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IX Judge, U.S. District Court, Northern California, 1976-1979

Finishing Cases Undertaken in Private Practice

Hicke

Okay, so now, where we left off before was, you were appointed to the district court, and you had a hard time making up your mind, but you finally did make up your mind and broke the news to your wife. So what we need to start with, I think, is what were your early impressions, and what were your first responsibilities, and what happened as you came on the court?

Poole

I was nominated by Gerald Ford, and I think that that was sometime in July of 1976.

Hicke

Yes, that's what I have.

Poole

Then I had the problem, actually, of having to unload a lot of the cases that I had. It was quite a problem. We had one case in which my clients were lawyers. They had a tax shelter practice, and it was one of the most complicated schemes ever heard of. Their clients were mainly people who had high incomes. They had movie people and prominent professionals, doctors, lawyers, who had money and wanted to invest it. There was a lawyer down at Los Gatos who was the genius behind this, Harry Margolis. He's dead now. His practice was devoted to these schemes of investment, and these were a part of the offshore trusts—those things were in the news for a while—and these were in the Caribbean countries and the trusts were there. The only way you could understand how the money went was to draw it [schematically]. He had blackboards as long as from that window to that door [demonstrates].

Hicke

Twenty-five feet or something like that.

Poole

He would draw what happened to it at different places and all that. At the time he contacted me, he had pending in the United States Tax Court approximately 350 tax cases. Not all of them

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were in this, because some of them were routine tax cases. He had this thing, and the government was frustrated, because in the tax court, Harry would win some and he'd lose some.

Hicke

Were these fraud?

Poole

Well, that's what the government was saying. I never knew, because I never really knew how it worked. The government got tired of having only indifferent success in the tax court, and they decided this really was a big fraud, let's treat it like a criminal fraud, so they indicted him. Before they indicted him, they were calling a lot of his clients to the grand jury. The grand jury was sitting up in San Francisco, but they were calling people from Hollywood, producers of pictures, and trying to get them to give them statements.

That's how I came into the picture. Harry came up to see me and asked me if I would represent some of these people who were going to be called before the grand jury. So we talked about it, and I said I would. It sounded kind of interesting to me. This was before I was nominated, but it was strung out well after the nomination. The two assistant United States attorneys who were working that case were people whom I had hired when I was the head of the office. As I said to one of them, "What are you doing here? I didn't hire you to be a trial lawyer. I would never let you get into a court if you had to do this sort of thing." [Laughter]

Anyhow, I met with these witnesses. I went down to a couple of places in Southern California and met with them. The first one that I remember meeting with—it wasn't the first one, but I remember he stands out. He was a plastic surgeon, a very successful, very highly skilled plastic surgeon. First I met with his certified public accountants. We had a conference, the two accountants and I, and they were anxious that I not— They said he didn't even know what happened, how the thing happened. They had gotten him because he and his wife had gotten a loan from Security National Bank of $675,000, and Harry had invested that. "If he is going to go to the grand jury, I want to know what is the state of his knowledge, but I don't want to be feeding stuff to him." I met with his accountants first and they told me a lot of things about this loan. They knew what it was. So he came in, and he had on his white jacket and he had the thing around his neck, and the kind of turban they wear. We started talking. They introduced me to him.

Hicke

So he walks in all dressed for his work.

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Poole

He walks in with all this stuff. We got introduced, and so I said to him, "The government wants to know what happened to this $675,000. What can you tell me?" He said, "What can you tell me?" And I said, "I don't know anything. I'm looking for wisdom now. I thought maybe you might be able to tell me what you do know about it." He remembered the loan. It didn't seem like it figured too importantly.

Hicke

Just a mere six hundred whatever.

Poole

I noticed he was looking at me like this [demonstrates].

Hicke

Staring and really looking you over.

Poole

Yes, and so then what he did was he came over to me and did like this [demonstrates].

Hicke

Put his hand up?

Poole

He said, "You know what? I could make you beautiful." [Laughter] I think he had three or four floors. He owned the building. It was in—not Hollywood—it was right outside there, near where Ronald Reagan has his home now, Bel Air, something like that.

