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The Historical Society of the U. S. Courts in the Eleventh Circuit
11th Circuit
Historical News
Volume XII, Number 3
Winter 2015
http://sites.google.com/site/circuit11history
A marvelous life:
The Story of Judge Peter T. Fay
By Deborah J. Gander
Editor’s note: This article is based on a two-day interview of Judge Fay conducted by Dean C. Colson and Deborah J. Gander in December 2014.
Peter Thorp Fay describes his
life as one of “happy accidents,”
which fairly communicates that
his life has been both charmed
in ways that seem almost so
far-fetched they could only be
fiction, yet also peppered with
devastation, disappointment and
sometimes deep-seated fear.
Judge Fay has lived through the
times that defined our nation over
nearly the past century, and he
has been shaped by these events
in amazing ways. Each of these
events inevitably led to the next
series of encounters; had even one
been missing, might the whole
story have turned out differently?
Fay’s life began Jan. 18, 1929,
in Brighton, N.Y., a suburb of
Rochester, and he might have
remained there had the Great
Depression not devastated
his father’s insurance business
and wiped out everything the
family had. His dad, showing the
excellent judgment his son would
inherit, decided that, if his family
must start over with nothing,
it may as well do it someplace
sunny. In the mid-1930s, they
all moved to Fort Lauderdale, a
very small town with only a few
thousand permanent residents.
Pete was in primary school, and
Clockwise from top left: The Fay family, circa 1970, with
Mike, Pat, Pete, Darcy and Billy; Judge Fay introducing
President Ford in Miami Beach during a swearing-in
ceremony for thousands of new citizens in the mid1970s; Fay at work with the Air Force in 1953; from left,
Bill Frates, Ray Pearson, Pete Fay and, seated, Bob Floyd
on the night in 1968 that Fay became a limited partner in
the Miami Dolphins; from left, Pete and Pat Fay, Richard
and Pat Nixon, and Bill Hicks on Key Biscayne in the late
1950s; Fay playing basketball for Craig Air Force Base;
and, in the center, Fay waterskiing barefoot in a show at
Cypress Gardens in July 1950. (From the Fay family photo
collection)
Historical News is produced as a courtesy by The Florida Bar.
his brother, Jim, was two-anda-half years younger. Pete led
a happy life, unaffected by the
deep poverty he, his family and
his country were struggling
through in those years.
“Everyone was poor,” he said, so
he thought nothing of it. “You
literally lived on pennies, and
nickels and dimes.”
His father moved the family
to one of three homes on Rio
Vista Isles, now the location
of multimillion-dollar homes
but back then just a remote
area of Fort Lauderdale that
the neighborhood paper boy
did not want to service. So the
paper boy subcontracted Pete,
a third-grader, and gave him
10 cents per week to ride his
bike up and down the island for
three hours a day delivering the
Fort Lauderdale Daily News in
the afternoons, and the Miami
Herald at 5 a.m. on Sundays
(requiring him to be up by 4:30
to start on time). Hard work
started early, but it paid off. Life
was good.
In what sounds like a tall tale
straight out of “Big Fish” or other
Hollywood movies, Pete had the
unbelievably good fortune to
live across the street from world
See “Judge Peter Fay,” page 18
Message from the president
Judicial integrity – an international initiative
The International Bar Association
commenced an important initiative
on judicial integrity during the past
year. According to the IBA, while
the vast majority of the worldwide
judiciary conducts its efforts
“with the utmost integrity and
are tireless in their efforts to fight
corruption where it occurs,” in a
great many jurisdictions corruption
hampers the judicial process and
can produce results that pervert
LEONARD H. GILBERT
the resolution of disputes and the
enforcement of the law. One of the many purposes of the
initiative is to encourage impartiality and independence
in judicial decision-making throughout the world.
extensive 46-question survey was distributed to all IBA
members to be completed by the end of October.
As the legal world becomes more global and with
cross-border legal matters becoming more prevalent,
the ethical predictability of a country’s judicial system
becomes of greater interest to us all. Both the lawyer and
the client need to know how they will be treated by the
local court system before they need to use it. If people
and businesses are to sell products or invest money, for
example, they need to know how they will be treated in
the courts if they need to access the judicial system to
collect their money or enforce their contracts.
The IBA Initiative will certainly be helpful to all of us,
and the IBA is to be congratulated for taking on this
project to fight corruption and encourage independence
and impartiality in the judiciary worldwide.
Through the initiative, the IBA will raise awareness
in locations where judicial corruption is tolerated,
educate the public on the causes and consequences
of corruption, and promote the highest standards of
integrity among both judges and lawyers within and
without these jurisdictions. The IBA will take into account
how various countries successfully eliminated judicial
corruption as well as what those countries did to prevent
the recurrence of such conduct.
Leonard H. Gilbert
President
IN THIS ISSUE:
At the IBA meetings in London and Singapore, an
expert panel -- including three chief justices and judges
from eight countries, practicing lawyers and senior
government officials -- determined that a worldwide
study on the occurrence of judicial corruption has
never been conducted. The panel directed the IBA
to commission a survey of its vast membership to
determine the interaction among lawyers, judges
and other professionals who work with the judiciary.
The results of the survey, together with a study of
the available literature on the subject, will be used to
produce a report on the methods of judicial corruption
throughout the world. From the report, the IBA plans
to develop implementation activities designed to
stamp out judicial corruption through efforts in specific
individual countries.
The story of Judge Peter T. Fay....................................................... …1
Message from the president...............................................................2
Fishing with Judge Frank Johnson....................................................3
The Investiture of Judge Julie E. Carnes..........................................5
Ceremony highlights Judge Jill Pryor ............................................9
Voting Rights Act of 1965.................................................................. 12
In Memoriam: Douglas J. Mincher................................................. 13
In a Peruvian prison............................................................................. 16
Joseph E. Bulgarella appointed bankruptcy court clerk........ 17
Discussing the BCCI trial.................................................................... 28
The IBA showcased the initiative at its annual meeting
in Vienna in October (attended by some 6,000 delegates),
with a panel discussion. The panel recognized the
importance of an independent judiciary to determine
cases fairly and to follow due process and, as a prelude
to distributing the survey, explored many of the known
causes of judicial corruption and the best practices to
reduce or eliminate it. Following the conference, the
Judge Harvey E. Schlesinger honored.......................................... 31
The NCBJ meets in Miami Beach.....................................................35
Judicial heroes' courthouses named landmarks...................... 36
2
Fishing with Judge Frank Johnson
By Patrick Sims
Editor’s note: Patrick Sims served as law clerk for Judge Frank Johnson in 1974-75 and is now a lawyer in Mobile, Ala.
When Carolyn Cox and I began working for Judge Frank
Johnson in Alabama’s Middle District in June of 1974, we
soon began hearing him tell stories about fishing “those
swift waters below the Wilson Dam” in northwest Alabama
with the likes of Judge Lecil Gray and Pert Dodd. We
also came to learn that he was an outdoorsman (having,
among other things, floated down the Alabama River from
Montgomery to Mobile) and also a saltwater fisherman.
We were anchored in an inside pool in quiet water,
maybe 100 feet apart. We got our skiff in and its motor
mounted with no trouble. We then watched as the VIP’s
crew got their skiff in the water, but, as Curtis attempted
to pass the engine to Jimmy in the skiff, the handoff was
fumbled and the motor fell into the drink. When the
Judge and I stopped
laughing, I paddled
Frank Minis Johnson Jr. was a
over and, since the
judge on the U.S. Court
water was only about
three feet deep,
of Appeals for the Eleventh
fetched the engine,
brought it back and
Circuit until his death in 1999.
was able to get it
He also served as a judge on
running fairly quickly.
When I brought it
the U.S. Court of Appeals for
back to the VIP, Jimmy
the Fifth Circuit and the U.S.
reminded us of the
verity that it is best
District Court, Middle District
to run a wet engine
for a while to clear all
of Alabama, where he was chief
the moisture out. So
judge from 1966-1979.
we got the engine
mounted on the
skiff, and Jimmy began running it around the anchorage.
This was done deliberately at first, but when it was clear
that the engine was doing just fine, he became more
exuberant, running circles around the two boats, waving
his pith helmet, grinning and occasionally giving us
middle-finger salutes. The Judge and I were standing and
watching all of this quietly. As it unfolded, I leaned over
and said to him, “Judge, I bet they sink that thing again
before this trip is over.” He thought about it for a second,
spat his Levi Garrett deliberately, and said, “Hell, Pat, I
think they’re gonna sink it before the sun goes down.”
Jimmy soon decided that all the moisture was out of the
engine and headed back to the VIP. I cannot really fault
him for what happened next, because when operating a
hand throttle on a small outboard while looking forward,
it is sometimes difficult to remember which wrist turn is
fast and which is slow. In any event, as Jimmy approached
the VIP, intending to slow down, he sped up radically. The
result was that the skiff’s bow climbed the side of the big
boat, the skiff’s stern fell low, and the skiff, its motor and
Jimmy disappeared.
So the rescue unit sprang back into action. But this time
the engine had sunk while running, which meant it had
sucked in some seawater. After an hour or so of trying to
get it cranked, the Judge and I gave up. All fishing on that
trip consisted of our skiff towing Curtis and Jimmy in theirs
around the flats.
After a while, I let him know that I also enjoyed fishing,
and particularly enjoyed making trips involving several
days at Chandeleur Island, which is part of Louisiana,
though due south of Biloxi, Miss. As I was finishing my
clerkship, we discussed arrangements for such a trip.
Central to much of the discussion hereafter is the late
Curtis Caver, formerly deputy clerk and later clerk of the
Middle District. The Judge had hired Curtis as a deputy
in 1973 and relied on him for the rest of his life for many
things.
Chandeleur Island-Phase I
On our first trip to Chandeleur, the Judge and I went
in my boat (a 21-foot Stamas), and Curtis and the Judge’s
brother Jimmy traveled in some form of lake boat that
Curtis had borrowed for the trip and that had no business
in Gulf waters. I believe it was manufactured by VIP. The
trip involved a great deal of hilarity, when viewed from the
Stamas crew’s perspective.
First, a brief introduction to the basics: Fishing at
Chandeleur, as limited by Judge Johnson’s desire not to
wade fish in the sand and mud, consisted of drifting in
small skiffs over the then hugely expansive grass beds on
the west side of the island, with ventures now and then
into the myriad bayous and cuts. That required, of course,
getting the skiff to the island, along with an outboard
motor and needed accouterments.
On this first trip for him, Curtis had borrowed all of that,
and for safety also had aboard an enormous blown-up
inner tube, probably from a Boeing 707 or the like.
We launched at Pascagoula and traveled without
difficulty to the west end of Horn Island, where problems
soon arose. We headed out on the 15-mile leg across the
Gulf from Horn Island to the north end of Chandeleur. It
was not that rough, but neither VIP crewman could figure
out how to navigate the light seas. After a few miles, they
simply gave up and beckoned for us to come and assist.
The Judge and Jimmy swapped boats, and the Judge got
control of the VIP, down to and around the north end of
the island and down the west side the eight miles or so to
our anchorage. There the fun began.
3
Judge Frank Johnson, continued
and terns, the occasional magnificent frigatebird, and
sometimes in the late fall endless flocks of ducks. Once
his long cast entangled a floating pelican, and he quickly
announced that the possible loss of the creature “had
ruined my trip.” We were able, though, to paddle the skiff
over and gently release the great bird, to his visible relief.
Except for this first trip, sleeping was aboard the boats.
On this trip, because the VIP had no sleeping quarters,
Curtis had brought a large tent, which we set up near our
anchoring pool. The dominant mammal on Chandeleur
was the raccoon, which had no enemies when it reached
adult size and was not particularly concerned about
humans. Sleeping in the tent was fitful because of the
constant scratching of the raccoons on the sides of the
tent and their noises made in attempting to open our ice
chests. About 2 a.m., Jimmy suggested that the problem
would be solved if he “fired off a few rounds” from the
pistol he had brought, but the Judge told him to let the
natives be.
Other, smaller, natural events intrigued the Judge
as well, like finally resolving the mystery of why large
bumblebees were congregating at the Stamas (they were
there to capture the yellow flies, which were there in
pursuit of their human prey). And he found particularly
amusing the gathering of catfish on the surface at the side
of the boat to aid in cleaning the eggs and grits off the
breakfast plates.
After this trip was concluded, the Judge and I went
back on a number of trips in my Stamas. The Judge never
seemed that concerned about catching a lot of fish. He
seldom took any cleaned catch home to Montgomery. My
sense was that those trips meant relaxation and a chance
to appreciate the wildlife. And he truly appreciated the
Chandeleur wildlife; first the birds — the pelicans, gulls
The Judge never talked “shop” with me. Over the
course of a number of these trips, he mentioned only one
pending case, a particularly difficult death penalty case.
He gave a long explanation about it as we drifted during
a slow-fishing afternoon. He didn’t ask for any comments.
See “Judge Frank Johnson,” page 23
At Bill’s Fish Camp, Suwannee, Fla., in October 1992. From left: Buster Asmus, Bobby Black, Joel Dubina, Earl Moorer,
Frank Johnson, Lanier Anderson, Gerald Tjoflat, Curtis Caver and Pat Sims. (Courtesy of Judge Joel Dubina)
4
The Investiture of Judge Julie E. Carnes
By Luther D. Thomas, Retired Clerk of Court, Northern District of Georgia
Photos courtesy of the Eleventh Circuit Court of Appeals. Guerry Redmond, photographer.
The United States Court
by her colleagues on the
of Appeals for the Eleventh
Northern District bench. A
Circuit officially welcomed
recognized Shakespeare
the Honorable Julie E.
aficionado, Judge Thrash
Carnes to its bench in an
quoted the Bard: “All the
investiture ceremony at the
world’s a stage. And all
Elbert P. Tuttle United States
the men and women
Courthouse in Atlanta on
merely players. They have
Monday, Feb. 23, 2015.
their exits and entrances.
Following the playing of a
And one man in his time
patriotic medley of songs
plays many parts.” Judge
by the Georgia State Brass
Thrash went on to say,
Quartet, Chief Judge Ed
“I think that you will all
Carnes (no relation) opened
agree with me that Julie
the session. He recognized
Carnes’ performance on
each member of Judge Julie Judge Julie Carnes is welcomed to the Eleventh Circuit Court of
the stage of life has been
Carnes’ family, as well as
an extraordinary one.”
Appeals by family, friends and colleagues during her investiture
former United States Sen.
Praising Judge Carnes’
ceremony on Feb. 23.
Saxby Chambliss, whom the
great intellect and will to
chief judge thanked for his 20 years of service in the U.S.
excel in all that she undertakes, Judge Thrash noted that
Senate and House of Representatives. James Hatten, clerk
she had also enjoyed good fortune through wonderful
of the Northern District of Georgia, then led the group in
parents who provided an upbringing that left her with
the Pledge of Allegiance.
a genuine affection for the people and places of her
hometown.
