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

his brother, Jim, was two-and-a-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

11th CircuitHistorical News

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

Volume XII, Number 3 http://sites.google.com/site/circuit11history Winter 2015

Historical News is produced as a courtesy by The Florida Bar.

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.

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 mid-1970s; 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)

See “Judge Peter Fay,” page 18

2

Judicial integrity – an international initiative

Message from the president

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 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.

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.

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 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

LEONARD H. GILBERT

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.

Leonard H. GilbertPresident

IN THIS ISSUE:

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

Judge Harvey E. Schlesinger honored ......................................... 31

The NCBJ meets in Miami Beach ....................................................35

Judicial heroes' courthouses named landmarks ..................... 36

3

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.

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 IOn 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.

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 over and, since the water was only about three feet deep, fetched the engine, brought it back and was able to get it running fairly quickly.

When I brought it back to the VIP, Jimmy reminded us of the verity that it is best to run a wet engine for a while to clear all the moisture out. So 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.

Fishing with Judge Frank JohnsonBy 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.

Frank Minis Johnson Jr. was a

judge on the U.S. Court

of Appeals for the Eleventh

Circuit until his death in 1999.

He also served as a judge on

the U.S. Court of Appeals for

the Fifth Circuit and the U.S.

District Court, Middle District

of Alabama, where he was chief

judge from 1966-1979.

4

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.

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

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.

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.

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.

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)

See “Judge Frank Johnson,” page 23

Judge Frank Johnson, continued

5

The United States Court of Appeals for the Eleventh Circuit officially welcomed the Honorable Julie E. Carnes to its bench in an investiture ceremony at the Elbert P. Tuttle United States Courthouse in Atlanta on Monday, Feb. 23, 2015. Following the playing of a patriotic medley of songs by the Georgia State Brass Quartet, Chief Judge Ed Carnes (no relation) opened the session. He recognized each member of Judge Julie Carnes’ family, as well as former United States Sen. Saxby Chambliss, whom the chief judge thanked for his 20 years of service in the U.S. Senate and House of Representatives. James Hatten, clerk of the Northern District of Georgia, then led the group in the Pledge of Allegiance.

The first speaker was the Hon. Willis Whichard of Chapel Hill, N.C. The only person in the history of North Carolina to serve in both houses of that state’s legislature and on both of its appellate courts, Whichard represented the Standing Committee on the Federal Judiciary of the American Bar Association, which provides the president of the United States with evaluations of potential nominees to the federal bench. Having personally vetted Judge Carnes by reviewing her work as a judge and by speaking with numerous judges and lawyers with whom Judge Carnes has interacted, Whichard reported the Standing Committee’s unanimous rating of “well-qualified,” which is the highest possible rating.

Chief Judge Thomas W. Thrash, Jr., Judge Carnes’ longtime colleague and her successor as chief judge of the Northern District of Georgia, spoke next. Judge Thrash noted the great affection felt for Judge Carnes

by her colleagues on the Northern District bench. A recognized Shakespeare aficionado, Judge Thrash quoted the Bard: “All the world’s a stage. And all the men and women merely players. They have their exits and entrances. And one man in his time plays many parts.” Judge Thrash went on to say, “I think that you will all agree with me that Julie Carnes’ performance on the stage of life has been an extraordinary one.” Praising Judge Carnes’ great intellect and will to

excel in all that she undertakes, Judge Thrash noted that she had also enjoyed good fortune through wonderful parents who provided an upbringing that left her with a genuine affection for the people and places of her hometown.

Judge Thrash then recounted some of the highlights of Judge Carnes’ career, starting first with her tenure at the

United States Attorney’s Office for the Northern District of Georgia, where she served as head of that office’s appellate section for many years. He described her as an outstanding brief writer and oral advocate before the Eleventh Circuit, whose judges highly respected her for her preparation, candor and conversational, down-to-earth style of argument.

Explaining that, while still an Assistant United States Attorney, Judge

Carnes was temporarily detailed to the United States Sentencing Commission, Judge Thrash recounted his conversation with Judge William Wilkins, chair of the commission at that time. Judge Wilkins said, “It was a great day for the commission when the attorney general selected Julie Carnes. She hit the ground running and

Judge Julie Carnes is welcomed to the Eleventh Circuit Court of Appeals by family, friends and colleagues during her investiture ceremony on Feb. 23.