So I went and talked with him, and he was very nervous about the idea of going to the grand jury. I went back to San Francisco and I talked to the Department of Justice people, and I said, "This is going to be a long process, because I'm going to tell you, when he starts answering your questions, you're going to not believe him. I am not going to tell you whether you should or shouldn't, but I'm going to tell you this: I can walk out of the room, and he'll give you whatever the answer—he knows some things, and he doesn't know some other things. I have told him that when he's asked a question that he can answer, he has a choice of either answering it or refusing to answer. But whatever he does, he's to tell you the truth as he knows it. He's not a lawyer, and I told him not to try to be a lawyer."

I worked out a plan with the assistant U.S. attorney that instead of going to the grand jury with him, we would take the deposition in their office. I'd be present. I wasn't going to say anything, but if he wanted to consult with me, I would do that. I said, "You'll save a whole lot of time." They agreed, which I thought was some indication of their trust that I wasn't sitting there scheming with a whole lot of lies. They got nothing from him.

Then there were a couple of other doctors. They were from somewhere around San Jose and down the peninsula. I got them to

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do the same treatment with them. Instead of going to the grand jury, they came and talked with them. It went faster than it would have before the grand jury, because their instructions from me would be when they were asked a question, "When you're in doubt about the answer, you ask them to let you come out and consult with me. I'll be in the room next to you." That takes a lot of time. When they agreed to do this by way of a deposition, it did go faster.

Eventually, the grand jury indicated three people. They indicated Harry and a couple of other lawyers. Then Harry asked if I would represent his chief. He had six CPAs in his office, and he asked me if I would represent the chief CPA, and I agreed to do so.

It was after that that the nomination came out. So here I was. I had been nominated three months and I still hadn't taken the oath. I had some other cases that I was having difficulty getting out of the way. I did a lot of tax cases. What was happening was that the district judges over there at the Federal Building were embarrassed to have me coming in and arguing cases in their chambers because I was soon going to be one of them. [Laughter] It was something.

As part of that case, the government was taking depositions all over the Caribbean, and we had depositions scheduled for Brussels and Paris. The government came into the court with a motion. Ordinarily you tell them who's going to be the deponent, whose deposition you're going to take. They had this affidavit why they shouldn't be required to disclose it. They came into the courtroom of Judge William Orrick. Bill Orrick and I at that time had been friends for more than twenty years, but he was no nonsense in the courtroom. So they filed this motion to suppress some of the evidence, or not let us have it at this time, so it wouldn't have to be disclosed until there was a trial. I said, "Your Honor, how can this be? They want us to go from here to Europe to take a deposition from someone whose name we don't even know. To do that puts us at a manifest disadvantage. We've got one hand tied now, maybe both hands tied behind us, because I don't know what they've put in that piece of paper they've given you. But if they're indicating there is any threat coming through me, then you've got some liars in this courtroom."

So we argued and argued and argued, and he finally said he was going to rule against us. He wasn't going to let us see it. I said, "You mean you're going to tell us to go across the sea, when we don't know where we're going or who it is? We don't have any means then. But some of this is going to delay this court for a long time. Because, Your Honor, if you do that, we're going to be

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delayed a long time in getting this case to trial." He said, "I think I can push it on a little bit." I said, "Maybe you can, and maybe you can't. But in any event, it is not going to be very accommodating." So finally he looked at me—there were a lot of people in the courtroom then—he said, "Mr. Poole, when you get to be a judge on this court, you'll do it your way, but I'm going to do mine my way. And my way may not be yours." I said, "You can bet your boots it's not." [Laughter] His name is on my admission to the Supreme Court.

Hicke

Is it?

Poole

Sure.

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[Searches unsuccessfully for his admission papers] Anyhow, I was admitted to the U.S. Supreme Court in 1961 and that was in the early days of the Kennedy administration. Bill Orrick was then an assistant attorney general, and it was on his motion that I was admitted by Chief Justice Earl Warren.

