 26, 27, 140
Ashwander decision, 140
Brayman, Richard
Sedona Conference, 106
Breyer, Justice Stephen G., 98
New York City, 4, 9, 19
Brooklyn, 1, 6, 17, 30, 37, 87
New York Public Library, 12
Brown case, 26
Brown, Claude, Manchild of the Promised Land, 35
Brown, Patricia, 44, 51
Bryant, U. S. District Court Judge William B., 48
Bye Bye Birdie, 3
Cacheris, Plato, 59
Caro, Robert A., 23, 24
Carroll, U. S. Magistrate Judge John, 87
Catholic Charities, 132
Center for Responsibility and Ethics, 107
child pornography case, 108
City of God, The, by St. Augustine, 12
CLE (Continuing Legal Education), 101, 107, 116, 125, 132
A-1
Cohen, Herb, 75
Cohn, Professor Sherman, 24
computerized legal research
problems, 94, 95
Criminal Justice Act, 82
cryptography, 102
D.C. Bar, 102, 133
District of Columbia Superior Court, 48, 55
Douglas, Senator Paul, 5
Easton, Amy, 86-87, 93
ethnic heritage, 136
Facciola, Danny, 30, 39
Facciola, John M. - Personal
application to law school, 12
athletics, 4, 9
bar exam, 33
Catholic Charities, 132
childhood reading
A Young Skin Diver, 8
Yankee Bat Boy, 8
Midshipman Lee of the Naval Academy, 8
classical studies, 4, 6, 10, 11, 15, 70, 90
draft, 17-19, 21
discrimination, 19
ethnic heritage, 136
family
home life, 6-7
interest in education, 7
father, 1, 3, 6, 7, 12, 13, 20, 31, 38, 46
accountant at Heublein Inc., 7, 21
opinion about Vietnam, 17
remarried, 30
Georgetown University Law Center, 20, 21, 24, 70, 98, 101, 116, 123-124
ABA requirements for certification, 123
curriculum, 3, 10, 22, 122, 123, 125
elective system, 124
favorite law school classes, 25
Law Review, 21, 22, 91, 99
memories, 21
shaping philosophy on the law, 26
traditional mandatory curriculum, 124-125
tuition assistance from Heublein Company, 21
Giants/Redskins football game, 35
A-2
grandparents, 1, 6, 8, 9
Hamlet on Seminary Road, 46
Holy Cross, 10, 11, 16, 28
curriculum, 10, 22
Carroll, Father William, 15
junior year in Rome, 11
liberal Democrat, 27
LSAT (Law School Aptitude Test), 15
middle school jobs, 19
mother, 1, 2, 30
death, 7
move from New York to Washington, 39
National Guard, 17-18
Fort Gordon, Georgia, 17
Fort Jackson, South Carolina, 17
JAG (Judge Advocate General), 18
nickname "Genuzzo," 13
Regis High School (New York City), 2, 7, 9
curriculum, 3, 4
Father Brown, Assistant Principal, 3
favorite subjects, 6
Jesuit, 2
son, 108
certification, 108
technical competence, 108
summer jobs, 23
wife Gloria, 20, 28, 29, 31, 32, 38, 45, 46, 57, 72, 108, 145
certification, 109
Poughkeepsie, 30
teaching in Rockville, 30
work at the New York Public Library,12
Facciola, John M. - Professional
295 Forms, 62
adversary system, 70, 96, 126
advice to a new magistrate judge, 149
American Society of Travel Agents, 41
Assistant District Attorney in New York City, 31
Part 1C, 33
Rackets Bureau, 34
Special Narcotics Branch, 34
attorney-client privilege, 101, 117, 121, 125
"baby judge school," 60
border states vacancies, 130
breach of contract case, 118
Bureau of Prisons litigation, 49
A-3
CLE (Continuing Legal Education), 101, 107, 116, 125, 132
Bureau of Prisons, 49
child pornography case, 108
expenditure funds, 125
judicial activism, 139-140, 143
judicial vacancies, 129-131
jurors, 129
jury system, 128, 129
Justice Department
Appellate Division, 47
Chief of Special Proceedings, 49, 50, 51