The first speaker was the Hon. Willis Whichard of Chapel
Judge Thrash then recounted some of the highlights of
Hill, N.C. The only person in the history of North Carolina
Judge Carnes’ career, starting first with her tenure at the
to serve in both houses of that state’s legislature and on
United States Attorney’s
both of its appellate courts,
Office for the Northern
Whichard represented the
District of Georgia, where
Standing Committee on
she served as head of
the Federal Judiciary of the
that office’s appellate
American Bar Association,
section for many years.
which provides the
He described her as an
president of the United
outstanding brief writer
States with evaluations
and oral advocate before
of potential nominees to
the Eleventh Circuit, whose
the federal bench. Having
judges highly respected
personally vetted Judge
her for her preparation,
Carnes by reviewing her
candor and conversational,
work as a judge and by
down-to-earth style of
speaking with numerous
argument.
judges and lawyers with
whom Judge Carnes has
Explaining that, while
Judge Carnes takes her seat on the Eleventh Circuit bench.
interacted, Whichard
still an Assistant United
reported the Standing
States Attorney, Judge
Committee’s unanimous rating of “well-qualified,” which is
Carnes was temporarily detailed to the United States
the highest possible rating.
Sentencing Commission, Judge Thrash recounted his
conversation with Judge William Wilkins, chair of the
Chief Judge Thomas W. Thrash, Jr., Judge Carnes’
commission at that time. Judge Wilkins said, “It was a
longtime colleague and her successor as chief judge
great day for the commission when the attorney general
of the Northern District of Georgia, spoke next. Judge
selected Julie Carnes. She hit the ground running and
Thrash noted the great affection felt for Judge Carnes
5
Judge Julie E. Carnes, continued
However, according to this lawyer, his experiences with
Judge Carnes had not at all turned out that way. When
that same attorney appears for his first oral argument
before her as a circuit judge, he said, he will tell his client
that he knows a lot about her “and things look really good.
You are about to see the American justice system at its
best.”
Judge Thrash also provided insight into another aspect
of Judge Carnes’ service to the federal judiciary that
might be less well-known: her service on the Criminal Law
Committee of the Judicial Conference of the United States.
Then-Chief Justice William Rehnquist appointed Judge
Carnes to that committee in 2005, and Chief Justice John
Roberts selected Judge Carnes as chair of the committee
in 2007. Judge Thrash repeated some of the praise
— offered by judges, nationwide, serving on judicial
conference committees — for Judge Carnes’ leadership
during that period of time.
Judge Thrash concluded by noting Judge Carnes’
amazing ability to serve in these various roles and to serve
as the chief judge of the Northern District of Georgia,
all the while continuing to maintain an active civil and
criminal docket.
In his remarks, Chief Judge Ed Carnes spoke of the
inevitable name confusion that will occur on the Eleventh
Circuit with two Judge Carneses serving at the same
time on its bench. He humorously cited a footnote in an
Eleventh Circuit opinion he had authored, in which he
During his remarks, Chief Judge Thomas Thrash noted the great
affection felt for Judge Julie Carnes by her colleagues on the Northern
District bench.
overnight began to make very significant contributions to
the difficult work the commission had been tasked to do.
Julie Carnes was extremely hard-working, and she knew
the federal criminal code from A to Z. You just cannot
beat high intellect and firsthand experience. Julie Carnes
had both.” Judge Thrash reported that Judge Wilkins
further stated that, as a result of Judge Carnes’ impact
on the commission’s work, President George H.W. Bush
appointed her to the seven-member commission shortly
thereafter.
Moving on to the next chapter in Judge Carnes’
professional life, Judge Thrash noted that Georgia advisers
to President George H.W. Bush recognized Judge Carnes’
character, experience and ability and recommended
that the president appoint her to a vacant judgeship
on the Northern District of Georgia’s bench, which he
did in 1992. According to Judge Thrash, lawyers who
practiced before Judge Carnes consistently used the
same adjectives, describing her as “smart, fair, courteous,
conscientious, well-prepared and hard-working.” He said
that a well-known criminal-defense lawyer had recounted
his first appearance in court before her in 1992 in a drug
case. Knowing that she had spent her entire career as a
prosecutor, was a principal architect of the sentencing
guidelines and was a Republican nominee to the bench,
the lawyer had been concerned. The lawyer remarked
to his client on the way to the hearing that, although he
didn’t know much about her, things looked pretty bleak.
Former U.S. Sen. Saxby Chambliss recommended Judge Carnes to
President Barack Obama for the vacancy on the Eleventh Circuit.
6
Judge Julie E. Carnes, continued
said that his own research concluded that neither he nor
the trial judge, Julie Carnes, were related within seven
degrees. Chief Judge Carnes then referenced comments in
“The Almanac of the Federal Judiciary” from lawyers who
had practiced before Judge Carnes. He said the lawyers
surveyed had described Judge Carnes as “smart, superbright, always well-prepared, tough when she needs to
be, very courteous and judicial, and extremely gracious to
everyone.” He stated that there is no better qualification
for the circuit bench than having been a district judge, and
that no judge on the Eleventh Circuit had ever brought to
the circuit bench the level of district court experience that
Judge Julie Carnes, with her 22 years on the bench, now
brings.
Chief Judge Carnes then administered the official oath
of office to Judge Julie Carnes, using a Bible that belonged
to Judge Julie Carnes’ late father, Judge Charles Carnes.
Judge Julie Carnes’ husband, Steve Cowen, held this Bible,
and he, along with Judge Carnes’ daughter and son, Kelly
and Jeff Campanella, robed the newly invested judge.
Chief Judge Ed Carnes congratulates Judge Julie Carnes at the
reception following the ceremony.
In her own remarks, Judge Carnes explained the process
that led to her nomination, noting that, two years earlier,
U.S. Sens. Saxby Chambliss and Johnny Isakson had
asked if she would consent to their recommending her
to President Barack Obama for a vacancy on the Eleventh
Circuit. She expressed her gratitude to President Obama
for the appointment and to Sens. Chambliss and Isakson
for their support and confidence. In a true testament
to Judge Carnes’ unimpeachable qualifications, it is
particularly noteworthy that she was appointed to the
federal district court bench by a Republican president and
to the federal court of appeals by a Democratic president.
the hall from her present chambers. Citing several examples
of her interaction with and admiration for its judges over
the years, Judge Carnes noted that much of her career as a
lawyer was spent practicing before the Eleventh Circuit.
Herself casting a humorous eye at Chief Judge Ed
Carnes — “he who shares my last name” and “my
Doppelganger” — Judge Carnes recalled how the confusion
between her and Judge Ed Carnes began long ago, when
she was being vetted for the federal district court judgeship
in 1991. Her father saw a headline that read, “Carnes Being
Considered for Eleventh Circuit.” Her father “was thrilled”
until he started reading the article and realized the headline
referred to Ed Carnes, not his daughter. She related that,
over the years, lawyers have stopped her to compliment her
for witty and beautifully written opinions that were actually
written by Judge Ed Carnes. Eventually growing tired of
correcting these lawyers, she said she had finally decided
just to respond, “Thank you. I try real hard.”
Judge Carnes acknowledged several people who had
been instrumental in making her career possible, starting
with her first boss, the late Judge Lewis R. Morgan, for whom
she clerked on the old Fifth Circuit; former U.S. Attorney (and
later Judge) William Harper, who hired her as an assistant
U.S. attorney; former U.S. Sen. Sam Nunn, who supported
her nomination to the Sentencing Commission; Judge
William W. Wilkins, chair of the Sentencing Commission; and
former U.S. Attorney Larry D. Thompson, who had strongly
recommended her for the federal district court bench.
Judge Carnes concluded her remarks by thanking her
husband, children and other members of her family for their
support. Noting that her mother’s health did not permit her
to attend the ceremony, Judge Carnes offered special thanks
to both her mother and father “who gave me a wonderful
childhood and adulthood, and whom I credit for everything
good that has ever happened to me in life.”
Judge Carnes acknowledged the adjustment inherent
in leaving the Northern District of Georgia bench, where
she had served for 22 years, but said that her appointment
to the Eleventh Circuit was, in effect, a homecoming that
brought her back, full circle, to the place where she started
her legal career and adult life. Judge Carnes said the first oral
argument she ever saw was in the Tuttle Courthouse, when
she clerked for Judge Morgan. Not having participated in
moot court in law school, the first oral argument she ever
delivered was done before this same court where she had
clerked. Her office while an assistant U.S. attorney is across
In closing, she explained that her father, a veteran of
World War II and the Korean War, had worked multiple jobs
before using the GI Bill to complete college and law school.
In fact, after returning from service in the Korean War, her
7
Judge Julie E. Carnes, continued
father had, for a short period of time,
been a mail sorter for the post office then
located in the same courthouse building
at which she now works. Reflecting on
that irony, Judge Carnes stated, “Each day,
it gives me a smile when I walk past the
room where my father sorted mail … and
each day I savor the American Dream as I
think of my daddy … having no idea of all
the wonderful things that would happen
to him, and certainly not knowing that,
decades later, his daughter would be a
circuit judge in this same building. What a
great country we live in.”
Following those concluding remarks,
the Georgia State University Brass
Quartet played “God Bless America,” and
Chief Judge Ed Carnes adjourned the
proceedings.
Judge Carnes and the judges of the Northern District of Georgia.
The Eleventh Circuit Historical Society
P.O. Box 1556
Atlanta, GA 30301
(404) 335-6395 • [email protected]
OFFICERS AND TRUSTEES
Chief Judge Ed Carnes – Honorary Chairman
Leonard H. Gilbert – President
David A. Bagwell – Vice President, Alabama
Suzanne E. Gilbert – Vice President, Florida
George L. Murphy Jr. – Vice President, Georgia
Halsey G. Knapp, Jr. – Secretary
John M. Tatum – Treasurer
Alabama
Florida
Julian D. Butler, Huntsville
N. Lee Cooper, Birmington
Samuel H. Franklin, Birmington
Harry W. Gamble Jr., Selma
Richard H. Gill, Montgomery
Reginald T. Hamner, Montgomery
Scott A. Powell, Birmington
Jere C. Segrest, Dothan
Finis E. St. John, IV, Cullman
Timothy J. Armstrong, Ponte Vedra Beach
Joel D. Eaton, Miami
Katherine E. Giddings, Tallahassee
John F. Harkness Jr., Tallahassee
Benjamin H. Hill III, Tampa
John W. Kozyak, Coral Gables
James C. Rinaman Jr., Jacksonville
Lanny Russell, Jacksonville
Sidney A. Stubbs Jr., West Palm Beach
8
Georgia
Sarah B. Akins, Savannah
Robert M. Brinson, Rome
Wallace E. Harrell, Brunswick
Dan F. Laney, Atlanta
William H. Larsen, Macon
Michael N. Loebl, Augusta
Kirk M. McAlpin Jr., Atlanta
Chilton D. Varner, Atlanta
William N. Withrow Jr., Atlanta
Ceremony highlights
Judge Jill Pryor’s talents and promise
as circuit’s newest judge
By Patrick C. Fagan
Editor’s note: Patrick C. Fagan is an associate with Bondurant Mixson & Elmore, LLP, in Atlanta.
subtle questioning of this
sophisticated witness had
elicited the testimony that
was ultimately relied on
by the Georgia Court of
Appeals in affirming the
judgment, a victory that
Mixson called “all Jill.”
After further detailing the
intangibles of Pryor’s legal
career and her excellent
leadership at the firm,
Mixson closed: “Bondurant
Mixson & Elmore is
extremely sorry to lose Jill,
but we are happy for this
court and we are happy for
our country.”
Next, Akhil Reed Amar,
the Sterling Professor of
Law and Political Science
Chief Judge Ed Carnes
at Yale University, treated
commenced the ceremony
the audience to a journey
by thanking Judge Pryor’s
back to Pryor’s Yale Law
many family, friends,
School years. Professor
colleagues and other
Amar opened with a story
distinguished guests,
about Pryor’s first day of
including former Sen.
law school, which was also
Saxby Chambliss, for
the first day of the first class
attending. After the Paideia
Professor Amar taught at
men’s a cappella group,
Yale. Brandishing his notes
featuring Judge Pryor’s son,
from that day in 1985,
performed the national
Professor Amar recounted
anthem, Judge Carnes
how Pryor bravely broke
introduced Judge Pryor’s
Senior Judge J.L. Edmondson administers the oath of office to Jill Pryor the ice for him in that class,
former law partner, H.
with her husband, Edward Krugman, at her side.
volunteering a description
Lamar “Mickey” Mixson.
of how both the United
States Constitution and the
Mixson commended
Articles of Confederation “preserve states as independent
Pryor’s 25-year career in private practice as a commercial
entities.” In so doing, Pryor exhibited the legal acumen
litigator at the Atlanta law firm of Bondurant Mixson &
and courage that would eventually lead her to the
Elmore, LLP. To illustrate Pryor’s skill in the courtroom,
Mixson shared an anecdote about her witness
Eleventh Circuit.
examination skills. Mixson described how, in a highProfessor Amar also shared four lessons from academia
stakes trial, Pryor had cross-examined a witness in such
that bear on the role of the judiciary and explained how
a way that the witness was left thinking that she had
Judge Pryor was primed to meet these lessons. First,
done well before the jury. In reality, though, Pryor’s
like professors, federal judges have life tenure to “free
On Feb. 25, 2015, the
United States Court of
Appeals for the Eleventh
Circuit convened to invest
Jill A. Pryor as a United
States Circuit Judge. Family,
friends and colleagues
gathered before the en
banc Court to witness Jill
Pryor formally receive her
commission and take the
oath as a circuit judge. As
part of the ceremony, Judge
Pryor’s former and current
On Feb. 25, 2015, Judge Jill Pryor became the Eleventh Circuit Court of
colleagues and law school
Appeals’ newest judge. Family, friends, and colleagues came together
professor enumerated the
at the investiture ceremony to witness the special occasion.
many experiences that
primed her for this new
chapter in her career and
recounted how she had
touched their lives.
9
Judge Jill Pryor, continued
Senior Judge J. L. Edmondson shares his thoughts on the investiture
of his former law clerk, Jill Pryor, as Judge Lanier Anderson looks on.
During the ceremony, Judge Pryor thanked former U.S. Sen. Saxby
Chambliss and many others for their support throughout the
confirmation process.
(them) to do the right thing.” Second, both judges and
professors “write messages into bottles and toss them out
into the ocean,” such that the import and effect of these
writings might be felt only years later. Pryor had already
experienced this phenomenon, as her 1988 student note
on the Constitution’s presidential “natural born Citizen”
requirement became the definitive piece on a legal issue
that surfaced 20 years later during John McCain’s and
Barack Obama’s 2008 presidential campaigns. Third,
judges and professors “have to see the big picture.”
As Professor Amar explained, judges and professors
are generalists with a broad-sweeping portfolio. This
approach ensures that judges have the perspective to see
the bigger picture when deciding what may appear to be
narrow legal issues. Fourth, it is important that academics
and judges reach out to others in the face of an otherwise
lonely profession. For judges, the expanse of outreach
includes reaching up to the corpus juris of the United
States and previous judges; reaching out to other judges
and panels; and reaching down to the next generation of
law clerks and mentees. Professor Amar closed by noting
that Judge Pryor was already fulfilling these roles.
Edmondson explained, the work in a judge’s chambers
necessitates the criticism of each other’s work by the judge
and the law clerks. This requires the “great skill” of being
able to opine freely on another’s work without angering
that person. Pryor has this skill “in spades.” Finally, Judge
Edmondson noted that Pryor “is a person of integrity” who
authentically tells you exactly what she is thinking. It is
with that background that Judge Edmondson recounted
how he had advised Pryor to pursue the judgeship
because “the court … would be much enriched if she
joined.”