So it was getting increasingly difficult for me to be able to go into a curtroom without some embarrassment, and I could see that I couldn't stay with this case. I finally got a lawyer from down in Southern California who had done some of this kind of work, whom I knew to be very sharp and very bright. Before I gave up the practice, [William] Bill Schwarzer and [William] Bill Ingram—Schwarzer was a lawyer with McCutchen, Doyle, Brown & Enersen, Bill Ingram was on the Superior Court in San Jose—and I were nominated. I think I told you that their two names were sent in at first, but they didn't send mine in. The Ford people were concerned that this wouldn't help them out in the Republican primary as against Ronald Reagan, who was threatening to run.

Finally I realized that the time was up and I had to do it. I got somebody to take my place, and we went into Stanley Weigel's chambers. The lawyer who was going to take my place came and we had an affidavit. He explained that he would require that the— They had these spurious trial dates. They weren't going to go out on that at that time. But he said he would require thirty days before he could do it because he was just beginning a case involving an engineering defect down in Ventura County. Stanley—Judge Weigel—didn't believe that he had this case.

I said, "Your Honor, I know that he has a case because it was upon my reference that he became associated with the case. I know the case to be a difficult one. I couldn't do it because obviously I don't have that much time." So Stanley was sort of

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saying, Okay, all right. For whatever reason it was, I don't know, I think this lawyer sort of rubbed him the wrong way, because he is one of these persons who speaks clearly, articulately, and loud, and I think Stanley didn't like that. He said to him, "I can see, sir, that you are striving for some kind of advantage." Well, the ball left my court and went into the other court at that point. This fellow stood up and he said, "Your Honor, you're a judge of this court and I respect you. I know you don't know me, but you have no right to presume that I am not responsible in my representation or that I seek some untoward advantage. I haven't given you any cause for saying that, and you have no business saying it." I thought Stanley would have liked to punch him in the mouth [inaudible], but he took the paper.

It was a substitution, and we had prepared the paper with a paragraph giving a thirty-day continuance on the assumption that Stanley was going to say all right. He didn't want to try the case. He crossed that out and signed it. We went straight down the hall to Bob Peckham, who was then the chief judge. I said, "I don't know why he did that. He didn't need to." Anyhow, Bob took care of it.

I was representing the chief CPA, but they split them off. Three lawyers went to trial on it: Harry, and a lawyer from Oakland who was associated with him, and a woman lawyer who was from Southern California. They tried this case, let me tell you. They tried this case. It was Ingram's first long federal case. It must have gone on for six, maybe seven weeks. The funny thing about it was they had given us discovery. I got eighty-four boxes of machine records. They brought them to the Federal Building and they put them in an empty room there, and we hired a couple of trucks and took them down to Harry Margolis's office. I said to the assistant U.S. attorney, "You still don't get it do you? You're going to try a civil tax case and the jury isn't going to understand a word. We're going to defend a criminal case. You watch."

So they went to trial, and after all that period of time, the jury acquitted the woman lawyer and the man lawyer. They disagreed on Harry. They had a hung jury on him. So these two were out. My erstwhile client, the chief CPA, never went to trial. They tried Harry alone and he was acquitted. No jury in the world could understand what they were talking about, because you had to be able to show that there had been a fraud. To show that, you'd have to show how the money was invested and reinvested. That's what we meant by the money is traveling. I to this day don't know how it happened. And I wasn't even interested in how it happened. I certainly had some fun trying the case though. Bob assigned that case to Bill Ingram. So Bill, having

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gone through his invested jurors and all, called me one day. He said, "Did you ever know what this case was about?" I said, "Not much, Bill. But I figured that I wasn't alone. I didn't think the government knew much." He said, "They had no idea where they were." On the second trial, he was acquitted. That's how that case ended.

Do you remember there was an outfit called EST was it?

Hicke

Yes, EST [Erhard Seminars Training].

Poole

The head of that [Werner Erhard] was one of the clients. Yes, he was one of them, and for a while, he was the one whom I was advising. They had lots of money.

Hicke

That was a big transition you had to make.

Poole

I remember I had a routine case that involved a husband and wife who were tax preparers, and they obviously were preparing tax returns that they had no business believing were correct. The husband and wife both agreed to either a plea of no contest or to plead guilty. When it got down to it, finally, I worked it out before Judge [Alfonso] Zirpoli that the wife would plead to, I think it's making a false statement to the government, and the husband would plead to two counts of filing a tax return not believing that every statement or allegation in there was true.