Civil Division, 47
Special Proceeding Section, 54
law clerks, 85-95. See individual names
applicants, 90
"grandclerks," 86
hiring, 85-89, 93
Law Review experience, 91
OSCAR (Online System for Clerkship Application and Review), 90, 92
skills, 91
women, 88
legal competence, 110, 111, 116
limited jurisdiction, 140
lock ‘em up mentality, 126, 127
mediation, 65, 68, 74, 75
memorable cases, 100-125
moot court, 135
public misunderstanding of roles, 76, 134
New York Legal Tech, 108
public service, 38, 39, 45, 46, 54, 93, 147
qualities of a good judge, 143
qualities of a good lawyer, 145
Sedona Conference, 101, 106, 107, 110, 116, 125, 133
Advisory Board, 101
expenditure funds, 125
Sailing on Rough Seas, 125
Sedona Proclamation Cooperation, 106, 111
sense of humor, 54, 63, 64
St. Elizabeth’s Hospital, 49, 50, 142
taught trial advocacy, 125, 146
technical competence, 108
U. S. Magistrate Judge, United States District Court for the District of Columbia
appointment, 55
assignment of cases, 61
first Italian-American Magistrate Judge, 14\
FBI vetting, 56, 130
A-4
interview for Magistrate Judgeship, 56
opinions
dull prose style, 90
number of, 89
relationships with other judges, 23, 38, 48, 61, 63, 77, 78, 79, 80
Watergate Special Prosecution Force, 43
Wilkinson, Cragun & Barker, 39, 40, 42
dissolving law firm, 44-45
Federal Communications Commission practice, 41
Indian tribe claims, 40
Facciola, Michael, 2, 7
Facciola, Nina, 2, 7, 8, 31
Facciola, Regina, 2, 7
Facciola, Roseanne, 2, 5, 7, 31
"Facciola’s Law," 115
Farrell, Mike, 47
Federal Communications Commission, 41
Federal Judicial Center. See FJC
Federal Public Defender, 53, 82
Fenty, Mayor Adrian M., 141, 142
FJC (Federal Judicial Center), 63.
forensic scientists, 109
Frankfurter, Justice Felix, 26
Friedman, U.S. District Court Judge Paul L., 61, 137
100-to-1 crack differential, 137
Frontiero case, 23
Garland, U.S. Court of Appeals Judge Merrick B., 80
Gesell, U.S. District Court Judge Gerhard A., 147
Good Lawyer, The, by David Luban, 70
Great Dismal Swamp, 41
Grimm, U.S. District Court Judge Paul, 121, 122
Rule 502, 121
Guantanamo, 130, 136
Harlan, Justice John Marshall, 26
Here, The People Rule, by Richard Parker, 135
Heublein Inc., 21
Hogan, Frank S., District Attorney for New York City, 31-33, 36, 38
Hogan, U.S. District Court Judge Thomas F., 48, 49, 57, 94, 136
Holmes, Justice Oliver Wendell, Jr., 26
Hopson case, 122
Hughes, Charles Evans, 40
Hughes, Hubbard & Reed, 40
Huvelle, U.S. District Court Judge Ellen Segal, 139
A-5
Indian Claims Commission, 40
Inns of Court, 133
Institute for the Study of American Law, 96
Iqbal case, 98, 99, 100
Johnson, President Lyndon B., 16, 23, 24, 26
Master of the Senate by Robert A. Caro, 24
Jorgensen, Serge, 102-103
Transportation Safety Administration survey, 103
judicial activism, 139
Judge Advocate General (JAG), 18
jurors, 129
jury system, 128, 129
Kaiser Permanente
medical records burglarized, 103
Kay, U.S. Magistrate Judge Alan, 55, 57, 62, 63-64, 67
arbitration and mediation, 63
sense of humor, 63-64
Kealey, Dr. Edward J., 16
Kennedy, President John F., 5, 16, 23, 24
Kevin Gray case, 129
King, Dr. Martin Luther, 24, 144
Koeltl, U.S. District Court Judge John 4, 96
Advisory Committee on the Federal Rules, 96
Kollar-Kotelly, U.S. District Court Judge Colleen, 133
Kramer, A.J.