Judge Edmondson went on to highlight Pryor’s service
to the Eleventh Circuit while in private practice, as
well as the importance and rarity of her civil litigation
background to the Eleventh Circuit bench. Before formally
administering the oath to Judge Pryor, Judge Edmondson
responded to Mixson’s earlier comments, declaring,
“Mickey said they missed her down at the law firm. Mickey,
I missed her for 23 years. She is back. I am the winner.”
As the presiding judge, Chief Judge Ed Carnes also
hailed Judge Pryor as a hard-working, brilliant lawyer
who is courteous, collegial and a joy to work with. He
also lauded Judge Pryor’s wealth of experience in civil
litigation, experience he described as something “which
we need.” Chief Judge Carnes also jokingly reminded
Judge Pryor that it would be improper for her to
remember that he had once dissented on her behalf when
she had argued an appointed, pro-bono case before the
en banc Eleventh Circuit.
Following the presentation of Judge Pryor’s Presidential
Commission, Senior Judge J.L. Edmondson shared his
thoughts on the investiture of his former law clerk and
formally administered the oath to Judge Pryor. At times
growing emotional, Judge Edmondson described how
working with Pryor as his law clerk “was the beginning
of a beautiful friendship.” Judge Edmondson shared
three traits about Pryor that remained with him. First,
he explained that Pryor “is not a selfish person.” Despite
her strong academic credentials, Pryor was willing to do
anything that needed to be done in the office. Second,
Pryor has an “honest respect for other people.” As Judge
In the mold of Chief Judge Carnes of Alabama’s official
welcome of Judge Julie Carnes of Georgia to the court
earlier that week, Judge William Pryor of Alabama officially
welcomed Judge Pryor of Georgia to the Eleventh
Circuit. Judge William Pryor went on to praise Judge Jill
10
Judge Jill Pryor, continued
Mickey Mixson, Professor Akhil Reed Amar and Senior Judge J.L. Edmondson visit with
Judge Pryor after the ceremony.
Pryor for her gracious note to the other judges upon her
appointment, her work in immediately shouldering the
court’s burden, and her distinguished academic record.
He also pointed out that, with the addition of Judge
Jill Pryor, seven of the court’s eleven active judges had
clerked for either the Eleventh Circuit or its close sister, the
Fifth Circuit. Like the earlier speakers, Judge William Pryor
also highlighted how Judge Jill Pryor’s civil experience
is rare in the federal judiciary and is likely to strengthen
the court. Describing Judge Jill Pryor’s fit on the court,
Judge William Pryor closed: “We need colleagues who are
more than practitioners. We need judges who are serious
scholars of the law with a long view of its promise and
limits. We expect that Judge Jill Pryor will fill that need.”
Mixson, Bondurant Mixson & Elmore, President Obama,
Sens. Chambliss and Johnny Isakson, and the lawyers who
provided words of support throughout her long wait for
confirmation.
Opening remarks concluded, Judge Pryor then
addressed the court and guests. Approaching the podium,
Judge Pryor quipped, “I feel an irresistible urge to say, ‘May
it please the Court.’” Turning more serious, she continued,
“Today I stand humble before you as I accept the aweinspiring responsibility that your faith and trust has placed
in me. … I still have to pinch myself to believe that a girl
who grew up in Etters, Pennsylvania, which is not even a
town, it is the name of the man who ran the post office,
is standing here as a United States circuit judge.” Judge
Pryor went on to thank the many people who had made
this feat possible for her, including her husband, Edward
Krugman, as well as her parents, her family, public school
teachers, Judge Edmondson, Emmet Bondurant, Mickey
Judge Pryor also shared what she had learned in finding
her own voice as a lawyer: “Our profession offers great
opportunity for self-expression. The greatest fulfillment
of that opportunity is finding and owning our individual
voices. I urge you young lawyers and other professionals
to learn as much as you can about your craft from
experienced practitioners. But don’t be afraid to discover
and use your own voice.”
Reflecting on her 25-year career in private practice,
Judge Pryor expressed her recognition of the challenge
of lawyering. “I am very proud to have been a lawyer.
Although it might not always seem that way, we on the
court understand that you the lawyers work very, very
hard to do the very best to obtain justice for your clients,
even when it’s uphill in both directions. You are our
partners in the American system of justice, which could
not exist without you. And I pledge that I will never forget
that.”
With that advice, Judge Pryor was met with a standing
ovation while she joined her new colleagues on the
Eleventh Circuit bench. Finally, in perhaps a nod to her
protracted wait for Senate confirmation, Judge Pryor’s
investiture closed with the Paideia School’s men’s a
cappella group singing Billy Joel’s “The Longest Time.”
Photos courtesy of the Eleventh Circuit Court of Appeals. Guerry Redmond, photographer.
11
The Voting Rights Act of 1965
and ‘unlikely heroes’
By Clay D. Land, Chief U.S. District Judge, Middle District of Georgia
Judge T. Hoyt Davis and the Primus King case
On Aug. 6, 1965, President Lyndon B. Johnson signed
the Voting Rights Act of 1965, which finally established an
effective means for the enforcement of the Constitution’s
guarantee that no person shall be denied the right to vote
based upon race.
In 1944, civil rights activists
in Columbus, Ga., led by local
physician Thomas Brewer,
decided to challenge Georgia’s
All-White Democratic Primary.
Remarkably, this was almost a
decade before the Montgomery
bus boycotts and the landmark
Supreme Court school
desegregation decision, Brown
v. Board of Education; almost 15
years before the lunch counter
Judge T. Hoyt Davis.
sit-ins in Greensboro, N.C., and
(Courtesy of the Middle
District of Georgia)
the “Freedom Rides” to the
South; and almost 20 years
before the March on Washington and the enactment
of the Civil Rights Act of 1964. The Student Non-Violent
Coordinating Committee had not been formed, and
Martin Luther King, Jr. was a 15-year-old student about to
enter Morehouse College in Atlanta.
Without diminishing the role of the many leaders and
foot soldiers who fought courageously for voting rights,
it is appropriate on the 50th anniversary of this landmark
legislation also to recognize the handful of Southern
federal judges whose commitment to the rule of law
helped desegregate the South. Noted Southern historian
and author Jack Bass described these judges as “unlikely
heroes.” They grew up as part of the white establishment,
their education and professional success were not limited
by the color of their skin, and they never suffered the
personal indignities associated with being treated as
second-class citizens. They also were not social reformers.
But their devotion to duty prepared the ground for
dramatic social change. By applying the law without
fear or favor, they helped change America. Two of those
judges sat on the Court on which I currently serve as chief
judge -- the United States District Court for the Middle
District of Georgia -- and another sat on our sister court in
Montgomery. They found themselves in the middle of the
great legal battle for voting rights, and they rose to the
occasion.
Dr. Brewer and his supporters recruited a brave black
barber, Primus E. King, to be their foot soldier for change.
On July 4, 1944, Primus King attempted to cast a ballot
at the Muscogee County Courthouse in the Democratic
primary election. He was denied. After King was denied
the right to vote, Columbus attorney Oscar D. Smith, Sr.,
a white attorney, filed a lawsuit on King’s behalf in the
Columbus Division of the United States District Court for
the Middle District of Georgia. Harry S. Strozier, a lawyer
from Macon, also represented King.
Rights ‘unexercised’
The 15th Amendment to the Constitution of the
United States was ratified in 1870, and it unambiguously
established the right of all citizens to vote regardless
of their race or previous condition of servitude.
Notwithstanding the creation of this clear constitutional
right, many Southern states placed obstacles in the path
of black voters. These included poll taxes, literacy tests
and the “All-White Democratic Primaries.” Georgia had
variations of all of these.
At that time, the Middle District of Georgia had one
district judge, T. Hoyt Davis, who had his chambers in
Macon. Davis had recently been appointed by President
Franklin Roosevelt. Primus King v. Chapman would be
one of the first cases he would hear as a federal judge.
After a hearing in Macon, Judge Davis ruled in favor of
King, holding that racial discrimination in the Georgia
Democratic primary violated the Constitution of the
United States. Judge Davis rejected the Democratic Party’s
argument that the 15th Amendment did not apply to it
because it was a “private” organization and not sufficiently
connected to the state to implicate the Constitution. The
Fifth Circuit Court of Appeals affirmed Judge Davis’ ruling,
and the Supreme Court denied the Democratic Party’s
petition for a writ of certiorari, thus making Judge Davis’
ruling final.
The All-White Democratic Primary was particularly
problematic, because it had the effect of excluding black
voter participation even if a black citizen paid the poll tax,
passed the literacy test and was generally registered to
vote. Because Republicans did not nominate competitive
candidates in state and local elections in most Southern
states, including Georgia, elected officials were, for all
practical purposes, chosen in the Democratic Party
primary. Thus, by denying blacks the right to vote in the
Democratic primary, the white political establishment
effectively excluded black Americans from participating in
the selection of their government officials.
See “Voting Rights Act of 1965,” page 14
12
IN MEMORIAM
Clerk Douglas J. Mincher will be missed
Editor’s note: This notice from Chief Judge Ed Carnes was posted Aug. 24, 2015, on the Eleventh Circuit Court of
Appeals public website along with a notice that the flag would fly at half-staff for one week in memory and honor of
Doug Mincher.
from Youngstown
Douglas J. Mincher
State University and
passed away
an M.S. degree in
suddenly at the age
judicial administration
of 57 on Sunday,
from the University
Aug. 23, 2015. He
of Denver, College
was appointed clerk
of Law.
of the United States
Court of Appeals for
He will be
the Eleventh Circuit
remembered for
on March 16, 2015.
his outstanding
Mr. Mincher’s
service to the court,
career as a court
his often expressed
Douglas J. Mincher
love for his job and
administrator in
respect for Clerk’s
federal, state and
Office employees, and his warm and engaging
municipal courts spanned 25 years and included
personality. He will be missed. The judges and
service as chief deputy clerk for the Federal
employees of the Court of Appeals express their
District Court for the Northern District of Georgia
condolences and sincere sympathy to his widow,
for five years and the court administrator/clerk
Diana L. Mincher, and his family.
of court for the Municipal Court of Atlanta for six
years. Mr. Mincher graduated with a B.A. degree
13
Voting Rights Act of 1965, from page 12
officials after being excluded from the county voter
registration list. Ruling in favor of the plaintiffs, Judge
Bootle became one of the first federal judges in Georgia to
hold that the recently decided Brown v. Board of Education
decision authorized a “class action” in such cases.
Judge Davis’ courageous ruling sent shock waves
through the white political establishment. The ruling
came as the 1946 campaign for governor was heating
up. Former Gov. Eugene Talmadge was the front-runner
for the Democrat nomination, and he blasted the ruling,
stating, “If the door is once opened and we allow the
Negro to participate in our primaries, the next move will
be to allow them in our schools with our white children.”
Talmadge continued, “The next move would be a law as
we have in some states allowing them to stop in the same
hotels and restaurants with white people.” Expressing his
disdain for Judge Davis, Talmadge described Davis’ ruling
as “the interracial uplifter’s advancing the Negroes higher
than his limited civilization justifies.” Unfortunately, such
racist rhetoric emboldened many whites to deny blacks
the right that Judge Davis’ ruling sought to protect.
Judge Bootle’s civil rights rulings, which included the
desegregation of the University of Georgia, earned him
the scorn of many Georgians during that era. He was
criticized, threatened and ostracized. On one occasion, he
was even hanged in effigy outside the federal courthouse
in Americus after he ruled that the Americus City School
Board could not arbitrarily deny admission to children
from families who lived on a religious oriented, racially
integrated Sumter County commune known as Koinonia
Farm. Undeterred by the personal consequences of
his rulings, Judge Bootle remained steadfast in his
commitment to the rule of law.
Continued resistance to change
From Albany to Birmingham
Notwithstanding rulings by federal judges like Judge
Davis, blacks’ efforts to vote continued to be stymied
by poll taxes, literacy tests and sheer intimidation from
white supremacists such as the Ku Klux Klan and some
representatives of law enforcement. Although Georgia
had abolished the poll tax in February 1945 during the Ellis
Arnall administration and the Democratic Party could not
officially prevent blacks from voting in light of the Primus
King ruling, many voter registrars continued to prevent
black registration with unfair registration tests and with
the purging of black voters from the rolls. United States
attorneys in Georgia, including John Cowart of the Middle
District, conducted investigations of the purging of black
voters.
Starting in 1960, voter registration efforts began picking
up steam. And in 1961, young activists with the Student
Nonviolent Coordinating Committee set up shop in
Albany, which was located in the Middle District. They
intensified voter registration efforts there, but they also
planned to make Albany the epicenter for a broad-based
attack on continued racial segregation. Dr. King was
brought in to give the Albany movement the national
profile it needed to succeed, and he did in fact spend
some time in the Albany jail. But due in part to a shrewd
Albany Police Chief, Laurie Pritchett, who trained his
officers to avoid brutality and bloodshed, the Albany
movement did not achieve its organizers’ goals.
After the Albany movement failed to meet his
expectations, King focused his attention on Birmingham.
Learning from the mistakes in Albany and taking
advantage of the brutality of Birmingham’s Commissioner
of Public Safety, Bull Connor, he was able to capture the
attention of the nation in 1963 when Americans in their
comfortable living rooms viewed television news footage
showing young black children being attacked by dogs and
blasted with fire hoses. These efforts culminated in the
March on Washington later that year and the passage of
the Civil Rights Act of 1964.
Judge William Augustus Bootle
During the 1950s, racial
segregation continued to be
enforced under state law by
local government officials.
Whether federal judges would
have the courage to follow the
United States Constitution in the
face of strong opposition from
their neighbors remained to be
seen. Sadly, some did not. But
enough did. And Judge William
Judge William Augustus
Augustus Bootle, an Eisenhower
Bootle. (Courtesy of the
Middle District of Georgia) appointee to the district court
for the Middle District of Georgia,
was one who did. Shortly after his appointment, 20 black
citizens from Randolph County, just down the road from
Columbus, filed suit in federal court against county voting
While the Civil Rights Act was a major step toward racial
equality, it did not address voting rights directly, and that
piece of unfinished business needed to be completed.
According to King, “the Civil Rights Act of 1964 gave
Negroes some part of their rightful dignity, but without
the vote, it was dignity without strength.” The march
toward “strength” would occur in a small town, 54 miles
from the Alabama Capitol — a town on the banks of the
Alabama River, Selma.
14
Voting Rights Act of 1965, continued
Judge Frank Johnson and the march
Highway 80 to Montgomery at the Edmund Pettus Bridge
in Selma. Joined along the way by thousands from around
the country, they reached Montgomery on March 24. An
overflow crowd gathered in front of the state Capitol on
March 25 to hear King deliver his eloquent speech for
voting rights.
The first of three votingrights marches from Selma
to Alabama’s statehouse in
Montgomery ended in violence
on March 7, 1965, when
deputies beat protesters as they
attempted to cross the Edmund
Pettus Bridge. Labeled by the
press as “Bloody Sunday,” this
first march did not include King,
who returned to Selma a few
Judge Frank M. Johnson, days later to prepare for a second
Jr. (Courtesy of the Middle march. Thousands of protesters,
District of Alabama)
including King, members of the
clergy from around the country
and a substantial number of white participants, gathered
for this second march. But King, out of concern for the
safety of his fellow marchers, canceled the march, much to
the dismay of many of the protesters.
