Post #4
During the past week, we’ve all witnessed an alarming and unspeakable violation of the Capitol building. Although I’ve been shaken by this violation, I’ve decided to proceed with this blog as earlier planned.
This is the fourth in a series of posts recalling what it was like to clerk for Judge Julius J. Hoffman from 1967 to 1969.
Some of Hoffman’s Cases
• “Joe Shine”
Hoffman’s first trial after I arrived was a criminal case brought by the feds against a group of defendants that included Joseph Amabile. (I initially assumed that Amabile’s name was pronounced “Ah-mah-bil-lay,” but I can still hear Judge Hoffman’s bailiff calling out the name as though it rhymed with “Oldsmobile.”)
Amabile (known as “Joe Shine”) and a couple of his pals were accused of serious wrongdoing arising out of land-development deals in the western suburbs of Chicago. More precisely, they were accused of conspiracy to violate a federal law because they had interfered with commerce by extortion. “Extortion” is the relevant word here. According to testimony at the trial, one defendant had hit some poor guy in the face and threatened to use a baseball bat if he didn’t cooperate.
At first, I was terrified to sit in the same courtroom with some of these defendants, but they looked pretty subdued, dressed in their expensive suits, seated next to their high-priced lawyers. Judge Hoffman didn’t seem too worried, but then he had an armed bodyguard accompany him to and from the courthouse every day.
When the daily newspapers started running stories about the trial, a major issue arose. The defense lawyers had been opposed to sequestering the jury, but now they began arguing that the published articles were prejudicial to the defendants. They demanded that the judge ask the jurors every day whether they had read or heard any of the prejudicial publicity. Hoffman repeatedly admonished the jurors, each time they left the courtroom, not to read any newspapers or listen to any news about the trial on radio or TV. But he refused to directly question the jurors about the prejudicial publicity. His rationale was that because the defendants had opposed sequestration of the jury, they couldn’t complain that the jurors might be somehow exposed to news about the trial.
Back in chambers, he confessed his real concern. He was worried that, after he had invested several weeks in this trial, even one juror’s admission that she or he had watched a TV news report would force the judge to declare a mistrial. His persistent refusal to question the jurors later became one of the biggest issues on appeal.
After a five-week trial, the jury convicted the defendants. But the appellate court later reversed the convictions. (U.S. v. Palermo, 410 F.2d 468.) Why? Basically because Hoffman had refused to question the jurors about the prejudicial publicity.
Hoffman had gambled and lost. If he had directly questioned the jurors every day, they probably would have denied disobeying his order to avoid seeing any prejudicial publicity. If they had explicitly denied disobeying his order, the convictions would have been upheld.
But because the judge didn’t want to risk any other outcome, his five-week trial was a total loss.
• South Holland
The judge took great pride in a ruling that he believed demonstrated his fairness to minorities.
In 1968, the federal government filed a suit against School District 151 (South Holland and Phoenix, Illinois), alleging discrimination against minority students. Special prosecutors were brought in from the Justice Department in D.C. to try the case, and Hoffman presided over the trial that summer. At the end of the trial, he asked the parties to submit Proposed Findings of Fact and Conclusions of Law. He then took these documents under advisement.
He never followed his usual pattern of asking one of his clerks to assist him in reviewing the evidence or deciding how to rule.
A short time after the end of the trial, the judge announced his decision in favor of the government. In his written memorandum opinion, he followed the government’s submission virtually word for word.
The school district’s attorneys complained. They argued that the judge hadn’t done anything other than rubber-stamp the government’s position.
On appeal, the 7th Circuit affirmed Hoffman’s decision. But the dissenting judge agreed with the defendant’s argument, noting that “the District Court…without changing a word,” adopted every one of the government’s Findings and Conclusions, as well as its proposed Orders.
The case against the school district was unquestionably meritorious. Although I wasn’t asked to review anything submitted by either side, I have no doubt that the U.S. Justice Department produced sufficient evidence to prove its case of discrimination against the school district. And Hoffman was therefore unquestionably right to decide in favor of the Justice Department.
But the case didn’t resemble any other major case I encountered during my clerkship. The judge did not appear to review the evidence or attempt to reach any conclusions other than those offered by the government lawyers. And he didn’t ask his clerks to do so. I think he may have decided, as soon as the case was assigned to him, to rule in favor of the government.
The judge was very pleased with the result. After announcing his decision, he basked in the glow of the favorable publicity that usually escaped him.