Federal Public Defender, 53
Lamberth, U.S. District Court Judge Royce C., 47, 48, 49, 87
Chief of the Civil Division, U.S. Justice Department, 47
D.C. Superior Court prisoners, 48
Law School Aptitude Test. See LSAT
legal certification, 108, 123
Lewinsky, Monica, 58, 138
Monica Beach, 59
limited jurisdiction, 140
lock ‘em up mentality, 126, 127
Loewy, Werner, 16
Long Island, 8, 19
LSAT (Law School Aptitude Test), 15
Luban, David, The Good Lawyer, 70
Manchild of the Promised Land by Claude Brown, 35
A-6
Mantel, Hilary, Wolf Hall, 139
March on Washington, 24
marginal utility, 101, 104-105
Marshall-Brennan Constitutional Literacy course, 134
Martin, John
President of Heublein, Inc., 21
Master of the Senate, by Robert A. Caro, 23, 24
McGuire, Al, 37
McGuire, Jerry, 31, 32
McKay, Judge Kevin, 35
McPeek case, 100, 104-105, 107
electronic discovery, 100
marginal utility, 101, 104-105
Mikva, U.S. Court of Appeals Judge Abner J., 148
Mitchell, U. S. Attorney General John, 43
Monihan, Don, 29
Bloody Mary party, 29
moot court, 135
Muhlendorf, Kevin, 87, 93
Mussolini, 1
Nadeau, Tom, 29
National Archives and Records Administration, 114
New York City, 30
Brooklyn, 1, 6, 8, 9, 17, 30, 37, 86, 87
Greenwich Village, 1
Little Italy, 1
Sullivan Street, 1
New York Legal Tech, 108
New York State
Sag Harbor, Long Island, 8
New York Kings County Supreme Court
Judge Kevin McKay, 35
Noyack, Long Island, 8
Poughkeepsie, 30
Nixon, Richard, 26, 42, 43, 134,
Stans, Maurice H., 42
subpoenas, 134
Vesco, Robert, 43
Norton, Congresswoman Eleanor Holmes, 130
Northern Illinois Law Review, 99
Noyack, Long Island, 8
O’Connor, Justice Sandra Day
comments on intimidation, 136
programs for high school students, 134
A-7
O’Keefe case, 107
Online System for Clerkship Application and Review, 92
Oot, Pat
Verizon, 98
OSCAR (Online System for Clerkship Application and Review), 90, 92
Parker, Richard, Here, The People Rule, 135
Peale, Norman Vincent, 5
Penn, U.S. District Court Judge John Garrett, 53, 54
Pinto, Angela, 29
Plato, Apology, 16
Podger, Sarah, 85
Poor People’s March on Washington, 24
Potts, Julie Anna, 58, 86
Proposition 8, 140
Quinlan, Mike, 104
Reed v. Reed case, 23
res judicata, 146
Richardson case, 53
Richey, U.S. District Court Judge Charles R., 55
riots in Washington, 25
Robertson, U.S. District Court Judge James, 60, 86, 92, 133
“grandclerks,” 86
OSCAR, 92
Robinson, U.S. Magistrate Judge Deborah A., 55
Rogers, Frank, 34
Rosenthal, U.S. District Court Judge Lee H., 137
RSA (Rivest Shamir Adleman)
computer security, 102
Rule 23
marginal utility, 105
Rule 502, 101, 121, 122
attorney-client privilege, 101, 121
Rule 8
“short, plain statement” of a claim, 99
Russia
space race, 3
Sag Harbor, Long Island, 8
Sedona in Exile, 133
Shaffer, U. S. Magistrate Judge Craig
collection of case data, 68
Somma, U.S. Bankruptcy Judge Robert, 4
Sonenberg, Sontha, 53
A-8
Sotomayor, Justice Sonya M., 130
Souter, Justice David H.
programs for high school students, 134
space race
Russia, 3
Sporkin, U.S. District Court Judge Stanley, 144
Springsteen, Bruce, 149
Sputnik, 3
St. Augustine, The City of God, 12
Stans, Maurice H., 42, 43
Committee to Re-elect the President, 42
Secretary of Commerce in the Nixon administration, 42
United States v. Mitchell, 43
Starr, Kenneth, 148
Stein, Jake, 59
Stevens, Justice John Paul, 130
Stewart, Jonathan, 149
Sullivan, U.S. District Court Judge Emmet G., 1, 13, 61, 136
technology, 41, 77, 90, 91, 102, 105, 115, 117
computerized legal research
problems, 94
search technology, 105
search terminology, 107
cryptography, 102
data sets, 119
e-discovery. See electronic discovery
electronic data, 97
electronic discovery, 96-97, 100-101, 103, 107, 117-118, 121-122, 125-126, 148
information security, 102
storage capacity, 97, 105
Tigar, Mike, 22
Title VII, 49, 99
Transportation Safety Administration
Serge Jorgensen, 103
Tupper, Michelle, 88
Twombly case, 98, 99, 100
U.S. Bankruptcy Court for the District of Massachusetts
Judges
Somma, Robert, 4
U.S. Court of Appeals for the District of Columbia Circuit, 79, 80
Judges
Garland, Merrick B., 80
Mikva, Abner J., 148
A-9
Wald, Patricia M. 132
U.S. Court of Claims
Judges
Williams, Mary Ellen Coster, 87
U.S. District Court for the District of Columbia, 61, 79, 85, 94, 130, 137
Judges
Attridge, Patrick J., 56, 85, 149
Bates, John D., .48, 49
Bryant, William B., 48