After the march, public support galvanized behind
voting rights, and a few months later Congress passed the
Voting Rights Act of 1965. President Johnson signed this
landmark legislation on Aug. 6, 1965.
Devotion to duty
The leaders and many foot soldiers of the civil rights
movement are certainly to be applauded. Often at
great personal sacrifice, they courageously helped
move Americans closer to realizing the full promise of
the Declaration of Independence and toward actually
experiencing the guarantees of the Constitution. But they
were not alone. Judges like Davis, Bootle and Johnson
played an important role in effecting change by their
devotion to duty — the duty to follow the law without
fear or favor. They did not shirk from that duty, even
though their rulings threatened their personal safety and
caused them to be socially ostracized.
The march organizers regrouped and concluded
that, for the march to be successful and for their fellow
marchers to be protected, they needed to allow the legal
process to play out in the only place they thought they
would be treated fairly -- the federal district court in
Montgomery, where United States District Judge Frank
Minis Johnson presided. King and his fellow protestors
had previously asked Judge Johnson to halt the police
harassment in Selma. Judge Johnson proceeded
cautiously but firmly. He was reluctant to grant relief
without a hearing and without assurance that any order
he issued would be enforced by the President of the
United States, Lyndon B. Johnson.
While King described Judge Johnson as a judge who
gave “true meaning to the word justice,” the Ku Klux Klan
labeled him “the most hated man in Alabama.” A cross was
burned on his lawn, and a firebomb damaged his mother’s
house. He had constant protection from the U.S. Marshal
Service for 15 years. Judge Bootle endured similar threats,
and Judge Davis was publicly slandered by the politicians
of his day.
These judges’ courageous devotion to duty helped
change America. It is not hyperbole to label them heroes,
albeit unlikely ones. As we commemorate the enactment
of the Voting Rights Act, we should not overlook their role.
And we judges should always be mindful of their example.
After conducting the hearing and upon learning
that President Johnson would nationalize the Alabama
National Guard to enforce his order, Judge Johnson
permitted King and the marchers to cross the Edmund
Pettus Bridge. His order barred Alabama authorities from
“arresting, harassing, thwarting or in any way interfering
with the effort to march from Selma to Montgomery.” The
protesters began their five-day, 54-mile journey down U.S.
Editor’s note: This article was published in the Columbus
Ledger-Enquirer on Aug. 2, 2015, and is reprinted here with
the author’s permission.
Visit the 11th Circuit Historical Society Website:
http://sites.google.com/site/circuit11history
15
On the front lines of the federal judiciary:
In a Peruvian prison
By David A. Bagwell
Thirty-two years ago in December of 1983, when I was
38 years old, I was what we then called a “United States
magistrate” for the Southern District of Alabama. (A few
years later, based in part on my testimony to the Senate
Judiciary Committee, whining about the stupid name,
they changed it to “United States magistrate judge,” a
name no better and maybe worse.) I had done a lot of
work for both the Administrative Office of U.S. Courts and
the Federal Judicial Center and, evidently as my reward
here on Earth, they sent me to Peru to conduct hearings
on prisoner exchanges under a treaty between Peru and
the U.S.
Back then, we had some Americans in prison in Peru for
narcotics trafficking, of course. Why else? Maybe seven or
eight men, and one old woman, maybe 80. The treaty –
similar to others like it with other countries – provided
that, if Americans in Peruvian prisons had exhausted all
their Peruvian appeals and had lost, then they could come
back to the U.S. in custody of the Federal Bureau of Prisons
and serve out the rest of their sentences in a U.S. federal
prison.
A side trip to the Inca ruins at Machu Picchu was one of the
highlights of David A. Bagwell’s 1983 working trip to Peru.
But there was a major catch to the deal. Since the
convictions of most or all of these people had not been
obtained in strict compliance with our U.S. Constitution
(ahem!), and since the treaty parties (don’t blame me,
blame the president and the Senate and Peru) did not
want these people to file habeas corpus cases upon
their return claiming that their confessions had been
beaten out of them or something, in order for them to
come back here, they had to waive all of their rights to
challenge their convictions. And, to do that, there had to
be a court hearing in Peru with a U.S. judge and a federal
public defender as an appointed lawyer, and a Justice
Department lawyer. They had to agree to waive and
give up any challenge in U.S. courts by habeas corpus or
otherwise, or not come back.
it on the local deal. Our diplomat suggested we fly to the
mountains for the holiday, to stay at our own expense
in Cuzco – the Inca capital – and visit Machu Picchu, and
after a little torture we agreed. Our diplomat’s husband
was about my size, and he lent me a knit rugby shirt to go
with my tan poplin suit. The next morning, we took a local
flight to Cuzco, taking off just exactly when my lost bag
was landing in Lima on the adjacent runway.
Upon arrival in Cuzco, one member of the team promptly
got altitude sickness from a couple of drinks and several
cigarettes. But Julie and I followed the local traditional
preventative or cure and, in the lobby itself, drank an
immediate pot of “maté de coca,” or coca leaf tea. This was
clearly not illegal in Inca country. It worked on the altitude
sickness at that elevation, but maybe not on Everest. I have
not since made a habit of drinking maté de coca.
So, I was the designated judge. I took my lovely wife,
Julie, and in early December of 1983, we flew to Lima,
Peru, on official passports. Of course, the air carrier lost
my bag in Miami, and I arrived with nothing but the tan
poplin suit I was wearing. We were picked up at the airport
by a bright diplomat from the U.S. Foreign Service and a
local driver – always a luxury. At the hotel in Lima, we met
our team.
Well, we had a fabulous time in Cuzco, bought some
alpaca sweaters (I needed them, having hardly any
clothes) and stuff, ate some wonderful grilled trout, went
to the local folklorico Inca shows and all of it. We toured
Inca sites and rode the train at dawn to Machu Picchu,
climbed around, saw the sunset, and rode back to Cuzco.
Not a bad deal, and all, for government work.
The diplomat told us that we had arrived just in time
for a three-day national holiday for “The Immaculate
Conception” on Dec. 8. The Immaculate Conception was
not a federal holiday in the U.S. – Presidents Day and
Columbus Day were embarrassing enough – but we got
Until we got back to Lima, anyhow, and had to earn our
living.
16
Peruvian Prison, continued
First, we went into the women’s prison and held a
hearing for the old woman. Her story, I gathered on the
side, was that her son had threatened that, if she didn’t
carry cocaine for him from Peru, he would throw her out of
her house. She did it, and she got caught. Lovely old lady,
narcotrafficante or not. No problem there.
As we were wrapping up in the warden’s office, the
warden got a phone call, which he handed off to the
diplomat. I later learned that it was the U.S. Embassy
calling to tell our diplomat that they had heard that there
was a prison takeover in progress and to get the hell out of
there. Nobody told us that then.
The next day, we had to handle the men, who were in
a Peruvian version of Alcatraz called “Lurigancho.” Now,
I had been in some bad prisons -- back then the district
judges made me try the district’s non-jury prisoner
Section 1983 lawsuits in the prison chapel of the Alabama
maximum security prison, and I have visited Alabama’s
death row and death chamber several times, as a lawyer
and as a judge. Alabama prisons are not nice.
And, there was a prison takeover in progress. The
convicts had grabbed the nuns and Gringa Inga as
hostages and demanded to be let out of prison. While that
was going on, although I knew nothing about it, we left
and got in our embassy van and headed back to the hotel
for one last evening dinner, at which I foolishly ate the
salad (which gave me fits for about two weeks upon my
return).
But Alabama has nothing on Peru.
The next morning, as we were at the Lima Airport,
the federal public defender – a fine man from Texas
who spoke good Spanish – came by with a local paper,
and said, “Judge! Look at this!” On the front page was a
photograph of the end of the prison break showing a
dead nun. Evidently the story was that the convicts took
the nuns and Gringa Inga as hostages and got a prison
ambulance. They made a break for it in the ambulance.
But the police were on both sides of the road with guns
and shot up the ambulance from both sides, killing eight
convicts, a nun and apparently a few police, too. (In the
Army, they taught us a crude name for an ambush in
which you shoot from both sides of the target, at each
other, and the Army told us not to do that.)
Our team went through security at Lurigancho prison
at the same time as some women who were there to put
on a Christmas show for the convicts. One was a striking
American woman who was a television star in Peru,
who went by “Gringa Inga” (I don’t name them; I am just
reporting). Gringa Inga was with a group of nuns. Fine
Christian ladies all, there to visit the prisoners and give
them comfort at Christmas. How Christlike!
As we were going in, the guy from the Federal Bureau of
Prisons said, “Judge, we need to hold your hearings as fast
as you can and get out of here!” I agreed, but asked why.
He said, “These people are not in control of this prison”
and indicated the guards, who appeared to be nervous
18-year-olds holding machine guns pointed inside the
prison walls with their fingers on the triggers. I agreed to
move fast.
A United States judge would have been a better hostage
than Gringa Inga and the nuns. I am mighty lucky that
they did not get me. I turned 70 this fall, but I still shudder
when I think about the nuns and Gringa Inga.
We spent most of the day holding hearings, nothing
unusual, except for one guy who presented a, um, close
call on the mental state necessary for a Johnson v. Zerbst
“knowing waiver” necessary to come home where he
could get treatment, rather than being killed there by the
other convicts.
David Bagwell is a member of the Board of this Society, but
in real life he is a solo lawyer in Fairhope, Ala., where he can
be reached at [email protected].
Bulgarella becomes bankruptcy court clerk
Joseph E. Bulgarella was appointed Clerk of the United States Bankruptcy Court for the
Northern District of Alabama in July of 2015. Before accepting this position, he spent 16
years as an assistant United States Bankruptcy administrator and the division attorney for
the Western Division of the Northern District of Alabama.
Joseph E. Bulgarella
He began his career in private practice, focusing primarily on the representation of
creditors in bankruptcy matters. Bulgarella received a B.S. in commerce and business
administration from the University of Alabama and a J.D. from Samford University’s
Cumberland School of Law.
17
Judge Peter T. Fay, from page 1
to be a world war. And you both will probably fight in it.”
What he was saying, and they understood, was: “You may
die in it.” Because of timing and age, they were spared.
As a kid during the war, Pete was aware of what was
happening, and awed by it. The country mobilized
instantly, in a way he doubts we could do today. Men
went to war; women went to work. In weeks, automobile
manufacturing plants were building airplanes for most of
the Allied countries. The war ended in September 1945,
not quite two years before Pete graduated high school;
although he had not been sent to war, he was changed by
it. He remembers the high school football star who, upon
graduation, immediately joined the service, went to war,
became a paratrooper and died. That made it very real.
His high school years were riddled with local store fronts
bearing stars for the soldiers who would never come
home. These young men were heroes, and their sacrifices
were honored and revered. Pete knew that, when the time
came and he was able, he would serve.
He also became a lifeguard during those years,
something that would not have happened had grown
men still been around. Because Fort Lauderdale had a
naval air station, and quite a number of drunk sailors
getting caught in the surf off its beaches, Fort Lauderdale
needed strong, sturdy guys who were good swimmers
and could pull the sailors out. Given his size, age and
the fact he had always been a strong swimmer, Pete
was selected and sent to North Carolina for life guard
training with the Red Cross. That position allowed him
to earn good money at a job he enjoyed. It also cost him
the opportunity to be on the high school swim team the
following year — having worked as a public life guard,
he now was considered a professional swimmer and no
longer qualified for high school swimming. Fortunately, he
had gifts for other sports. And gifted friends.
Pete’s closest friend growing up, Herbert “Buddy”
Behrens, was the Boys National Champion and 1947 Juniors
National Champion (in both singles and doubles) in tennis.
Rollins College, located in the center of the state, was a
great tennis school, and Rollins wanted Buddy Behrens
badly. Buddy told the coach recruiting him that he would
go to Rollins if Pete Fay would come and be his roommate.
(Pete already had received scholarship offers from Cornell
and the University of Florida.) Coach Jack McDowell, the
athletic director and football coach at Rollins, offered Pete
a football scholarship and promised him they were going
to resume the basketball program that had been dropped
during the war. Buddy and Pete went to Rollins in the fall of
1947 and roomed for one year. Rollins resumed basketball,
so Pete played basketball and football, and rowed crew.
Just as he had been in high school, Pete was the highest
scorer in the state in basketball at Rollins College. After his
first year, something happened.
From left, Dean Colson, Deborah Gander and Pete Fay, during the
December 2014 interviews that formed the basis for the article. (Photo
courtesy of Deborah J. Gander)
famous lion tamer Clyde Beatty, whom he befriended.
Beatty opened a zoo on what was then Northeast 10th
Street (now Sunrise Boulevard), which included shows
with lions and tigers. The zoo included several elephants
that rode people on their backs in carriers – young Pete,
however, rode on the heads of the elephants, wearing a
pith helmet. He was 8 or 9. Life was really good. And fun.
Young Pete was athletic. He played sports in the
neighborhood, on the side of the road, in the sand spurs
and in school. In high school, Pete lettered in football,
baseball, basketball and track. Basketball was his best
sport. He had a great year in 1946: His basketball team was
the high school state champ (one of two years while he
was on the team), and it was his first year making All-State.
Athletics opened doors for Pete – or at least opened the
first door that led down a long corridor of more and more
doors that continued to open through connections that
seemed to be almost divinely placed. Or written in by
Hollywood screenwriters.
On Sunday, Dec. 7, 1941, Pete and his brother were
returning home from a movie when they were met in
the streets by young men hawking “Extras!” – the special
papers that were put together when critical events
occurred after the regular papers had been published that
day. This “Extra!,” of course, was announcing the bombing
of Pearl Harbor. Pete’s father was a World War I veteran.
Upon learning of the bombing, he took his sons, who were
barely teenagers, sat them down and said, “This is going
18
Judge Peter T. Fay, continued
trial work full time. In his final Air Force trial, a man who
had finished his tour of duty and was leaving the base
had several too many at his going-away party. He woke
the next morning with his hand in the cash register of the
local PX and military police present. Pete argued “lack of
malice” because the soldier was so drunk he didn’t know
where he was. The soldier was sent home with a written
reprimand and an honorable discharge, which infuriated
the base commander and led him to call in and excoriate
each of the officers who had served on the tribunal.
Pete, who lacked legal training but had a well-developed
sense of right and wrong, complained to his immediate
commander that nobody would be able to get a fair trial
now that all the officers knew what had happened. The
following day, Pete was offered an early discharge, which
he accepted.
The dean of Rollins College approached Pete with a
proposition. A young man from a prominent family was
coming to Rollins College, and this young man was known
to have a bit of a wild streak. The dean thought Pete was
just the roommate to keep the new guy out of trouble.
The young man, Dick Pope, Jr., was the son of Richard
Pope, Sr., the man who had built and operated Cypress
Gardens. At that time, more than 20 years before Disney
World, Cypress Gardens was the attraction in Florida. Dick,
Jr., was a world champion water skier, and soon he was
Pete Fay’s roommate. Pete and Dick became like brothers,
and they stayed friends until Dick’s death not long ago.