Hicke

So it's the responsibility of the preparer to ascertain the proof?

Poole

Yes. And then the last day I was going to be in any court on that side of the desk, he had thought about it and he didn't think he wanted to make that plea. So, I brought in Clinton White, who is now a justice of the California Court of Appeal, First Appellate District. I guess Clint's the presiding justice of one of those divisions over there. He was a good trial lawyer, and he agreed to take the case. Zirpoli gave him the same easy sentence he would have given if I'd been there.

Induction Ceremony to the Bench

Poole

I finished up all the things that I had to do, and then we had the induction ceremony in the Ceremonial Courtroom at the Federal Building.

Hicke

Did Judge Peckham make some special welcoming arrangements for new judges at that time?

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Poole

Oh, I had a big ceremony. The Ceremonial Courtroom was absolutely jammed, and two senators were there—[Alan] Cranston and [John V.] Tunney, Governor [Edmund G. Sr.] Brown was there. Let's see, Attorney General Stanley Mosk was there. Oh, it was a mob scene.

Hicke

Was it up there on the nineteenth floor?

Poole

Yes. The Ceremonial Courtroom is still there, but they've got more floors now. They've done a lot of work up there recently. There was standing room only. It was kind of good. So then I went into oblivion.

Hicke

Oh, is that how you describe that?

First Paycheck

Poole

I'll tell you what I do remember. I think around about the second or third of the month you'd get paid. About three weeks after I had been inducted, my secretary brought in this brown government pay envelope, and I kind of absent-mindedly opened it and I looked at it. Now I can't tell you what the amount was, but I looked at it, and I thought, What the hell is this thing for? It was just a small amount of money. And then I saw where it said salary. So I went down to Bob. I was next to Bob Peckham, and I went down to his chambers, and I said, "Bob, how often do you get paid around here?" And he said, "Oh, once a month." And I said, "You mean this is it?" [Laughs] He said, "Well, remember now, it was five or six days after the first of the month before you took the oath." I said, "Five, six, seven days, what do you want? You mean this is it?" I couldn't get over it.

Hicke

You didn't know what you were in for?

Poole

I had to know it. I had to have some idea, but it was so much surrounded with deductions that they had—deductions for your health service, deductions for annuities, and all this kind of thing; so it was kind of hard. I had been looking for a couple of refunds—IRS refunds. And my first thought was this was a refund check. I thought to myself, Why did they go to all this trouble if that's all there was there? I never questioned it after that. I went home and told Charlotte about that, and she said, "You're just spoiled." [Laughs] It was something.

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Some Early Cases

Hicke

What did it feel like to be on the other side of the table, as you put it?

Poole

You see that right there, that little statue?

Hicke

Yes. The justice with the scales. Is that what it is?

Poole

Yes. That was given to me later on by the first defendant I had when I went out on my first criminal hearing after I became a judge. I can't remember his name.

Hicke

Oh, I'll go look on the statue.

Poole

He was charged with some minor narcotic thing. I'm not sure whether his name is on there even.

Hicke

Well, let's see. It just says "Your first customer."

Poole

Yes, that's right. When I came into the courtroom and they said, "All rise," this was his case. I said, "I guess you're my first customer."

The government wanted him to get a pretty stiff sentence. He was caught with some amphetamines or something like that. His lawyer had asked for maybe a maximum of a couple of years, something like that.

Hicke

His lawyer?

Poole

Yes, the defendant's lawyer, and I gave him that. That was before they had these guidelines. He wrote to me. He used to write to me every now and then. It was different. It really was different, but it still was in the courtroom, and that's the part that I liked.

Hicke

You were familiar with the courtroom by then.

Poole

I did like the trials of cases. I got to the place where the lawyers had me categorized as one thing or the other. On certain kinds of cases, they said, "Oh, boy, he's tough on those cases." Some would say, "He's all right on this, and he's all right on that one."

Hicke

Do you know how they categorized you?

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Poole

Well, there were a number of different ways, I'll say that. They weren't unanimous. By and large, I got along well with the lawyers. I liked jury trials. They were interesting—to listen to the witnesses and see what lawyers were on their feet, whether they knew what they were doing, which ones you wouldn't have for free. I had a great variety of cases.