Friedman, Paul L., 61, 137
Gesell, Gerhard A., 147
Hogan, Thomas F., 48, 49, 57, 94, 136
Huvelle, Ellen Segal, 139
Kay, Alan, 55, 57, 62, 63-64, 67
Kollar-Kotelly, Colleen, 133
Lamberth, Royce C., 47, 48, 49, 87
Penn, John Garrett, 53, 54
Richey, Charles R., 55
Robertson, James, 60, 86, 92, 133
Robinson, Deborah A., 55
Sporkin, Stanley, 144
Sullivan, Emmet G., 1, 13, 61, 136
Urbina, Ricardo M., 50, 64
Walton, Reggie B., 137, 138
U.S. District Court for the District of Colorado
Judges
Shaffer, Craig, 68
U.S. District Court for the District of Delaware, 148
U.S. District Court for the District of Maryland
Judges
Grimm, Judge Paul, 121, 122
U.S. District Court, Middle District of Alabama
Judges
Carroll, John, 87
U.S. District Court for the Southern District of New York
Judges
Koeltl, Judge John, 96
U.S. Marshals Service, 48, 50
U.S. Supreme Court
Justices
Brandeis, Louis D., 26, 27, 140
Breyer, Stephen G., 98
Frankfurter, Felix, 26
Harlan, John Marshall, 26
Holmes, Oliver Wendell, Jr., 26
O’Connor, Sandra Day, 134, 136
A-10
Sotomayor, Sonya M., 130
Souter, David H., 134
Stevens, John Paul, 130
U.S. v. O’Keefe case, 107
Urbina, U.S. District Court Judge Ricardo M., 50, 64
Ute case, 41
Vesco, Robert, 43
Vietnam, 16, 17, 18, 19, 24
Hue, 18
Vietnam Wall, 18
Wald, U.S. Court of Appeals Judge Patricia M., 132
Walsh, Jeff, 29
Walsh, Richard P., Jr., 28
godfather of sons, 28-29
Walton, U.S. District Court Judge Reggie B., 137, 138
Chair of that Commission on Rapes, 137
Warren Court, 26, 27
Watergate, 42-43
White House, 25, 113, 114
archives, 114
backup tapes, 91, 107, 112, 120, 136, 141
change in administration, 114
e-mails, 117
Office of Administration, 113
Wilkinson, Ernest, 40
Williams, U. S. Court of Claims Judge Mary Ellen Coster, 87
Withers, Ken, 107
Wolf Hall by Hilary Mantel, 139
A-11
Oral History of John M. Facciola
Table of Cases and Statutes
Cases
Ashcroft v. Iqbal, 556 U.S. 662 (2009), 98-100
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 140
Bailey v. United States, 516 U.S. 137 (1995), 53
Bell Atlantic. v. Twombly, 550 U.S. 544 (2007), 98- 100
Brown v. Board of Education, 347 U.S. 483 (1954), 26
Frontiero v. Richardson, 411 U.S. 677 (1973), 23
Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005), 122
McPeek v. Ashcroft, 212 F.R.D. 33 (2003), 100, 104-105, 107
Reed v. Reed, 404 U.S. 71 (1971), 23
Richardson v. Ramirez, 418 U.S. 24 (1974), 53
United States v. Gray, 790 F 2d 1290 (2001), 129
United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), 107
United States v. Southern Ute Indians, 402 U.S. 159 (1971), 41
Statutes
Civil Rights Act of 1964, Pub.L. 88–352, 78 Stat. 241, 24
Criminal Justice Act of 1964 (CJA), Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552 (18 U.S.C.
3006A), 82
B-1
John M. Facciola
Current Employment
U.S. Magistrate Judge, U.S. States District Court for the District of Columbia (1997 to present)
 Authored 670 opinions now reported in Westlaw
 Presided over several hundred settlement conferences and settled many of them
 Served as Special Master in complicated litigation
 Tried civil cases to verdict in both jury and bench trials
 Lectured nationally and internationally on information technology and civil litigation
 Trained newly appointed magistrate judges as an educator for the Federal Judicial Center
 Awarded the Father John O’Connor Caritas Empowerment Award by the Archdiocese of
Washington, in recognition of my creation of the Brooks Interns, a program that permits
college students to aid in the work of the Archdiocesan Legal Network, and my service as
Chair of the Advisory Council of the Tenants Empowerment Network, a program that
helps families making the transition from homelessness to independent living
Professional Associations and Memberships
Current
 Member of Advisory Board and Co-Chair of the Planning Committee, Georgetown Law
Advance E-Discovery Program
 Member of the Advisory Board, The Sedona Conference, the leading force in advancing
professional education in the area of e-discovery
Previous
 Circuit Director, the Federal Magistrate Judges Association
 Member of the Board of Directors, Federal Judicial Center
 Master and former President, William B. Bryant Inn of Court
 President, Indigent Civil Litigation Fund
 President, the John Carroll Society, and chair of its Social Justice Committee.