One of Chicago’s daily newspapers even wrote an editorial praising him. He had this editorial enlarged and framed, and after he hung it in his chambers, he proudly pointed it out to visitors.
It was clear that, despite the negative publicity he often garnered from other happenings in his courtroom, in his eyes he would now be seen as fair-minded, even “liberal,” thanks to his ruling in favor of minority students in this case.
• Inmates of Cook County Jail
Sometime in 1968, a Chicago lawyer named Stanley A. Bass, who at the time was somehow connected with the ACLU (I don’t recall his exact connection), filed a class-action lawsuit on behalf of the inmates of Cook County Jail, complaining about conditions at the jail. The suit described the horrific–indeed shocking–state of living conditions at the jail, alleging that they were in violation of various provisions of the US Constitution.
This suit was, to my knowledge, the first class-action lawsuit presenting the issues of prison conditions to a federal court.
It also became the first prisoner lawsuit in which a federal court ruled that a class action of this nature stated a claim and therefore would not be dismissed. Inmates of Cook County Jail v. Tierney, No. 68 C 504 (N.D. Ill., Aug. 22, 1968).
I suspect that when the case was assigned to Judge Hoffman, Stan Bass’s heart sank. Aware of Hoffman’s conservative bent, he could hardly hope to get any favorable rulings at the district-court level and probably relied on filing an appeal to get anywhere with his case.
But Stan didn’t count on my being Hoffman’s law clerk. Fortunately for him, that made a difference.
The defendant prison officials filed motions to dismiss the case for “failure to state a claim,” making a number of procedural arguments designed to get the case thrown out of court. A ruling in favor of these officials would have meant the end of the lawsuit.
But instead of quickly ruling in their favor, I gave a lot of thought to what would be the right thing to do. It seemed to me that the inmates had stated a perfectly good claim under the Federal Rules of Civil Procedure. Although I knew that Hoffman wanted to extricate himself from this case, I simply could not bring myself to throw it out.
So after thoroughly researching the court decisions that interpreted the applicable federal rules, I reached my conclusion: The court would be wrong to dismiss the inmates’ case. It was August 1968, and my summer vacation was approaching. After I prepared a lengthy written opinion, I left it on the judge’s desk on a Friday afternoon just before departing for my two-week vacation.
I knew by this time that the judge was loathe to reject any opinion written by his law clerks because that meant he would have to substitute another opinion. To come up with his own opinion would require that he do some research and writing on his part. But I nevertheless felt sure that he would somehow avoid going forward with the inmates’ claims.
I pictured myself returning from vacation and confronting an angry judge who would insist that I throw out my opinion and write a new one stating the exact opposite.
Imagine my shock when I returned from vacation to find that, while I was out of town, the judge had read my opinion, word for word, from the bench. I felt dizzy with power, knowing that my efforts had kept alive a case he was eager to throw out, but a case that truly belonged in the courts.
In the ruling, I wrote, in part: “Although it might, indeed, be the easier course to dismiss this …complaint…, we cannot flinch from our clear responsibility to protect rights secured by the federal Constitution.”
I hoped that the ruling would lead to improved conditions for inmates at Cook County Jail, and I believe that it may have. The case was later settled when the defendants assured the court that they were making fundamental changes at the jail.
Although the judge read the opinion from the bench, he was adamant about denying permission to publish it. But his remarks from the bench were a public record. The ACLU wanted to let other lawyers know about the ruling, so it purchased the court reporter’s transcript and distributed copies of it. These copies made their way around the country and were frequently cited, as an unpublished opinion, in the many prisoners’ cases that followed.
One of the highlights of my legal career is that I wrote the first ruling upholding prisoners’ rights in a case of this kind. And that my ruling went on to inspire many cases that followed in its wake.
When I later worked as a staff attorney at the National Health and Environmental Law Program, located at UCLA School of Law, I did further research into the issues surrounding prison health care, and I published an article that explored these issues, “The Captive Patient: The Treatment of Health Problems in American Prisons,” 6 Clearinghouse Review 16 (May 1972).
Postscript: Stan Bass later became a staff attorney with the NAACP Legal Defense and Educational Fund, Inc. When he filed an amicus brief on behalf of that organization in a class-action prisoner case (presenting other issues) in the U.S. Supreme Court (Goosby v. Osser, No. 71-6316, 409 U.S. 512 (1973)), Stan cited the ruling in Inmates of Cook County Jail as support.
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