Hicke

After you make a decision, are you able to put it out of your mind and go to the next one?

Poole

Some will worry you.

Hicke

That's what I wondered.

Poole

What you really have to do is, you have to do the best you can on it, and having done that, leave it, unless you become aware that something was omitted that you should not have omitted; then in that case you may even have to modify it, assuming that it's a modification, because if it's going up, you really can't do that. I liked the trial cases, because you saw all kinds of things in there. You could get some lawyers in there who were really very good, and who weren't simply there for spectacle. I didn't care for those who believed they were on a bully pulpit, but I came to the point where I could pretty much see before they really got to it where they trying to go. Every trial was a different trial.

I remember one that involved United Fruit Company. It dealt with the commercial way of ripening fruit. Up until that time, I hadn't any idea how they did it.

Hicke

After it's picked, I assume.

Poole

Well, for example, bananas. They pick bananas green and they ship them from Central America and bring them up here, and then they have these big processing plants where they expose the plant to gas, and that starts the ripening process. It was a civil case that involved United Fruit on one side. I've forgotten who was the complainant on the other side. The person had developed a new scheme—I don't know what kind of gas it was, but a new way of doing it. Some of the competitors felt that it was a pretty risky way of doing it, that there was a danger of explosion. There were some kinds of horror stories of things that happened in which people had been hurt. It was new, but more and more of the wholesalers were using it.

So one of them finally got himself in a situation where he was being charged with what amounted to slander of product, that is, he had indicated that he had advised his distributors that they shouldn't use this method because of the danger of explosion, and

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the other side challenged him, and they finally got this lawsuit and they tried it. It went on for several weeks on the trial.

I finally instructed the jury. The defense to the contention that this was apt to explode was based upon some information that came up from Virginia or Maryland. The defense was that there had been some people hurt, but they hadn't been able to get anybody into the courts who could say that. So after I gave them a couple of days' recess so they could do what they wanted to do, I insisted then that we proceed with the trial, and we did. I gave the jury instructions, and the jury came back with some substantial verdict and with punitive damages on the ground there was a willful slander of the product.

Well, one of the defense lawyers I think believed that I had been kind of tough on them. I think I had been, because he was dragging it out. I told him in conference that "I wanted to give you an opportunity to make your case, but you told me when I was setting this case for trial how much your estimates were and, while I know that you can't rely upon pretrial estimates, you're really dragging some of this out and you're repeating things." He told me sometime later on he thought I was being hard on him.

The jury came in with the verdict, and I was surprised. I thought it was close. I didn't think they would even consider punitive damages, although I gave them the instructions on it. Two days later, the losing lawyer came up and said that they had now gotten confirmation that there had been these explosions. They believed that the information about them had been suppressed. They believed further that the plaintiff in there knew about this. That's a pretty bold accusation. They wanted me to stay the entry of judgment. They had, of course, a motion for a new trial, and they wanted to go to the East Coast to check into this and to get the concrete knowledge. I said,

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"You seem pretty confident that you're going to find this evidence." "Oh, yes, we are, Your Honor, oh, yes." I said, "I'll tell you what I'll do." To the loser and his lawyer, I said, "I would require that you accept the expense of transportation and lodging for the plaintiff and his counsel to go to the East Coast, and you can give me an estimate of how long you'll be there and what the probable expenses would be and so can they. At your expense, if you want to do that. Then I'll let you go out there, and I'll stay the judgment." They went back told their clients, and their clients were not that pleased. So they came back and they kind of sheepishly told me that they didn't think so. "All

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right," I said, "I'll have the judgment entered and that's where we stand."

I saw him a number of times after that, and he was a good lawyer, and he still remembers that. About a year ago, he moved from one large firm to another firm, and I was sent a copy of their announcement, and I sent him a little note that I was pleased. "I hope your new associates or new partners will realize that they have a very fine trial lawyer acquisition to their firm. I can tell them." About four months ago, the same person was being considered for admission into the [American] College of Trial Lawyers. It's an ornament. They asked me for a recommendation, to fill out a questionnaire, which I pulled out, and then got busy on something and didn't send it.