 Editor in Chief, the Federal Courts Law Review, the electronic law journal of the Federal
Magistrate Judges Association and now its webmaster
Publications
 Foreword to Maura R. Grossman and Gordon V. Cormack, The Grossman-Cormack
Glossary of Technology-Assisted Review, 2013 Fed Cts. L. Rev. 7 (2013).
 With Jonathan M. Redgrave, Asserting and Challenging Privilege Claims in Modern
Litigation: The Facciola-Redgrave Framework, 2009 Fed. Cts. L. Rev. 19 (2009).
 Foreword to George L. Paul, Foundations of Digital Evidence (2008).
 Sailing on Confused Seas: Privilege Waiver and the New Federal Rules of Civil
Procedure, 2006 Fed. Cts. L. Rev. 7 (2006).
 Bruce Springsteen and the Remnants of a Catholic Boyhood, 14 Widener L.J. 923 (2005).
 Gatsby, Springsteen, and the Rich Young Man, 40 Catholic Lawyer 373 (2001).
C-1



Discovery: Faster and Shorter, a review of Discovery Problems and Their Solutions by
Hon. Paul W. Grimm, Charles S. Fax, and Paul Mark Sandler (Paperback) (American
Bar Association 2005), 2005 Fed. Cts. L. Rev. 7 (August 2005).
The Brave New World of Electronic Discovery, a review of Electronic Discovery: Law
and Practice by Adam I. Cohen and David J. Lender (Looseleaf) (Aspen Publishers,
2004), 2004 Fed. Cts. L. Rev. 2 (Feb. 2004).
A Working Manual for Employment Lawyers, a review of Employment Evidence by
Eugene K. Hollander (James Publishing, Inc. 2003), 2003 Fed. Cts. L. Rev. 3 (May
2003).
Previous Employment
1982-2006: Adjunct Professor of Law, Georgetown University Law Center, Columbus School
of Law at Catholic University. Taught a course in Trial Advocacy and Practice.
1982-1997: Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia. Served
in the Appellate and Civil Sections, and then as Chief of Special Proceedings. Responsible for
civil and criminal litigation with particular responsibility for habeas corpus, pro se prisoner
petitions, and mental health issues.
1973-1982: Associate and then partner, Wilkinson, Cragun and Barker. Litigation practice
with particular emphasis on representation of Native Americans in land claims and water rights
litigation.
1969-1973: Assistant District Attorney, New York County. Prosecutor in New York City, with
particular responsibility for organized crime and narcotics cases.
Education
College of the Holy Cross, A.B. in history with honors, graduated cum laude
Georgetown University Law Center, J.D.
 Member, Board of Editors, Georgetown Law Journal
Personal
 Married to the former Gloria Jean Carroll, a teacher in Fairfax County for 41 years
 Father of two adult sons and grandfather of four children
 Big fan of the Nationals, the Hoyas, and Bruce Springsteen
C-2
Kali N. Bracey, Esquire
Biography
Following her graduation from Spelman College in 1993, Kali attended Yale Law School where
she served on the Yale Law and Policy Review. After receiving her JD, she clerked for Judge
Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit. She then became a staff
attorney at the Public Defender Service from 1997-2001 where she represented indigent criminal
defendants charged with a wide variety of offenses from misdemeanors to murder in D.C.
Superior Court. She spent her last year at PDS in the appellate division representing defendants
on appeal. Then, Kali joined the law firm of Jenner & Block. Her practice included litigation,
insurance coverage, entertainment and new media, and white collar. After 10 years in private
practice, Kali joined the newly-formed Consumer Financial Protection Bureau in March 2012.
She began in the Supervision Policy Division where she wrote rules pursuant to the
Administrative Procedure Act defining larger participants in markets for the Bureau to supervise.
She also worked on auto lending and student loan servicing issues. In February 2012, she joined
the Office of the Executive Secretary as Senior Counsel and Executive Secretary where she
manages information flow to and from the Director, the clearance process for the Bureau, and
policy prioritization. In July 2012, she became Counsel to the Director and Executive Secretary
and added providing policy advice to the Director to her duties. She specializes in issues related
to auto and student lending. She lives in Washington, DC with her husband, Eric Brown, and
daughter, Zora Brown, who is six.
C-3

the honorable john m. facciola - Historical Society of the District of

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