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

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

Judge Carnes takes her seat on the Eleventh Circuit bench.

6

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.

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.

Judge Julie E. Carnes, continued

Former U.S. Sen. Saxby Chambliss recommended Judge Carnes to President Barack Obama for the vacancy on the Eleventh Circuit.

7

said that his own research concluded that neither he nor the trial judge, Julie Carnes, were related within seven degrees. Chief Judge Carnes then referenced comments in “The Almanac of the Federal Judiciary” from lawyers who had practiced before Judge Carnes. He said the lawyers surveyed had described Judge Carnes as “smart, super-bright, always well-prepared, tough when she needs to be, very courteous and judicial, and extremely gracious to everyone.” He stated that there is no better qualification for the circuit bench than having been a district judge, and that no judge on the Eleventh Circuit had ever brought to the circuit bench the level of district court experience that Judge Julie Carnes, with her 22 years on the bench, now brings.

Chief Judge Carnes then administered the official oath of office to Judge Julie Carnes, using a Bible that belonged to Judge Julie Carnes’ late father, Judge Charles Carnes. Judge Julie Carnes’ husband, Steve Cowen, held this Bible, and he, along with Judge Carnes’ daughter and son, Kelly and Jeff Campanella, robed the newly invested judge.

In her own remarks, Judge Carnes explained the process 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.

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 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

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 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.”

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

Chief Judge Ed Carnes congratulates Judge Julie Carnes at the reception following the ceremony.

Judge Julie E. Carnes, continued

8

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.

Judge Julie E. Carnes, continued

The Eleventh Circuit Historical SocietyP.O. Box 1556

Atlanta, GA 30301(404) 335-6395 • wanda_lamar@ca11.uscourts.gov

OFFICERS AND TRUSTEES

Chief Judge Ed Carnes – Honorary ChairmanLeonard H. Gilbert – President

David A. Bagwell – Vice President, AlabamaSuzanne E. Gilbert – Vice President, Florida

George L. Murphy Jr. – Vice President, GeorgiaHalsey G. Knapp, Jr. – Secretary

John M. Tatum – Treasurer

AlabamaJulian D. Butler, HuntsvilleN. Lee Cooper, Birmington

Samuel H. Franklin, BirmingtonHarry W. Gamble Jr., Selma

Richard H. Gill, MontgomeryReginald T. Hamner, Montgomery

Scott A. Powell, BirmingtonJere C. Segrest, Dothan

Finis E. St. John, IV, Cullman

FloridaTimothy J. Armstrong, Ponte Vedra Beach

Joel D. Eaton, MiamiKatherine E. Giddings, Tallahassee

John F. Harkness Jr., TallahasseeBenjamin H. Hill III, Tampa

John W. Kozyak, Coral GablesJames C. Rinaman Jr., Jacksonville

Lanny Russell, JacksonvilleSidney A. Stubbs Jr., West Palm Beach

GeorgiaSarah B. Akins, SavannahRobert M. Brinson, Rome

Wallace E. Harrell, BrunswickDan F. Laney, Atlanta

William H. Larsen, MaconMichael N. Loebl, AugustaKirk M. McAlpin Jr., AtlantaChilton D. Varner, Atlanta

William N. Withrow Jr., Atlanta

9

Ceremony highlights Judge Jill Pryor’s talents and promise

as circuit’s newest judgeBy Patrick C. Fagan

Editor’s note: Patrick C. Fagan is an associate with Bondurant Mixson & Elmore, LLP, in Atlanta.

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 colleagues and law school professor enumerated the many experiences that primed her for this new chapter in her career and recounted how she had touched their lives.

Chief Judge Ed Carnes commenced the ceremony by thanking Judge Pryor’s many family, friends, colleagues and other distinguished guests, including former Sen. Saxby Chambliss, for attending. After the Paideia men’s a cappella group, featuring Judge Pryor’s son, performed the national anthem, Judge Carnes introduced Judge Pryor’s former law partner, H. Lamar “Mickey” Mixson.