Dick taught Pete to water ski, and they started a
water ski team at Rollins. The summer following Pete’s
sophomore year, 1949, Dick persuaded him to forgo
another summer lifeguarding on Fort Lauderdale beach
and join Dick, instead, as a water skier in the shows at
Cypress Gardens. Pete agreed and spent the summers of
both 1949 and 1950 performing in four shows a day at
Cypress Gardens – “the best job I ever had.” He waterskied
solo, with a partner, in pyramids, barefoot, over ski jumps
and while flying kites. He had a blast and developed a love
of waterskiing that has stayed with him through life. He
continued to ski barefoot into his 60s and even took a ski
jump in his 80s. He still gets up on skis at least once a year,
just to prove he can. At Rollins College life, by this point,
was grand.
With basically no notice of his discharge or time to plan
for civilian life, he placed a phone call to the University of
Florida College of Law and applied for acceptance to the
incoming class, which was to start in about one week. The
assistant dean, Frank Malone, told him there was no way
they could verify his credentials and have him admitted in
time. Pete, using the art of persuasion and a bit of patriotic
blackmail, and name-dropping the president of Rollins
College, convinced Dean Malone that accepting a young
veteran returning from service in the war was indeed the
right thing to do. He was accepted over the phone and
got to Gainesville in September 1953, for the morning of
orientation into his law school class. And what a class it
was.
After his final summer as a performer at Cypress
Gardens, Pete returned to Rollins College, and he
taught 10th-grade world history at Winter Park High
School as part of his major in education with a minor in
history. His plans had been to be a high school teacher
and athletic coach. But, as most men did back then, as
college graduation approached he signed up to serve
his country in the military. The Korean War had begun
the year before. In 1951, during his last month of college,
Pete joined the Air Force. He had grown tired of waiting
to hear from the Navy – the first choice of Fay men going
back over generations. The Navy acceptance letter came
one month after he was commissioned in the USAF, a
relatively new branch of the military. One week after being
graduated from Rollins College, he was sent to Lackland
Air Force Base in San Antonio, Texas, for basic training and
Officer Candidate School. He graduated OCS as a second
lieutenant in December 1951. He was sent to Craig Air
Force Base in Selma, Ala., where he spent one year and
played on the basketball team, before being assigned
to Lajes Field in the Azores as part of the Military Air
Transport Services.
His classmates included Lawton Chiles (future U.S.
senator and two-term Florida governor), Reubin Askew
(state senator and two-term Florida governor), Lenore
Nesbitt (U.S. District judge for the Southern District of
Florida, and the only woman in the law school class
that year), Dexter Douglas (general counsel to Lawton
Chiles while governor), D.L. Middlebrooks (U.S. District
judge for the Northern District of Florida), and James
Kynes, Jr. (Florida attorney general). Pete and Reubin
were roommates for their first semester. What each of
these men had in common, other than esteemed careers
in politics and public service down the road, was their
military service in the Korean War that had qualified them
for the G.I. Bill. Men like Pete, who had grown up with
no financial prospects of going on to graduate school
(where athletic scholarships did not exist), were afforded
a graduate education that included completely paid-for
tuition, books, room and board. The G.I. Bill changed
the landscape of our country and offered education and
corresponding economic opportunities to thousands
of men who otherwise would not have had it. Pete Fay
and his law school classmates were among those men.
Before they all went on to great careers, they were young
At that time, if there were no attorneys on base, the
base commander appointed one officer as prosecutor
and one officer as defense counsel. Pete was appointed
defense counsel and began to think he might want to do
19
Judge Peter T. Fay, continued
home one Sunday morning and asked Pete to join him as
an equal partner in their own firm. That firm, Frates & Fay,
soon became Frates, Fay, Floyd & Pearson.
guys, classmates who became good friends and, by
happenstance, became part of the story of each other’s
lives. Lawton Chiles had a ski boat, so Pete taught them all
how to water ski. Pete baby-sat for D.L. Middlebrooks and
his wife, and also worked in the law school library for 50
cents an hour.
During this time, and as a direct result of being a
partner at Frates, Fay, Floyd & Pearson, Pete found himself
a limited partner in the Miami Dolphins – a professional
football team struggling so painfully that it was hard to
give tickets away. Shortly after becoming a limited partner,
he was tasked with negotiating a contract with the young
football coach that Joe Robbie was trying to woo away
from Baltimore and down to Miami: Don Shula. When
Shula’s lawyer informed Pete, “Don Shula is to have total
control of anything involving football. Joe Robbie can
charter planes and make hotel reservations. Don Shula
does the football. No interference.” Pete, an athlete who
understood the power of a great coach, responded simply:
“You write it as strong as you can, then give it to me and I’ll
make it stronger. That is exactly what the limited partners
want.” With that contract, Don Shula embarked on his
career as the head coach of the Miami Dolphins, and
became and remains the winningest coach in NFL history
and the only person ever to have coached an NFL team to
a perfect season.
After Pete graduated law school in January 1956, his first
choice was to join the well-known, eminently respected
plaintiffs’ personal injury firm of Nichols, Gaither, Green,
Frates & Beckham. They were not hiring. Instead, he joined
Patton and Kanner from January 1956 through June 1956
and worked on corporate contracts for $300 a month.
When an opening at the Nichols firm became available,
Pete was their first choice, and his old friend from high
school in Fort Lauderdale, Bill Hicks, approached him.
Pete was loyal to his firm and refused to speak with the
Nichols firm. But with a stable of great persuaders who
knew how to get what they wanted, Billy Gaither instead
went directly to Stuart Patton – on the golf course, where
most big deals were brokered in those days – and asked
Patton to release Pete so the Nichols firm could have him.
Much to Pete’s surprise, he was summoned to Stu Patton’s
office and fired. “I know you want to be a trial lawyer.
Go be one,” Patton said graciously, opening yet another
door that would lead down that surreal corridor that was
unfolding as Pete’s life.
But we have skipped over two very important events in
Pete’s life during these early work years. First, when Pete
was relatively new to the Nichols firm, U.S. Sen. George
Smathers invited Vice President Richard Nixon and his
family to visit South Florida without making plans for
what to do with the ladies if they accepted. On the golf
course one morning, it was decided that Charles “Bebe”
Rebozo would lend them his home on Key Biscayne, and
Billy Gaither would lend them his young lawyer named
Pete Fay to entertain the Nixons with his ski boat and
teach them to water ski. And Pete did. Tricia and Julie both
learned to water ski on that trip. “We even got Richard
Nixon up once,” Pete laughs. Pete later agreed to be the
chairman of the Democrats for Nixon. When Richard Nixon
was elected president of the United States, Pete changed
his registration to Republican “to be polite.” He and Nixon
had become, and long remained, good friends.
In 1956, Pete joined the law firm of Nichols, Gaither,
Green, Frates & Beckham, the pre-eminent plaintiffs’
personal injury law firm in Florida and possibly the country
at that time. He describes Perry Nichols as “fearless,” a
self-made man who had come from little to nothing,
seen an opening in representing the little guy against
large insurance companies when most other firms were
courting the insurance companies as clients, and put
together a cadre of extraordinary talent that would spread
out over generations in South Florida and go on to found
their own powerhouse plaintiffs’ firms: Billy Gaither, Bill
Frates, Bill Colson, J.B. Spence, Bill Hicks, Aaron Podhurst,
Bob Josefsberg, Murray Sams, Sam Daniels and Alan
Schwartz. The Nichols Gaither DNA runs, at least to some
degree, through nearly every major plaintiffs’ personal
injury firm in South Florida. Somewhere in the family
tree, at least one esteemed forefather held a seat at the
Nichols Gaither “Roundhouse” – the audacious, slightly
ostentatious building located at 1111 Brickell on the bay.
Pete Fay was among them.
Second, at a pool party in the late summer of 1957, he
met Claudia Pat Zimmerman, a former Miss Florida for the
University of Florida. He asked her out and she accepted.
He proposed marriage on their first date, and she rejected
him. He asked again in October 1957; again, she said no.
Starting around Valentine’s Day 1958 (at least as he tells it),
she belatedly tried to accept his marriage proposal many
times, but he said no. Finally, on Oct. 1, 1958, Pete and Pat
took their wedding vows, and so began the marriage that
has lasted 57 years and counting. Pete and Pat adopted
their children, two sons and a daughter, through Catholic
Services. They quickly had three children under age 4, all
in diapers. It was a busy time, but an intensely happy one.
Pete was assigned to a two-man trial team with Bill
Frates. In their first 12 months as a trial team, they tried 32
cases to jury verdict. The next year, they tried 33 cases to
jury verdict. Later, Pete was reassigned to work as a trial
team with another partner, J.B. Spence, and they had a
very successful run as well. Pete left the Nichols Gaither
firm on Feb. 28, 1961, when Bill Frates showed up at his
20
Judge Peter T. Fay, continued
private school tuition for three children instead of just
one. Pete saw no possible way to make it work other than
going back into private practice. Again, “Pat said, ‘No.’ And
she was right.” Somehow, even at triple the expense, they
made it work; but Pete felt burdened by the economic
sacrifice of being on the federal bench and the fear of not
being able to provide for his family and this very real need.
He resented the “promised but not delivered” pay raises
federal judges were supposed to have received. Many
times during these years he wondered if staying on the
bench was the right thing for his family; Pat, however, did
not wonder. And she had spoken. So he stayed.
Pat Fay’s influence may be the defining aspect of Pete
Fay’s career. When President Nixon appointed Pete to
the federal trial bench for the Southern District of Florida
in 1970, she persuaded him to accept the appointment,
and she would not entertain discussion of his leaving the
bench even when the economic realities of having left a
lucrative private career for public service were bearing
down on the young family.
Pete had paid almost 50 percent more in income taxes
as a private attorney the year before he took the federal
bench than his gross income would be his first year as a
federal judge. The cut in pay was dramatic, and it forced
him the following year to resign from four country clubs
he had long belonged to and enjoyed with his family.
What mattered to Pat, however, was that he no longer
worked 12-hour days and weekends and was now home
for dinner and spent both Saturday and Sunday with the
family. She enjoyed the home life, and so did he. But, in
the ensuing years, it became evident that their elder son,
Mike, an apparent genius, suffered a debilitating learning
disability that would require intensive and expensive
intervention if he were to have any chance at success.
In the years before the Individuals with Disabilities
Education Act (IDEA) , the expense of a learning disabled
child fell entirely on the family with no help from the
public school system. His son needed help, and it was up
to him to see that he got it.
Judge Fay earned a reputation for ruling from the
bench, dictating his orders directly into the record. He
moved cases. While working at the trial level in 1972,
he was selected to handle one of the first Multi-District
Litigation cases. An Eastern Airlines plane had crashed
into the Florida Everglades. When the MDL was assigned
to him, he spoke to other judges and quickly determined
the most efficient and effective way to move the case
would be to appoint a Plaintiffs’ Steering Committee.
He appointed a young Aaron Podhurst, formerly with
the Nichols Gaither firm, who has since risen to national
and international pre-eminence in aviation cases. Judge
Fay also handled a lot of drug cases in the early ’70s. He
received several death threats and, once, his children were
threatened because of his role in handling a large drug
trial. Unbeknownst to the Fay kids, they were followed to
and from school at Westminster Christian and watched by
U.S. marshals. The threats to his own life never bothered
him; the threats to his children made him question his
decision to join and stay on the bench.
Pete did two important things: First, he focused on his
child’s emotional needs and followed the advice of a local
University of Miami psychologist to “get Mike involved
in something where he could excel.” The struggles in
school were demolishing Mike’s self-esteem. So Pete
turned to waterskiing and spent a lot of time working at
it with Mike. Mike became a star. He began winning ski
competitions, sometimes against adults, and amassing
trophies. Soon, Mike’s personality had made a dramatic
turnaround and his spirit was rebounding. Second, Pete
and Pat investigated school options for Mike’s dyslexia and
enrolled him in the McGlannan School in Kendall, a school
that provides one-on-one learning for children with
dyslexia and other learning problems, but charges tuition
rivaling a private university. For Mike, there really was no
other option.
Although it became hard to make new friends once
he became a federal judge, and his work hours were
vastly different from the colleagues he had left behind,
he had good friends on the trial bench: James Lawrence
King had been appointed by Nixon and taken the bench
at the same time as Judge Fay. They shared a bond and
are still close friends today. Judge Shelby Highsmith
was his brother-in-law, having married one of the other
Zimmerman sisters. Despite the economic issues, it was a
good time.
Judge Fay was nominated to the Fifth Circuit Court of
Appeals by President Gerald Ford in 1976. Joining the
appellate court gave him even more time at home –
reading briefs could be done in the early morning or late
at night. Going back to his paper route and military days,
he always has been an early riser. Judge Fay began going
to his son’s high school and helping with the basketball
team every afternoon. In 1981, when the Fifth and
Eleventh Circuits split, he went with the Eleventh Circuit
because he lived in Miami, though he could have chosen
to stay with the Fifth. Despite missing the great minds
Pete believed going back into private practice to afford
the tuition was the solution; “Pat said, ‘No,’ ” he recalled,
“and she was right.” They tightened their belts and made
it work. Then, when Mike had progressed enough that he
was ready for the next step, Frances McGlannan suggested
Westminster Christian School, where he could continue to
get more of the one-on-one instruction he needed. Public
school still was no option for his disability. Westminster
Christian, however, required all children in the family to
attend. So the Fays were faced with paying college-level
21
Judge Peter T. Fay, continued
In 2008, his alma mater, the University of Florida College
of Law, established the Peter T. Fay Jurist-In-Residence
Program to bring judges to the UF law campus for
several days each year to interact with law students. The
jurists speak in classes and get their own office, with an
open-door policy where they welcome students to drop
in and talk with them freely in groups or one-on-one.
Chief Justice John Roberts was on hand to introduce
the program, and Judge Fay served as the school’s first
jurist-in-residence later that year. In classic Fay style and
humility, he remarked, “This honor is the highlight of
my 38 years as a federal judge. I’m very honored, very
embarrassed and very humbled.” That same year, the
Eleventh Judicial Circuit Historical Society recognized him
as a “Legal Legend.” In October 2015, Judge Fay received
the Chief Justice Earl Warren Award, which is presented
to a sitting jurist for lifetime achievement in defining
character, integrity and professionalism.
and huge personalities he had worked with on the Fifth
Circuit, he again chose proximity and home life. Typically
he would travel one week per month for sittings across
the circuit, and the rest of the time he was home in Miami,
reading briefs, writing opinions and enjoying his family.
Later, when Judge Fay took senior status in January
1994, he could have retired with his full pension and
continued to receive his annual salary (without the pay
raises that never came anyway), while going into private
practice and finally earning the significant income he had
forgone over the past 25 years. “Pat said, ‘No.’” Now that
the kids were all out of college, the house was paid for and
they had no other pressing financial needs, Pat designated
these years for travel and time with her husband. “And she
was right.” So he has stayed.
Their three beloved children have all grown up to do
well and make their parents very proud. Mike, once a
struggling student dangerously on the edge, was just
recognized as one of the top 10 commercial real estate
brokers in the country (No. 8 to be exact). Billy is the
manager of insurance for Royal Caribbean Cruise Line.
Darcy is the assistant superintendent for the North
Carolina Prison for Women. The three children have now
given them seven beloved grandchildren as well.