The time for it passed. So I sent it to the association of trial lawyers anyhow, and I said, "Even though it may be now too late, and for no fault on his part—I delayed sending this out in the press of business—just for the record, I want to tell you I think he is a fine trial lawyer." Somehow he got news of this.

I see a lot of lawyers that I have known and a lot of them that I know from the bench, and I enjoy meeting with them on some occasions. I don't belong to many societies, and I don't like to go to testimonial things. As a trial judge, it's quite different than what we're doing here.

Hicke

In the circuit court?

Poole

Yes. We have calendars, and the computer gives them to us a year in advance. They're subject to change, but on the appellate court you can pretty much set your schedule, what you're going to do on things. In the trial court, you can't do so much of that. You say to counsel, "What are your several estimates about the length of time this trial will take?" And they'll say, "I'd say for the plaintiff, Your Honor, it will take us four days, maybe four and a half, but that's it." "Well, Your Honor, it will probably take two days." Three weeks later [laughter] they're still doing that.

"It's the Best Job There Is!"

Poole

The anecdotes from the courtroom are really something. There are all kinds of things that go on in the courtroom. When Fern Smith was inducted as a district court judge, I went to her induction, and she asked me to say a few words for her, so I did. I said, "Fern, I want to tell you, when I first thought that I was going

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to become a district judge, it wasn't the first time, it was my third try, but I wasn't sure I really wanted to do it because what I loved doing, as long as I could remember, was trying cases. But I came out here to this building, the Federal Building, and I went to see Bill Orrick, and I asked Bill—by that time, he and I had a lot of quarrels—I said, `Bill, you gave up your place in the Orrick firm to become a district judge. Do you think it's worth it?' And he said to me, `It's the best damn job there is!' and that's what I'm going to tell you."

"You're getting the best damn job there is in the judicial business, I'll tell you that. I'll tell you something else, Fern, here today you're sitting on the front row of all of these judges, everyone of whom is senior to you, sitting either laterally with you or behind you. That's where you sit when you're getting inducted. It's going to be a long time before you sit up there again."

They're pretty much a breed, I think they are. We used to say, for example, when I was on the court, "To heck with the appellate court, we don't care what they do about this." They said, "Look, our job is to get them tried. Their job is to reverse it." [Laughter] I said [to Fern], "You're going to say that to yourself many times."

There is a lot of activity and flurry going on now because Clinton's got all these appointments to make, and it's going to be interesting to see.

Hicke

I think this is a good stopping place.

Poole

I guess so.

Significance of Federal Court Decisions

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Hicke

Let me just ask you if you could tell me what you think the two or three most important things are that happened to you when you were a district judge.

Poole

First of all, I think there is a sense of dealing with issues of either personal concern by the persons who are involved in the litigation or concern because of its effect upon—it could be upon the nation, as a matter of fact—or because the issues that are involved before you are issues in which there is a great deal of

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public concern. That's different from being, for example, a deputy district attorney who's trying somebody for grand theft. Not that that isn't a matter of concern to the state, but it's not earth shattering, and it's part of the local penalogical process.

For example, one of my assistants, when I was a United States attorney, is now a federal judge in Los Angeles—Terry Hatter. I brought Terry to San Francisco from Chicago, where he had been a deputy public defender. He was with the office about three, maybe three and a half, four years. Then he went to Los Angeles and did various things in connection with the interests of some of the universities down there about structuring the law in certain ways. He was with one of those foundations down there. The he got appointed in President Carter's administration to the district court. He was, I guess, probably the first federal judge in the country to hold firmly and formally that the military could not discharge this young petty officer, I guess he was, because of his sexual orientation. I think Terry was probably somewhat overcome with how this focused on him all of a sudden. Although, as I told him on the phone when he called one day, I said, "Don't tell me that you were apprehensive. You've been planning this thing for a long time." I said, "Don't kid me, baby." [Laughter]

Hicke

Did he own up?

Poole

No, and he's called me several times. If someone answers and they tell me it's Judge Hatter, I get on the phone and I say, "I'm not going to ask you any questions. I'm not going to search your person or anything, and if you just don't say `nothing,' you're going to be all right." [Laughter] But I never had anything quite so much the subject of nationwide interest as that.