Mixson commended Pryor’s 25-year career in private practice as a commercial litigator at the Atlanta law firm of Bondurant Mixson & Elmore, LLP. To illustrate Pryor’s skill in the courtroom, Mixson shared an anecdote about her witness examination skills. Mixson described how, in a high-stakes trial, Pryor had cross-examined a witness in such a way that the witness was left thinking that she had done well before the jury. In reality, though, Pryor’s

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 at Yale University, treated the audience to a journey back to Pryor’s Yale Law School years. Professor Amar opened with a story about Pryor’s first day of law school, which was also the first day of the first class Professor Amar taught at Yale. Brandishing his notes from that day in 1985, Professor Amar recounted how Pryor bravely broke the ice for him in that class, volunteering a description of how both the United States Constitution and the

Articles of Confederation “preserve states as independent entities.” In so doing, Pryor exhibited the legal acumen and courage that would eventually lead her to the Eleventh Circuit.

Professor Amar also shared four lessons from academia that bear on the role of the judiciary and explained how Judge Pryor was primed to meet these lessons. First, like professors, federal judges have life tenure to “free

On Feb. 25, 2015, Judge Jill Pryor became the Eleventh Circuit Court of Appeals’ newest judge. Family, friends, and colleagues came together at the investiture ceremony to witness the special occasion.

Senior Judge J.L. Edmondson administers the oath of office to Jill Pryor with her husband, Edward Krugman, at her side.

10

Judge Jill Pryor, continued

(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.

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

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.

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

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.

11

Judge Jill Pryor, continued

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.”

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 awe-inspiring 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

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.

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.”

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.”

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.”

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

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

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The Voting Rights Act of 1965 and ‘unlikely heroes’

By Clay D. Land, Chief U.S. District Judge, Middle District of Georgia

On Aug. 6, 1965, President Lyndon B. Johnson signed 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.

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.

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.

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.

Judge T. Hoyt Davis and the Primus King case 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 sit-ins in Greensboro, N.C., and 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.

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.

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.

See “Voting Rights Act of 1965,” page 14

Judge T. Hoyt Davis. (Courtesy of the Middle

District of Georgia)

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IN MEMORIAM

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

Douglas J. Mincher passed away suddenly at the age of 57 on Sunday, Aug. 23, 2015. He was appointed clerk of the United States Court of Appeals for the Eleventh Circuit on March 16, 2015. Mr. Mincher’s career as a court administrator in federal, state and municipal courts spanned 25 years and included service as chief deputy clerk for the Federal District Court for the Northern District of Georgia for five years and the court administrator/clerk of court for the Municipal Court of Atlanta for six years. Mr. Mincher graduated with a B.A. degree

from Youngstown State University and an M.S. degree in judicial administration from the University of Denver, College of Law.

He will be remembered for his outstanding service to the court, his often expressed love for his job and respect for Clerk’s

Office employees, and his warm and engaging personality. He will be missed. The judges and employees of the Court of Appeals express their condolences and sincere sympathy to his widow, Diana L. Mincher, and his family.

Douglas J. Mincher

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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.

Continued resistance to changeNotwithstanding 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.

Judge William Augustus BootleDuring 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 Augustus Bootle, an Eisenhower 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

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 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.

From Albany to BirminghamStarting 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.

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.

Voting Rights Act of 1965, from page 12

Judge William Augustus Bootle. (Courtesy of the

Middle District of Georgia)

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Voting Rights Act of 1965, continued

Judge Frank Johnson and the marchThe first of three voting-

rights 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 days later to prepare for a second march. Thousands of protesters, 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.

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.

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.

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.

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 dutyThe 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.

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.

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.

Judge Frank M. Johnson, Jr. (Courtesy of the Middle

District of Alabama)

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

16

On the front lines of the federal judiciary: In a Peruvian prison

By David A. Bagwell

Thirty-two years ago in December of 1983, when I was 38 years old, I was what we then called a “United States magistrate” for the Southern District of Alabama. (A few years later, based in part on my testimony to the Senate Judiciary Committee, whining about the stupid name, they changed it to “United States magistrate judge,” a name no better and maybe worse.) I had done a lot of work for both the Administrative Office of U.S. Courts and the Federal Judicial Center and, evidently as my reward here on Earth, they sent me to Peru to conduct hearings on prisoner exchanges under a treaty between Peru and the U.S.