Judge Fay is all those things. The life events and
connections that in fine detail and sharp focus seem to
be the work of a very creative fiction writer, when looked
at in broad stroke and soft focus reveal themselves to be
the basic building blocks of many good men and lives
well-lived: optimism, strength in adversity, friendship,
loyalty, discipline through athletics, patriotic service to
country, valuing education, strong work ethic, love of
family, and gratitude. Looked at this way, his story is not all
that different from many others. But a young boy living in
poverty who rode on the heads of elephants, waterskied
barefoot for cheering fans, taught a future president of the
United States of America to water ski, and helped create
an NFL legend is a story as original and fantastic as they
come.
Judge Fay has earned a number of honors and been
recognized for his contributions both to the legal
profession and the community throughout the years.
The American Inns of Court, a group dedicated to
fostering excellence in professionalism, ethics, civility and
legal skills, named its chapter at St. Thomas University
School of Law after him. In December 1983, he became
a Knight of Saint Gregory through Pope John Paul II,
who simultaneously awarded Pat Fay the Pro Ecclesia et
Pontifices Medal.
The Hon. Peter Thorp Fay casts the long shadow of a
great man, one who has been places and done things
no one else has done, or could do, because the historical
events and cosmic alignment that allowed his life to
unfold in the manner it did could not conceivably occur
twice. Yet despite these extraordinary experiences and
meaningful achievements, in person the long shadow
immediately dissipates under the warm, soft glow Pete Fay
emits. He smiles easily, laughs playfully and compliments
freely. The intimidating credentials give way to the
mesmerizing charisma, kindness and grace. He becomes,
as he most often introduces himself, just “Pete.”
In 1989, Jeb Bush wrote to his father, then the
president of the United States, recommending Judge
Fay be appointed should a vacancy on the United States
Supreme Court arise during the Bush presidency. Instead,
the senior Bush appointed David Souter and Clarence
Thomas. Judge Fay was long rumored to be on the short
lists for appointment to the United States Supreme
Court by several presidents. In 1994, Chief Justice William
Rehnquist appointed him to a special three-judge panel,
officially titled the Division for the Purpose of Appointing
Independent Counsels, that was charged with appointing
special prosecutors to investigate executive branch
criminal activity. Along with Judge David Sentelle of the
D.C. Circuit, Judge Fay served continuously for 12 years,
receiving new appointments from the chief justice every
two years, until the statute authorizing the panel expired
in 2006. The third judge on the panel varied throughout
the 12 years.
For those who have spent much time around Pete Fay,
the one word that comes most readily to mind, because
he uses it so frequently with an easy smile and a playful
tone, is “marvelous.” And it is a fitting word indeed for this
marvelous man who has led a marvelous – in every sense
of the word – life. “You almost wish you could live three
or four lives,” he says, not exactly wistfully, but as though
the thought has played in his mind more than a few
22
Judge Peter T. Fay, continued
times through the years. It is clear that, as Judge Fay looks
gratefully and appreciatively over the marvelous life he
has led and the blessings he has had, he also looks down
the path not taken, and he wonders. As do we. How far
might pro-plaintiff case law have advanced if that brilliant
mind and charisma had been allowed to advocate? What
kind of material comforts and extravagances might he
have given his beautiful wife, and not fretted in providing
for his beloved children, had he stayed in private practice?
But, instead, the federal bench got the brilliant mind to
fairly and evenly apply the law to both parties (except for
the Feres doctrine, which he still hopes to one day undo),
and Claudia Pat Zimmerman Fay got to share her life with
a man who adores her, and whose work allowed him to
live the family life they valued. His children got to know
their dad and be influenced by his presence. He got to
be there. Very few of the powerhouse trial attorneys he
trained with before joining the bench got to have that
kind of life. And, as he looks back, Judge Fay does make it
clear, with his easy smile and playful tone, that it has been
a marvelous life.
Deborah J. Gander clerked for Judge Fay and is now a
partner with the Coral Gables firm of Colson Hicks Eidson.
Dean C. Colson clerked for Judge Fay and also for U.S.
Supreme Court Justice William H. Rehnquist. He is now
managing partner with the Coral Gables firm of Colson Hicks
Eidson.
Author’s note: The author wishes to thank George Ondricek
of Litigation Arts in Miami for his work on the photo collage
and Javier Yanes of Yanes Security & Investigative Services Inc.
for videotaping Judge Fay’s oral history interview. The DVDs
of the interview have been donated to the historical society
for preservation.
Judge Frank Johnson, from page 4
I think he was just using this quiet time to state the facts and
organize his thoughts.
After a day’s fishing, there was a routine of sorts. I would gut and
ice down the catch and then prepare a Coleman-stove supper. After
supper, we would “Salute the Constitution” a time or four during
and after the often-glorious Chandeleur Sound sunset. After dark,
there was only one available entertainment. Because we were
all 30 miles or more from the mainland, seamen on shrimp boats
and Sieracki seamen on oil rigs communicated to their homes,
mainly in the river parishes of Louisiana, by VHF radio-telephone
hookup through the Gulfport Marine Operator. The trick about
such calls was that both sides of the conversation could be heard
over ordinary marine radios (although there is probably something
within the 4,000-plus federal offenses prohibiting listening to the
calls). Because our trips generally involved a Friday and/or Saturday
night, many calls were from lonely shrimpers/rig hands to their
sweeties in Thibodaux or Belle Chasse or like places. The Judge
would listen to the conversations, particularly the land-based
women’s pledges of love and fidelity, and rate the credibility of the
pledges. The specific question to be answered was this: After she
hung up, would she be stepping out to the local honky-tonk with
another fellow?
The Judge also called home himself to speak to Ruth Johnson
at least once during each trip. He and she were both aware of the
universal audience, as I had alerted him, and he was himself an
eavesdropper. On one trip, he was bothered by a common malady
often treated by a preparation whose name includes a capital letter
from near the end of the first third of the alphabet. He told me after
23
Judge Johnson with a stringer of redfish and speckled trout
in the anchorage at Chandeleur. (Courtesy of Pat Sims)
Judge Frank Johnson, continued
hoc additions on given trips. The regulars, roughly, were
Curtis, Judge Johnson, Montgomery lawyers Bobby Black
and Harry Cole, Curtis’ friend and Montgomery uniforms
vendor Earl Moorer, and myself and Buster Asmus from
Mobile. Occasional participants were Judge Joel Dubina
and Alabama Circuit Judge Joe Phelps from Montgomery
and sometimes Judge Robert Varner of the Middle District
and Montgomery lawyer Vaughn Hill Robinson. Judge
Tjoflat went occasionally, as did some of Judge Johnson’s
former clerks, such as Peter Canfield and Eddie Ashworth.
Jimmy Johnson was frequently in, but occasionally not
because of fraternal disputes.
supper that he wanted to call home, so I went through
the usual routine of acquiring the marine operator and
assigning a name to my boat for that purpose.
The conversation thereafter went (exactly I believe) like
this:
Ruth J: Hello.
Operator: This is the Gulfport Marine Operator. Will you
accept a collect call from Frank on the Karin E?
Ruth J: Yes I will.
FMJ: Hello, Ruth.
Ruth J: How’s your rear end?
On one Silver King trip, I think on the slow trip
southwest from Bayou La Batre, the four present or
former trial judges aboard held a “best courtroom story”
contest with the rest of us as “contest judges.” The three
Alabamians (Frank Johnson, Joel Dubina and Joe Phelps)
each gave their reports of trials, featuring notorious
parties and famous lawyers posturing in front of packed
courtrooms. The contest judges were impressed by all
three. Then the Florida entry, Judge Tjoflat, told his story
of a radically quieter setting from his days as a state circuit
judge. This was a very simple divorce case involving a Gulf
shrimper named Joey and his wife, Mary. There were no
spectators in the courtroom, only the parties, their lawyers
and the court personnel. It developed that Mary had filed
for the divorce based on Joey’s infidelity. It seemed to
the judge that neither party really wanted the divorce,
but Joey’s infidelity was repeated. As Mary testified on
the stand, her lawyer, after getting her to describe Joey’s
misconduct, turned to Rule 801(d)(2)(A) evidence:
FMJ: Shush, Ruth. I told you everybody could hear these
calls.
Ruth J: So how’s your rear end?
FMJ: Well, alright, I reckon.
The rest of the conversation was routine discussion
about the dogs, the fishing, the weather, etc.
Going alone to Chandeleur with Judge Johnson
changed when he was demoted to the Court of Appeals.
My good friend, Mobile lawyer Buster Asmus, had a
nearly identical boat, and the Judge suggested having his
compadre judge, Chief Judge Gerald Tjoflat, come along
with Buster. Several of these great trips were made.
Buster is a great storyteller in his own right, and usually
does so histrionically. One memorable night, the four of
us were sitting around in my boat in the dark after supper.
Judge Johnson kept encouraging Buster to “tell Jerry the
one about …” Buster’s drink cup was sitting by his left
side, and each time Buster moved his arms as part of a
story, Judge Johnson would fill the cup with Jack Daniel’s.
This went on for maybe an hour. The other two then
somehow safely navigated the 100 feet or so back to their
boat and all was very still until about 2 a.m., when the
still Chandeleur night was broken by the thunderous roar
of Buster heaving over the side, in the style of any true
drunken sailor. He recalls the details of that event to this
day.
Lawyer: Mary, did you ever ask Joey to stay away from
that woman?
Mary:Yes I did.
Lawyer: What did he say?
Mary:He said he had tried but he couldn’t.
Lawyer: Did he say why he couldn’t?
Mary: Yes he did.
Lawyer: Tell the judge the reason he gave for not being
able to stay away from her.
The Silver King III
Judge Tjoflat then told the contest judges (and his
contest opponents) Mary’s report of Joey’s Triple XXX
explanation. He recalled that, upon hearing it, he had
turned to the defendant’s table where he saw Joey
looking at his lawyer and nodding firmly in the affirmative.
The panel instantly and unanimously declared Judge
Tjoflat the winner, and he was frequently called upon to
repeat his “simple divorce” story for anyone who had not
been present at the original telling.
Curtis grew restive at hearing the Judge’s Chandeleur
fishing stories and wanted to get back into the act. He
found his avenue in the Silver King III, a lovely old party
boat moored hard by the bridge at Bayou La Batre, Ala.
She had about eight 14-foot wooden skiffs, powered by
15-horsepower engines, as well as adequate below- and
above-deck sleeping quarters for 10 or 12 fishermen.
Curtis started arranging trips on the Silver King that
included a fairly stable core group (some would say
motley crew) from Montgomery and Mobile and then ad
When Curtis Caver arranged the trips on the Silver
King, he always ensured that there were an odd number
24
Judge Frank Johnson, continued
No one paid much heed to the fact that their departing
course was southwest, heading, perhaps, for Freemason
Island and, if not there, then for Brownsville, Texas. In any
event, Their Honors did not show back up on time for
lunch. After waiting a reasonable time, search teams were
sent out in all directions, including Buster Asmus and I
who were dispatched to the north. After an appropriate
period of futile searching, we decided that the time
would best be spent by keeping a careful lookout while
fishing, which we did. Late in the day, we spotted a small
boat, which might have been a Silver King skiff headed in
our direction, but with an unfortunate shallow mud flat
intervening. When the boat hit the bar, we realized it was
the lost party and we, reluctantly, stopped fishing.
When we arrived near the grounded skiff, we heard the
report that, the Constitution having been duly saluted,
Chandeleur Island had disappeared, and the skiff’s crew
had searched for it by running in several directions
fruitlessly, but then had spotted a shrimp boat anchored
in the sound. When they approached the boat with the
simple question, “Which way to Chandeleur Island?” the
lone crewman pointed his Glock and told them to get the
hell away.
Judges Frank Johnson and Gerald Tjoflat relax after supper in the
author’s boat. (Courtesy of Pat Sims)
of fishermen. He did this because the actual fishing was
done from skiffs that carried two people; and if there were
an odd number, the odd man would go with the Silver
King’s master, Captain Andy, who, one would assume,
really knew where the fish were. Curtis always fished
with Captain Andy. The Silver King protocol involved a
morning session, a return to the boat for lunch, and then
an afternoon session. Explaining one noteworthy session
requires a preliminary exploration of the Chandeleur
island landscape.
At that point, the crew resorted to basic Eagle Scout
training. They knew that the Silver King lay west of the
Island, so they determined the sun position (now fairly
low in the sky) and decided to head directly away from
the setting sun, and ran aground by Buster and me. It was
immediately clear that one of them would have to get out
and drag the skiff across the flat, and they commenced
to odd-man over (avoiding) the task. Judge Johnson
immediately played his trump card — his “disabling”
artificial artery: “Old codger, I reckon Dr. Debakey would
say I just can’t do that, so it’s up to you to get us over to
that other boat.” Judge Tjoflat decided to avoid the ADA
The island(s) runs north to south in a thin line for 30
miles or more. In 1969, the eye of the Great Hurricane
Camille tracked south to north, parallel to Chandeleur
about 20 miles west of the island, wreaking havoc on it.
My fishing buddy (now professor of surgery at the Mayo
Clinic in Rochester, Minn.) Mike Farnell and I went to
Chandeleur three days after Camille passed and found
nothing there higher than two feet above high tide level.
In the 15 to 20 years between Camille and the ventures
Curtis Caver arranged on the Silver King, there had been
some gradual regrowth of the island, but still the only
elevation was some minor dunes on the Gulf side, perhaps
reaching four feet. Particularly in the bright sun of a still
October afternoon, if one went significantly more than a
mile west of the island into Chandeleur Sound and looked
back to the east, the island had vanished in the haze.
On one such October day after breakfast, Judges Tjoflat
and Johnson boarded a skiff from the Silver King. One who
viewed the skiff from a few fathoms away might observe
that she sat quite low in the water. The explanation was
that Their Honors’ “tackle boxes” were loaded to the
gills with miniatures of fine spirits needed to Salute the
Constitution, early and often.
Judge Johnson conducts an inspection of the Asmus/Tjoflat boat.
(Courtesy of Pat Sims)
25
Judge Frank Johnson, continued
claim, grabbed the line, and pulled the skiff across, while
his passenger fished another miniature out of his box.
trip was a waste. The bay waters were quite rough, our ace
guide’s baitwell water system failed and the live shrimp
died, and we caught almost nothing. The only thing
approaching a “highlight” was a drive down LA-1 in the RV
to the legendary town of Grand Isle for dinner one night.
Otherwise, Timbalier Bay created no good memories.
Sidebar — Lures
There’s a well-known adage that is absolutely true:
Fishing lures are designed to catch fishermen, not fish.
Judge Johnson was a lure changer. Each day, he put
two big tackle boxes in the skiff and would change lures
quickly if one was not working. At Chandeleur, I fished
essentially one lure (actually two versions of the same
lure), the Tony Accetta spoon, silver for the flats and gold
(for redfish) in the bayous. The Judge finally came around
to the Tony. When he went on the Eleventh Circuit and
had a sitting in Miami, he drove the 70-plus miles to
Riviera Beach to the Accetta headquarters and bought a
case of each.
The Big Bend
After a number of trips on the Silver King, and this
detour to Lafourche Parish, Curtis heard that “they”
were really catching them in the lower part of Florida’s
Big Bend. One trip to Horseshoe Beach was not that
productive. Then the spot moved, and remained, in
Suwannee, which is reached by travelling down U.S. 98 to
Old Town, which some might call the end of civilization,
turning right and heading southwest for almost 30 miles
to the Suwannee River delta, a truly beautiful area, and
the village of Suwannee. We stayed at Bill’s Fish Camp
(whose proprietor, Bobby Black was always quick to note,
was named Ray). There were usually nine of us who went
out, three to a boat, with three local guides, fishing in the
inside bayous of the Suwannee delta or the nearly endless
grass flats in the Gulf.