The federal court system operates on a pretty high plane. For a lawyer, unlike the state system where you do have the state supreme court as a monitor for keeping the law straight, the importance of the rulings is much, much stronger in the federal system, because eventually a precedent may be created which will affect other states and other things as well. As a trial judge I had these decisions to make. Although many of them are simply corporate decisions and people wanting money and all that, by and large, it was what I would consider a strong cut above the usual state court practice. And I practiced law in state courts for a long, long time.

Hicke

A wider impact?

Poole

Much so, and then, you see, Congress makes these laws, and sometimes they make the law, as enacted, represent many concessions to many interests. What the original proponents of

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the legislation may have had in mind may be way over here some place because, in order to get it through, they had to give some and take some.

I remember when I was in my confirmation hearing, one of the senators asked if I recognized that it was the function of Congress to make the laws, and the judges should not, by their decisions, attempt to enact legislation that Congress hadn't intended. I think he was a little bit surprised at what my response to him was when I said to him that there are comparatively few judges who really believe it is their function to enact or to change the law. Their function is to decide what it is and to do the best they can with the compromise that you've given them. Very often the matter that is of crucial importance is a matter that the legislators stayed away from, and they left it up there to be thrashed out as litigation might do it. I said that's what's happening sometimes. It gets there sooner that you think it will. It may well be that the person who, in fact, introduced the law never intended to give federal sanction to what the court decides. But, how do you know that? When you're sitting on the bench, you know that in a particular case, this may have very large implications. That could be true in the state courts too, by the way.

Hicke

But now you were dealing with law as a federal judge, right?

Poole

When I came to the federal court, I had been the United States attorney for eight years. So I dealt a lot with it. And when I first came to California, when Ben Duniway had appointed me to the Office of Price Administration, that was my first introduction to—well, it wasn't really. I can go back to the National Labor Relations Board. But I wasn't there long enough that it had any impact on me.

Hicke

But you've moved back and forth then between federal and state law?

Poole

Yes. Federal judges do get a sense of both of the importance of cases before them and of the need and desire to decide them properly. Just because a president may have appointed a particular judge doesn't mean that when they come to a situation in which the president has enunciated some particular position of bias on that, that one of his appointees down the line there is going to go right with him because he's the president. I guess some of them do, but, by and large, you have to try to decide the law based upon all of the criteria, all of your knowledge, and all of the feeling you have that this is what the Congress was trying to get to. Sometimes you fall short of that.

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Sentencing Guidelines

Poole

We're having tremendous problems throughout the criminal courts of the country now with the guidelines that they have.

Hicke

Sentencing guidelines?

Poole

Yes, the sentencing guidelines. What really happened is that the Congress has decided that federal judges were doing what judges have done from time immemorial when Solomon, as a judge, had that baby and said he would cut it in half. They built up quite a case for the proposition that federal judges were deciding criminal cases unevenly. One judge would give a defendant, where there's a maximum let's say of twenty years, he may give him nineteen years, and the other one might give him seven years. It's hard to know which are oranges and apples in that barrel, and I think most of what Congress used in its terrible horror stories that accompanied the debates on the sentencing guidelines were artificially carved out. You can get all kinds of horror stories if you look for them. And I suppose we'll always get them. You get them in the guidelines too. The idea that somehow there is an administrative body with Solomonic wit and information that is able to provide for all of the human exigencies that may have to be decided in the context of federal trial litigation is nonsense, just utter nonsense. That's one reason that I am not on a committee of the Judicial Conference of the United States.

I was on the Criminal Law Committee. We met with the Sentencing Guidelines Commission at a time when the guidelines had not yet become law, and there was a strong urgency on the part of many federal judges to hold off doing it, as they had some years earlier successfully importuned Congress to do with respect to the Speedy Trial Act. The Speedy Trial Act also became politicized. There are provisions in the rules and, of course, the Constitution itself calls for a just trial, and a trial that is long delayed cannot be a just trial. So Congress enacted the Speedy Trial Act, which in effect set up some points that had to be considered before continuances could be granted in criminal cases. If the case exceeded the time periods—not in a situation where the defendant could be held to have agreed or gone along with or been responsible for it—then the defendant's case was dismissed. I think it was seventy days or something like that. So the federal judges and a lot of other people had made strong representations publicly and to the Congress to hold off the time before making these things the law.