Back then, we had some Americans in prison in Peru for narcotics trafficking, of course. Why else? Maybe seven or eight men, and one old woman, maybe 80. The treaty – similar to others like it with other countries – provided that, if Americans in Peruvian prisons had exhausted all their Peruvian appeals and had lost, then they could come back to the U.S. in custody of the Federal Bureau of Prisons and serve out the rest of their sentences in a U.S. federal prison.

But there was a major catch to the deal. Since the 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.

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.

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

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.

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.

Until we got back to Lima, anyhow, and had to earn our living.

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.

17

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.

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.

But Alabama has nothing on Peru.

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.

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.

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.

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).

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.)

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.

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 david@bagwellesq.com.

Peruvian Prison, continued

Bulgarella becomes bankruptcy court clerkJoseph E. Bulgarella was appointed Clerk of the United States Bankruptcy Court for the

Northern District of Alabama in July of 2015. Before accepting this position, he spent 16 years as an assistant United States Bankruptcy administrator and the division attorney for the Western Division of the Northern District of Alabama.

He began his career in private practice, focusing primarily on the representation of creditors in bankruptcy matters. Bulgarella received a B.S. in commerce and business administration from the University of Alabama and a J.D. from Samford University’s Cumberland School of Law. Joseph E. Bulgarella

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Judge Peter T. Fay, from page 1

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

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)

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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.

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.

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

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.

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.

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

Judge Peter T. Fay, continued

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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.

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.

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.

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

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.

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.

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.

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.

Judge Peter T. Fay, continued

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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.

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.

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

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.

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.

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

Judge Peter T. Fay, continued

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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 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.

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.

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.

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.

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.”

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

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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 Peter T. Fay, continued

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

Judge Johnson with a stringer of redfish and speckled trout in the anchorage at Chandeleur. (Courtesy of Pat Sims)

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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?

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.

The Silver King III 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

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.

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:

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.

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.

When Curtis Caver arranged the trips on the Silver King, he always ensured that there were an odd number

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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.

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.

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.

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

Judge Frank Johnson, continued

Judges Frank Johnson and Gerald Tjoflat relax after supper in the author’s boat. (Courtesy of Pat Sims)

Judge Johnson conducts an inspection of the Asmus/Tjoflat boat. (Courtesy of Pat Sims)

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claim, grabbed the line, and pulled the skiff across, while his passenger fished another miniature out of his box.

Sidebar — LuresThere’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.

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.”

Lafourche ParishCurtis 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.

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

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.

The Big BendAfter 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.

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.

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.

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

Judge Frank Johnson, continued

27

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.”

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.

Reporter’s OathThose 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.

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.

Judge Frank Johnson, continued

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.

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Discussing the BCCI trial:Middle District of Florida’s ‘Fifty Years of

Justice’ book celebrationBy Larry Dougherty

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.

At the September event, the History Committee chose one trial from among the many significant and exciting trials and cases examined in Professor Denham’s book: the BCCI money-laundering case. The choice was timely as well as historic. Not only did the BCCI case involve one of the largest money-laundering prosecutions ever, but also the events underlying the case are the subject of a forthcoming major motion picture movie, “The Infiltrator,” due for release in 2016.

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.

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.

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 by judges, lawyers and law students. Another was the History Committee’s work installing exhibits in

the lobbies and public spaces of the courthouses in the district.

Judge Porcelli then introduced Professor Denham, a history professor and director of the Lawton M. Chiles Jr. Center for Florida History at Florida Southern College in Lakeland. Professor Denham described the formation of the Middle District from territory formerly part of the Northern and Southern Districts of Florida. In expounding 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.

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

An audience whose members included former Florida Bar President Gwynne Young and former Second District Court of Appeal Judge E.J. Salcines, center, enjoyed the presentation. (Photos courtesy of the Middle District of Florida Bench Bar Fund Committee's History, Education, and Public Outreach Subcommittee)

29

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.