Before one Silver King trip, Judge Bob Varner heard
that “they” were really catching them down there on
something called the “Boy Howdy.” He went to all the
tackle shops in Central and East Alabama (and probably
Columbus) and bought them out. He showed up in Bayou
La Batre with six or eight for each of us at his cost, which
back then was maybe $1.50 each. They didn’t produce
anything. But Jimmy Johnson figured out a way to rig
them up backward and offered his supply of the Latest
Thing, the new “Howdy Boy” lure, likewise at cost – $8.
When challenged on the differential, Jimmy said with a
stone face that the cost was $1.50 in hardware and $6.50 in
“engineering.”
The Suwannee group was a varying subset of the Silver
King group, with one fairly regular addition. We were
pleased to be joined by Judge Lanier Anderson, who was
very low key about the Suwannee fishing. When it came
time to place trivial bets on the day’s catch, he would
say things like, “Macon is over 150 miles from the Gulf”
and would otherwise soft-pedal his fishing skills, only to
mysteriously weigh in the winner.
Lafourche Parish
One feature of these trips was Curtis Caver’s gourmet
lunches. He prepared each morning two brown bag
selections. Each had a wedge of hoop cheese and packs
of cheese crackers and saltines. The distinction was the
separate entree selections: Vienna sausage in one bag and
Beenie Weenies in the other. Bill’s was a fairly Spartan place;
cinderblock buildings, simple motel bedroom furniture and
a chair or two, very small shower towels, etc. It was at Bill’s
that we had our only celebrity fisherman guest, Pulitzer
Prize-winning journalist Howell Raines. Among Howell’s
writings is a book on the niceties of fly fishing – there were
no niceties about the fishing with this crowd.
Curtis Caver always had the latest information on Gulf
coast fishing hotspots. One day, I got a call from Curtis
with this intelligence and directive: “They” were killing
them in Timbalier Bay, Louisiana. He had the guides and
boats lined up, but Judge Johnson was concerned about
the long car ride from Montgomery to Golden Meadow.
The plan was for me to go to the local U-Haul outlet and
rent the U-Haul version of a 35-foot Winnebago. The gang
would assemble at my place in Mobile, and I would drive
the RV to Golden Meadow (actually to Leeville, a few miles
farther south down Bayou Lafourche). We made the trip
from Mobile to Leeville without incident, except for this;
the width of the RV was about 8.5 feet, and the lane width
of the Huey Long Bridge over the Mississippi River west
of New Orleans was then nine feet. I made the passage at
about 10 mph with the entry step scraping the curb the
entire way. Nobody but Buster noticed the sparks flying.
My last trip with the Judge was in the fall, probably of
1994, to Suwannee. At that time in Suwannee, there were
two places to go for the evening meal. The first was a
basic roadhouse, shirts and shoes optional. The second
was a somewhat more refined place, where both the
fishing crowd and the local residents gathered. Curtis
directed us there for the last night’s meal. The group of
us sat at a library-type table, with Judge Tjoflat sitting at
the head. Judge Johnson sat to his right, and I was a place
When we got to Beaudroux’s Waterfront Motel in
Leeville, there was only one room reserved for us. Through
some process, the beds were assigned, and Judge Dubina
and I were the last two and were relegated to the RV. This
26
Judge Frank Johnson, continued
Reporter’s Oath
or two down on the left. By then the Judge’s mind was
beginning to fade, and as I looked across the table I saw a
bedraggled, tired old man. Perhaps he saw me staring at
him, because, inexplicably, he winked at me and turned
to the head of the table. “Jerry,” he said quietly, “tell ’em
that one about that shrimper and his wife and that divorce
case.” He turned to his right, to all at the table (who had
heard the story before), and said, “You all listen to this, it’s
a great story.”
Those who had the privilege of knowing Judge Frank
Johnson all can testify that he loved to tell a story. In
the middle of Frank Sikora’s book “The Judge,” there is a
picture of the Judge proudly displaying the front half of a
pretty nice redfish. He particularly loved telling the story
of the events leading to that picture.
We were drifting over the grass flats at Chandeleur in
a 12-foot aluminum skiff when he caught the redfish. As
usual, we put it on a short stringer behind the skiff so that
it would be fresh when we returned to the big boat for its
rendering. While we continued drift fishing, a fairly healthy
shark, maybe four or five feet long, came up suddenly
behind us and neatly bit the redfish in half. We did not
have a camera on the skiff, so when we returned to the big
boat, the Judge posed for that picture.
Judge Tjoflat told the story, including its Triple-X
punchline. At that point, Judge Johnson leaned to his left
and, without words but with facial and body language,
communicated that he had not heard the punchline.
When I saw that, I knew exactly what the wink had meant.
It meant “watch this.” And I was certainly watching. After
Judge Johnson leaned in, Judge Tjoflat, who speaks
in a stentorian voice anyway, repeated the punchline
in a louder voice. Judge Johnson then, appearing a bit
bewildered, looked at the Chief Judge and said, “What’s
that you say?” With that, the Chief Judge of the United
States Court of Appeals bellowed the Triple-X punchline
of the shrimper divorce case in a voice that could be heard
everywhere in the southwest quarter of Dixie County.
Within the restaurant, one could hear forks dropping,
chairs moving back and patrons gasping. I do not recall
actually seeing Judge Johnson slapping his thigh, but I
am supremely confident that deep in his old soul he was
delighted at pulling a very good one over on his boss.
The Judge loved to recount most of the foregoing
details to his law clerks and others. The variable in the
story was the shark’s body length. This ascended over
time to exceed that of his big, black Lincoln automobile,
and finally reached 20 feet or so. I was sitting about two
yards from the actual shark attack, and I would discount
the 20 feet by 75 percent. However, his tale provides a
good standard for required narrative veracity, and with
that as the measure, I declare that the foregoing is true
and correct.
SHARE YOUR NEWS!
Submit items for publication in the 11th Circuit Historical News to Wanda Lamar, executive
director of the Society. (email: wanda_lamar @ca11.uscourts.gov). Historical articles on
the federal courts and judges within the Eleventh Circuit will be considered, as well as
investitures, courthouse dedications, portrait presentations, memorial ceremonies and
oral history programs.
27
Discussing the BCCI trial:
Middle District of Florida’s ‘Fifty Years of
Justice’ book celebration
By Larry Dougherty
U.S. Magistrate
Judge Anthony E.
Porcelli welcomed the
attendees on behalf of
the History Committee.
Judge Porcelli
recounted how the
BCCI panel discussion
fit into the series of
events and exhibits
celebrating the history
of the Middle District.
One such notable event
was the two-day, 50th
anniversary celebration
in October 2012,
featuring presentations
An audience whose members included former Florida Bar President Gwynne Young by judges, lawyers and
and former Second District Court of Appeal Judge E.J. Salcines, center, enjoyed the law students. Another
At the September
presentation. (Photos courtesy of the Middle District of Florida Bench Bar Fund was the History
event, the History
Committee’s work
Committee's History, Education, and Public Outreach Subcommittee)
Committee chose
installing exhibits in
one trial from among the many significant and exciting
the lobbies and public spaces of the courthouses in the
trials and cases examined in Professor Denham’s book:
district.
the BCCI money-laundering case. The choice was timely
Judge Porcelli then introduced Professor Denham, a
as well as historic. Not only did the BCCI case involve one
history professor and director of the Lawton M. Chiles
of the largest money-laundering prosecutions ever, but
Jr. Center for Florida History at Florida Southern College
also the events underlying the case are the subject of a
in Lakeland. Professor Denham described the formation
forthcoming major motion picture movie, “The Infiltrator,”
of the Middle District from territory formerly part of the
due for release in 2016.
Northern and Southern Districts of Florida. In expounding
On Sept. 22, 2015,
the Middle District
of Florida Bench Bar
Fund Committee’s
History, Education,
and Public Outreach
Subcommittee held
an event to highlight
the June publication
of Professor James
M. Denham’s book
“Fifty Years of Justice.”
The book draws on
extensive research
and oral histories to
recount the first 50
years of the Middle
District of Florida.
A panel of real-life participants assembled to discuss the
trial that took place over six months in 1990: Senior U.S.
District Judge Wm. Terrell Hodges, who presided; Robert
Mazur, the undercover U.S. Customs agent at the heart
of the operation and the government’s star witness; and
Tampa trial lawyer Bennie Lazzara, Jr., who represented
one of the defendants.
on the history of the court, Professor Denham showed a
number of photographs of judges of the court.
Judge Porcelli then turned the program over to Larry
Dougherty, a bar representative on the History Committee
who served as moderator for the panel discussion.
Dougherty suggested to the attendees that the facts
of the BCCI trial would overshadow any fictionalized
serial shown on HBO or Netflix. Dougherty provided the
audience with short biographies of Mazur, Lazzara and
Judge Hodges. Dougherty then introduced Mazur, the
former Customs agent, to provide an overview of the case.
Adding further to the event was its setting — the old
federal courthouse in Tampa, which has been remodeled
as Le Méridien Tampa, a boutique hotel. The participants
and guests met in the Courthouse Ballroom, which last
served as the courtroom for Senior U.S. District Judge
William J. Castagna. The audience of approximately 150,
comprising many judges and lawyers, enjoyed the panel
discussion and a lunch sponsored by the lawyers of the
Bar of the Court through its Bench Bar Fund. No public
funds were used in the event.
Mazur, who had a highly decorated 27-year career as a
federal agent, began his overview by playing a four-minute
NBC News story on the BCCI case, available on YouTube
at https://www.youtube.com/watch?v=Bx1u-TP3Ouc. In
the segment, NBC anchor Tom Brokaw described how the
seventh-largest privately held financial institution in the
28
Book Celebration, continued
Senior U.S. District Judge Wm. Terrell Hodges, left, listens as one of the BCCI defense attorneys, Tampa trial lawyer Bennie Lazzara, Jr.,
makes a point.
world, the Bank of Credit and Commerce International
(BCCI), was laundering drug money in transactions linked
to former Panamanian Gen. Manuel Noriega. Numerous
bank officers and the bank itself were indicted. Suspects
linked to transactions in Europe and South America were
lured to a mass arrest in Tampa on the pretext that Mazur,
known undercover by the name “Bob Musella,” was getting
married – to a woman who was, in fact, also an undercover
Customs agent.
and Paris, microphones hidden under Mazur’s designer
suits and in his Renwick briefcase were picking up
conversations captured on tape.
The panel discussion began with the first question
going to Judge Hodges. Judge Hodges recounted how, in
addition to the normal demands of a federal criminal trial,
the BCCI case imposed unique challenges because of its
focus on high-rolling bank and drug crime. Judge Hodges
described how a juror copied phone numbers from an
address book in evidence and actually placed telephone
calls to the number attributed to a drug kingpin in
Colombia. The person who answered told the juror never
to call back. After inquiry, Judge Hodges dismissed that
juror from the panel.
Mazur then gave the audience more details of the
operation. Besides seizing millions of dollars, the agents
also took control of more than a ton of cocaine located
during the operation, Mazur said. He described how
teams of Customs agents helped him prepare for more
than a year for his undercover role, by fleshing out his
false identity. Mazur also received psychological training
to prepare himself for the disorienting and nerve-racking
challenges of playing a criminal and associating with
corrupt bankers and dangerous drug kingpins. As Mazur
wined and dined the suspects in Miami, Washington
Judge Hodges also complimented Mazur’s testimony at
trial, noting that the agent had mastered the hundreds of
hours of recorded conversations and testified for 11 weeks
with confidence and precision. Judge Hodges presided
over the trial in a first-floor courtroom that is now the
location of Le Méridien’s restaurant and café.
29
Book Celebration, continued
Lazzara represented defendant Akbar Bilgrami. He
agreed that the defense had a difficult task at trial. The fact
that other banks might have been seeking the same type
of business was not a sufficient defense of BCCI and its
officers. Lazzara noted that his client and other defendants
had never been charged with a crime before. During the
trial, several of the defendants took apartments near
the courthouse for themselves and their families, and
Lazzara recalled visiting them in the morning before
court. Lazzara recalled attacking Mazur’s testimony on
cross-examination, yet also knowing as the questioning
proceeded that, to borrow boxing terminology, his side
was “behind on points.”
Mazur noted that the demands of the case did not
lessen once arrests were made. To prepare himself for
trial, he spent weeks in a hotel room reviewing and
transcribing the audiotapes until he was well-versed in
all of them. Mazur also described the burden of the case
on his family — both in terms of his long absences while
undercover, and also the stress of keeping his family
safe once it became known that a Colombian drug lord
had put a half-million-dollar price on his head. Mazur
recounted spotting a suspicious truck parked near his
residence one night. He hid his family and crept up on
the truck with a weapon to surprise the occupant of the
truck. Only then did Mazur learn that the man was there
for an entirely innocent reason — monitoring alligator
movement as part of a conservation project.
Books by Professor James M. Denham were available at the event.
Mazur noted that actor Bryan Cranston, the star of the
hit AMC series “Breaking Bad,” will portray him in “The
Infiltrator.” The movie will also star John Leguizamo, Diane
Kruger and Benjamin Bratt.
From left, Senior U.S. District Judge Wm. Terrell Hodges, Tampa
lawyer Pat Dekle and Professor James M. Denham talk before the
panel begins.
Judge Porcelli brought the event to a close, thanking
the panel members for their contributions and suggesting
that audience members learn more about the many
historic trials and cases in the Middle District by reviewing
“Fifty Years of Justice” for themselves.
Professor Denham’s book is available on Amazon.com
at http://www.amazon.com/Fifty-Years-Justice-DistrictQuincentennial/dp/0813060494 and also from the University
Press of Florida at http://upf.com/book.asp?id=DENHA001.
Editor’s note: Larry Dougherty is a bar representative on
the Middle District of Florida Bench Bar Fund Committee's
History, Education, and Public Outreach Subcommittee. He is
an associate with the Tampa office of the Foley & Lardner law
firm, practicing complex civil litigation focused on white collar
and securities matters, intellectual property and appeals.
Author’s note: The 50th anniversary celebration was last
discussed at length in the Winter 2013, Vol. X, No. 1 issue of
the 11th Circuit Historical News. The old courthouse-turnedboutique hotel was profiled in the Summer 2014, Vol. XI, No. 2
issue of the 11th Circuit Historical News.
U.S. Magistrate Judge Anthony E. Porcelli, one of the organizers of
the BCCI panel discussion, welcomed the audience.
30
U.S. District Judge Harvey E. Schlesinger
honored by FBA-Jacksonville Chapter
By Laura Boeckman
On Aug. 20, 2015, the Jacksonville Chapter of the
Federal Bar Association hosted a special luncheon at the
Bryan Simpson Federal Courthouse in Jacksonville to
honor Judge Harvey Schlesinger on the occasion of his
40th anniversary on the federal bench and 50 years as a
member of the Florida Bar.
her way to her job interview with the Judge, he would not
let her reschedule and instead told her to just walk into his
office backward if she was that worried about the coffee
stains. So Rosemary did just that, and the Judge must have
known he had a keeper when he realized that her sense of
humor matched his own.