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In the meantime, there were ongoing projects in different district courts in which all cases were being tried as if the guidelines did exist. The Congress gave a period of grace on that, and then at the urging of many of the federal judges and scholars and professors of law gave further extension. The same thing happened on the guidelines, and so the commission was going around the country—it was this commission that was appointed to draw up the guidelines. They had a big staff. The commission was going around the country selling the value of the guidelines. At the time, I had been appointed by Chief Justice [Warren] Burger to the Criminal Law Committee, and I was there. We were to meet with the Guidelines Commission out in Montana. We went there and there was a whole lot of pressure on the members of that committee, but there were a couple of us who—

Hicke

From who? The chief justice?

Poole

Well, some, yes, from the chief justice. But I think mainly it was because some of the iron men in the United States Committee on the Judiciary were trying to get this thing through. To accomplish that was going to be the end of all of our travail in this world.

Hicke

So this is Congress you're talking about?

Poole

There were people who believed really, sincerely believed, and you could document a lot of worst cases in which they believed that federal judges' sentencing was disproportionate. Sentencing has always been disproportionate, whether it was the sword or otherwise. The commission scheduled this meeting with us out in Montana and we went there. There was a pitch made by those of us on the committee who remembered how the Speedy Trial Act thing had gone. Actually, the fact that they had gotten a continuation of the effective date of the Speedy Trial Act helped a lot. We were going to have to throw out a whole lot of cases if they didn't do it. There had always been some provisions that mandated a speedy trial, but seldom was that provision of the Federal Rules of Criminal Procedure ever put into practice.

The guidelines were much more horrible things than the Speedy Trial Act. I never got concerned that— We had big calendars. When you're running three or four hundred cases, you've got a large criminal calendar, or it could be a criminal and civil calendar. You not only had to try the criminal cases, but you had to give the civil litigants a chance too. I wasn't as much concerned about the Speedy Trial Act furor as I became years later with the sentencing guidelines. When it finally came down, after discussion had been had out there in Montana, and then they took a vote on it, and, by George, there were only two of us who stayed

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until the bitter end, voting for a continuance of the effective date.

Hicke

Only two of you on the J.C.U.S.?

Poole

Only two of us on that committee. Everybody else voted to have it put into effect right away. The committee had, as I remember, about thirteen to fifteen members, and Steve Breyer was the vice chairman of the committee, and the chairman was a person who had been appointed by the senator from South Carolina. Anyhow, we argued it quite at length, and finally I became the only one holding out. I continued to hold out, and it passed, with one voting against it. That would have been around about July or maybe even August of 1989. I think it was '88 or '89.

Chief Justice Burger retired; so we then got some communications from the new Chief Justice—Rehnquist. Rehnquist decided that the structure of the Judicial Conference of the United States was too unwieldy. I think he was correct in that. It had become a place where old crusts gathered, and there were six-year terms, so he decided to streamline it some. He wrote us—all the members of the Judicial Conference Committee—and told us that he decided to reduce—of course, whatever the chief justice wants to do, for the most part, the Conference goes along with it—reduce it from six-year terms to three-year terms. He sent me one of those letters, and he said that there would be three-year terms. The terms would be three years, and in order to be fair, they would provide that the terms of the present members of these committees would be for a maximum of three years. So they divided them into three parts. One third had three-year terms, one third had two-year terms, one third had one-year terms, and I think there were some who just went off, or were ready to go off anyhow. So the letter he sent to me explained this, and he informed me that he was pleased to announce that I would be reappointed for a one-year term.

So, he said, if you have any questions about this, please write me and let me know. I thanked him. I sent him a letter thanking him for his consideration, and I told him that I don't have any quarrel—some of the people had complained that it was too short a time—I said I don't have any quarrel with the length of time. I will not attempt to challenge what you have done. So far as expressing myself on the downgraded committee structure, I said you know what you can do with that. [Laughs] I left, and I haven't been on a Judicial Conference committee since.