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.

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.

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

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.

30

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.

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.

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-District-Quincentennial/dp/0813060494 and also from the University Press of Florida at http://upf.com/book.asp?id=DENHA001.

Editor’s note: Larry Dougherty is a bar representative on the Middle District of Florida Bench Bar Fund Committee's History, Education, and Public Outreach Subcommittee. He is an associate with the Tampa office of the Foley & Lardner law firm, practicing complex civil litigation focused on white collar and securities matters, intellectual property and appeals.

Author’s note: The 50th anniversary celebration was last discussed at length in the Winter 2013, Vol. X, No. 1 issue of the 11th Circuit Historical News. The old courthouse-turned-boutique hotel was profiled in the Summer 2014, Vol. XI, No. 2 issue of the 11th Circuit Historical News.

Book Celebration, continued

From left, Senior U.S. District Judge Wm. Terrell Hodges, Tampa lawyer Pat Dekle and Professor James M. Denham talk before the panel begins.

U.S. Magistrate Judge Anthony E. Porcelli, one of the organizers of the BCCI panel discussion, welcomed the audience.

Books by Professor James M. Denham were available at the event.

31

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.

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.

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

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.

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.

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.

32

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.

33

Judge Schlesinger, continued

34

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

Judge Schlesinger, continued

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

Photos provided by Susanne R. Weisman, Esq.

35

The NCBJ meets in Miami BeachBy 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.”

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

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.

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.

Judge A. Jay Cristol accepts the 2015 Judge William L. Norton, Jr. Judicial Excellence Award. (Photo courtesy of American Bankruptcy Institute)

36

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.

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.

In a July 20 ceremony in Montgomery, National Park Service Director Jerome Jarvis cited the judges’ roles in the 1955 Montgomery Bus Boycott, the 1961 Freedom Rides, the 1965 Selma to Montgomery March, and the desegregation of Southern schools and universities. The judges also played leading roles in ending segregation of public facilities and upholding voting rights for African-Americans.

“The courthouses in Alabama here, Georgia, and Louisiana were all involved in nation-changing events,” Jarvis said. “These courts bore the burden of enforcing Brown v. Board of Education after the Supreme Court rendered its historic decisions. … (They) dealt effectively with Southern massive resistance and obstructionism.”

Gerald B. Tjoflat, a U.S. Court of Appeals judge for the Eleventh Circuit, who knew and served with all three judges, said they also were remarkable examples of courage, dignity and personal civility in the midst of a national storm.

“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.”

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.”

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.”

Two years later, Clinton said that Johnson, a U.S. district judge for the Middle District of Alabama, “changed the face of the South. … He challenged America to move closer to the ideals upon which it is founded.”

Wisdom, Tuttle and two other judges — John Robert Brown and

Richard T. Rives — were known as the “Fifth Circuit Four.” Ironically, the term was coined as an insult by a fellow Fifth Circuit judge, Benjamin Cameron, who accused his colleagues of panel-rigging in their zeal to overturn segregation.

By the time Tuttle became the Fifth Circuit’s chief judge in 1960, the promise of Brown v. Board had stalled, as school systems across the South ignored the Supreme Court’s mandate to integrate. The Fifth Circuit encompassed six Southern states — Texas, Louisiana, Mississippi, Alabama, Georgia and Florida — although the last three became the Eleventh Circuit in 1981.

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

At the July 20 ceremony in Montgomery, are, from left: Myron H. Thompson, Senior U.S. District Judge; Jonathan B. Jarvis, NPS Director; Torre J. Jessup, regional administrator for the General Services Administration Southeast Sunbelt Region; and Chief Judge Ed Carnes, U.S. Court of Appeals for the Eleventh Circuit. (National Park Service photo provided by Administrative Office of the U.S. Courts.)

37

Judicial heroes, courthouses named landmarks

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.

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.”

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.

“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.”

Despite their monumental impact, the judges were described as personally modest.

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.

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.”

Publicly, the judges were matter-of-fact about their role in defeating Jim Crow.

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.”

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.”

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)

38

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)

39

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