Judge Schlesinger’s wife, Lois, along with his three
daughters, their husbands, three of his grandchildren and
many of his former law clerks from near and far joined the
local bench and bar in celebrating Judge Schlesinger’s
many contributions to the court, the community and the
lives of those privileged to work with him. His colleagues
and former clerks shared stories, both touching and
humorous, about their time spent working with him on
the bench.
Not only the people who worked closely with Judge
Schlesinger recognized his contributions; the legal
profession and community also wanted to acknowledge
him on his special day. Judge Schlesinger received
compliments from his alma mater, The Citadel. Assistant
U.S. Attorney Mac Heavener, another Citadel alumnus,
read a letter recognizing the Judge’s “example to cadets
and graduates of what it means to be a principled leader”
and for living a life that “reflects The Citadel’s Core Values
of Honor, Duty, and Respect.” A great time was had by all.
Florida Second Judicial Circuit Judge Martin Fitzpatrick
shared the story and a video clip of the Judge’s brief stint
as an actor. Judge Schlesinger played a judge in a TV show
called “The Hitman” and still occasionally receives royalties
from his acting career. Rosemary Cakmis, the Judge’s first
law clerk, emphasized how much a good sense of humor
is part of the Judge’s personality and life in chambers.
When Rosemary accidentally spilled coffee on her suit on
About the author: Laura Boeckman is a former law clerk
to Judge Schlesinger and the current president-elect of
the Jacksonville Chapter of the Federal Bar Association.
Boeckman served as program chair for the event honoring
Judge Schlesinger.
Judge Schlesinger and his wife, Lois, enjoy hearing the stories about his days on the bench as Judge Brian
Davis and Jane Lester look on.
31
Judge Schlesinger, continued
Judge Timothy Corrigan talks about how important
family is to Judge Schlesinger and how his family
would regularly visit him at the courthouse – including
the time his young granddaughter accidentally
walked into one of Judge Corrigan’s hearings.
Tanya Sharpe shares her insights into what the
Judge looked for in a new law clerk. Apparently,
winning on “The Price is Right” at least got you
an interview.
32
Judge Schlesinger, continued
33
Judge Schlesinger, continued
Laura Boeckman presents Judge
Schlesinger with a plaque recognizing
his service to the bench and bar.
Judge Schlesinger and his current and former law clerks, who now include two federal judges and a state court
judge.
Photos provided by Susanne R. Weisman, Esq.
34
The NCBJ meets in Miami Beach
By Judge Laurel Myerson Isicoff, U.S. Bankruptcy Court, Southern District of Florida
The National Conference of Bankruptcy Judges is
a voluntary association of bankruptcy judges of the
United States. The conference has just celebrated
its 89th year. One of the many purposes of the NCBJ
is to “provide continuing legal education to judges,
lawyers and other involved professionals.” To that
end, each year, the members of the NCBJ have
included an educational program as part of their
annual meeting. This annual meeting, also known
as the National Conference of Bankruptcy Judges,
is held over three days in a different city each year.
Everyone is invited to attend.
This year the NCBJ annual meeting was held at the
Fontainebleau Hotel on Miami Beach from Sept. 27
through 30. The education portion of the meeting
covered consumer and business law topics presented
by bankruptcy judges, pre-eminent law professors
and leaders in the insolvency world. A small sample
of the many presentations at the conference were
“Joint Defenses, Common Interest, Attorney-Client
and Co-Client Privileges: Why I Don’t Have to Answer
that Question,” “How to Win (or Lose) Bankruptcy
Auctions,” “Take my House – PLEASE! Getting Rid of
Encumbered Property in Consumer Cases” and “Show
Me the Money: Debtor’s Attorneys’ Fees in Consumer
Cases.”
Judge A. Jay Cristol accepts the 2015 Judge William L. Norton,
Jr. Judicial Excellence Award. (Photo courtesy of American
Bankruptcy Institute)
Reuters donates $10,000 jointly to the ABI and the
NCBJ to fund scholarships. The NCBJ uses its share
to subsidize the attendance of minority lawyers to
its annual meeting, through a scholarship program
named in honor of Judge Cornelius Blackshear.
Many local consumer and business practitioners
attended the annual meeting, and I think they will
all agree that it was a worthwhile conference. In all,
there were more than 1,700 registrants.
In addition to education sessions, there were
many networking events, and breakfasts and
luncheons with fascinating speakers, including the
American Bankruptcy Institute (ABI) luncheon on
Tuesday, where former FBI Director Louis Freeh
was interviewed by Professor Michelle Harner. You
can watch that interview on “Eye on Bankruptcy,”
a monthly podcast available at the ABI website:
www.abiworld.org. The highlight of that luncheon,
however, was when Judge A. Jay Cristol was awarded
the Judge William L. Norton, Jr. Judicial Excellence
Award, an annual award presented by the ABI and
Thompson Reuters to a bankruptcy judge, who,
based upon a career of lifetime achievement, has
distinguished himself or herself as an educator,
writer or scholar. For those of you who know Judge
Cristol, you know why he was a shoo-in. In honor of
the Norton Award recipient, each year Thompson
Next year’s annual meeting will be held Oct. 26-29
in San Francisco. If you would like to hear Judge Paul
W. Bonapfel from the Northern District of Georgia
singing about why you should go to the NCBJ in San
Francisco, go to the NCBJ website. Thankfully, Judge
Bonapfel has a very good voice; he apparently sings
in a barbershop quartet.
For more information about the NCBJ including
its mission statement and its annual meetings, visit
www.ncbj.org.
Editor’s note: Judge Laurel Myerson Isicoff is
secretary of the National Conference of Bankruptcy
Judges. Reprinted from the Bankruptcy Buzz (October
2015), a publication of the U.S. Bankruptcy Court for
the Southern District of Florida, with the author’s
permission.
35
Judicial heroes’ courthouses
named landmarks
By Charles W. Hall
The memories of three legendary federal judges,
who overcame deep-seated Southern resistance to end
segregation for millions of African-Americans, were
honored recently when the courthouses named after
them were declared national historic landmarks.
Judges Tuttle, Wisdom and Johnson, appointed in
the 1950s by President Eisenhower, all received the
Presidential Medal of Freedom before their deaths in the
1990s.
President Carter, honoring Tuttle in 1981, called him
“a true judicial hero,” adding, “With steadfast courage
and a deep love and understanding of the region, he has
helped to make the
constitutional principle
of equal protection a
reality of American life.”
The National Park Service granted landmark status
to the Elbert P. Tuttle U.S. Court of Appeals Building in
Atlanta; the John Minor
Wisdom U.S. Court of
Appeals Building in
New Orleans; and the
Frank M. Johnson, Jr.
Federal Building and
U.S. Courthouse in
Montgomery, Ala.
Honoring Wisdom in
1993, President Clinton
cited the “clarity and
reason” of his judicial
writing, adding, “Judge
Wisdom’s opinions
advanced civil rights and
economic justice.”
In a July 20 ceremony
in Montgomery,
National Park Service
Director Jerome
Jarvis cited the
Two years later, Clinton
judges’ roles in the
said
that Johnson, a
1955 Montgomery
U.S.
district
judge for
Bus Boycott, the
the
Middle
District
of
1961 Freedom Rides,
Alabama,
“changed
the
the 1965 Selma to
face
of
the
South.
…
Montgomery March,
He challenged America
and the desegregation
At the July 20 ceremony in Montgomery, are, from left: Myron H. Thompson,
of Southern schools
Senior U.S. District Judge; Jonathan B. Jarvis, NPS Director; Torre J. Jessup, to move closer to the
regional administrator for the General Services Administration Southeast ideals upon which it is
and universities. The
Sunbelt Region; and Chief Judge Ed Carnes, U.S. Court of Appeals for the founded.”
judges also played
Eleventh Circuit. (National Park Service photo provided by Administrative Office
leading roles in ending
Wisdom, Tuttle and
of the U.S. Courts.)
segregation of public
two other judges —
facilities and upholding
John Robert Brown and
voting rights for African-Americans.
Richard T. Rives — were known as the “Fifth Circuit Four.”
Ironically, the term was coined as an insult by a fellow
“The courthouses in Alabama here, Georgia, and
Fifth Circuit judge, Benjamin Cameron, who accused
Louisiana were all involved in nation-changing events,”
his colleagues of panel-rigging in their zeal to overturn
Jarvis said. “These courts bore the burden of enforcing
segregation.
Brown v. Board of Education after the Supreme Court
rendered its historic decisions. … (They) dealt effectively
By the time Tuttle became the Fifth Circuit’s chief
with Southern massive resistance and obstructionism.”
judge in 1960, the promise of Brown v. Board had
stalled, as school systems across the South ignored the
Gerald B. Tjoflat, a U.S. Court of Appeals judge for the
Supreme Court’s mandate to integrate. The Fifth Circuit
Eleventh Circuit, who knew and served with all three
encompassed six Southern states — Texas, Louisiana,
judges, said they also were remarkable examples of
Mississippi, Alabama, Georgia and Florida — although the
courage, dignity and personal civility in the midst of a
last three became the Eleventh Circuit in 1981.
national storm.
When some federal judges bottled up desegregation
suits by declining to issue final rulings, the Fifth Circuit
cut through the delays — demanding immediate
desegregation without waiting for final lower-court
“It was a wrenching time. People were afraid of the
unknown,” Tjoflat recalled. “You had to have a good spine.
They just took the high road, and remained gracious all
the time.”
36
Judicial heroes, courthouses named landmarks
Despite their monumental impact, the judges were
described as personally modest.
action. Most dramatically, the Fifth Circuit ordered an
openly defiant governor to desegregate the University of
Mississippi — a decision that sparked rioting and required
troops to restore order.
In 1994, when the Court of Appeals in New Orleans
was named after Wisdom, U.S. District Judge Martin L.C.
Feldman said Wisdom’s “noble humility in the face of his
vast accomplishments seems an almost inhuman feat.” But
Wisdom also had a playful side, Feldman noted, including
a “fanatic” devotion to bridge.
Grudgingly, after multiple legal challenges, the
universities of Georgia, Alabama and Mississippi all
opened their doors to African-Americans, and public
school districts eventually did the same.
At the recent ceremony in Montgomery, Chief Judge
Ed Carnes, U.S. Court of Appeals for the Eleventh Circuit,
said the judges were just as unyielding with other
racial injustice. Wisdom, he noted, dismissed claims
that one city’s “colored only” signs were voluntary as “a
disingenuous quibble that must rest on the assumption
that federal judges are more naive than ordinary men.”
Carnes added, “The judges of the old Fifth were not naive.”
Throughout the civil rights turmoil, Judge Tjoflat said,
the judges remained steadfast in their belief that the law
would prevail. “Johnson had a great faith in the American
people. So did Tuttle, all these guys did. And in the end,
their rulings were completely accepted. People don’t even
talk about it today.”
Although a district judge, Johnson is perhaps best
remembered for crossing paths with the Rev. Martin
Luther King, Jr. In 1956, Johnson declared that segregated
buses in Montgomery were unconstitutional, ending
a yearlong boycott that began with Rosa Parks’ arrest.
In 1965, Johnson permitted marchers led by King to
complete their journey from Selma into Montgomery,
after police violence had thwarted them.
Tuttle told biographer Anne Emanuel that the civil
rights disputes were “the easiest cases I ever decided. The
constitutional rights were so compelling, and the wrongs
were so enormous.”
Publicly, the judges were matter-of-fact about their role
in defeating Jim Crow.
Johnson said in a 1991 interview that his rulings were
based on the Constitution, not any moral agenda. “As long
as you think you are doing what’s right, follow the law, and
the facts require it, you have to do it,” he said. “If you are
not willing to do it, get another job.”
“There sat in this courtroom one person who refused
to be a bystander, who spoke out against the status quo,”
said Senior U.S. District Judge Myron H. Thompson at the
July 20 ceremony. “Judge Frank Johnson, for me, stands as
a symbol that goodness … in the hands of even just one
person can overcome.”
Editor’s note: Reprinted with permission from the
Administrative Office of the U.S. Courts. Originally published
on Aug. 7, 2015.
About the author: Charles W. Hall is with the Public Affairs
Office of the Administrative Office of the U.S. Courts.
The Elbert P. Tuttle U.S.
Court of Appeals Building
in Atlanta. (Courtesy of
the Eleventh Circuit Court
of Appeals)
37
Judicial heroes, courthouses named landmarks
The John Minor Wisdom U.S.
Court of Appeals Building in
New Orleans. (Courtesy of the
Fifth Circuit Court of Appeals)
The Frank M. Johnson, Jr. Federal Building
and U.S. Courthouse in Montgomery.
(Courtesy of the U.S. District Court for the
Middle District of Alabama)
38
The Eleventh Circuit Historical Society
The Eleventh Circuit Historical Society is a private,
nonprofit organization incorporated in Georgia on Jan.
17, 1983. Although the Society has no legal connection
with the U.S. Court of Appeals for the Eleventh Circuit
or the federal government, its primary purpose is to
keep a history of the courts of the Eleventh Circuit as
institutions and of the judges who have served these
courts. In this regard, the judges in the old Fifth Circuit
from the states of Alabama, Florida and Georgia are
included in the Society’s area of interest.
our courts’ heritage through the collection of portraits,
photographs, oral histories, documents, news articles,
books, artifacts and personal memorabilia.
The Society’s permanent office is in the Elbert
Parr Tuttle U.S. Court of Appeals Building in Atlanta.
Its Board of Trustees is composed of lawyers and
legal scholars representing the historical interests of
Alabama, Florida and Georgia.
While the Society’s archival activities are partially
funded by grants and other special gifts, it primarily
depends on members for financial support. Take pride
in knowing that, through your membership, you are
helping to recapture memories of past events and
thus supplementing historical knowledge that will
enlighten and enrich present and future generations.
In essence, the Society’s accomplishments belong to
you.
In addition, the Society has a broader mission to
foster public appreciation of the federal court system
in the states encompassed by the Eleventh Circuit.
The formation of the Society came shortly after
the creation of the Circuit in 1981. This timing has
allowed the writing of history as current history, not as
research history. The Society is devoted to preserving
The Eleventh Circuit Historical Society
P.O. Box 1556 • Atlanta, Georgia 30301
(404) 335-6395
Name ________________________________________
I hereby apply for membership in the class checked
below and enclose my check for $___________
payable to the Eleventh Circuit Historical Society.
E-mail ________________________________________
Annual Membership
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Telephone ____________________________________
*KEYSTONE FIRMS: Please name five (5) members of your
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39
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The 11th Circuit Historical News is published periodically by the Historical Society of the United States
Courts in the Eleventh Circuit. To obtain a copy or for information about the Society, please contact:
Wanda W. Lamar, Executive Director
The Eleventh Circuit Historical Society
P.O. Box 1556, Atlanta, GA 30301
(404) 335-6395 • [email protected]
BOARD OF OFFICERS
Chief Judge Ed Carnes - Honorary Chairman
Leonard H. Gilbert - President
David A. Bagwell - Vice President, Alabama
Suzanne E. Gilbert - Vice President, Florida
George L. Murphy, Jr. - Vice President, Georgia
Halsey G. Knapp, Jr. - Secretary
John M. Tatum – Treasurer
This newsletter produced courtesy of The Florida Bar