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Temper, temper

In some ways, John Henry McBryde, federal district judge for the Northern District of Texas, Fort Worth Division, seems destined to spawn a constitutional crisis. Though he was born in Jackson, Mississippi, McBryde grew up in Fort Worth and in many ways personifies the mythical Texan: He is tall, dark, raw-boned, and gravel-voiced, with an independent streak as wide as the Gulf of Mexico.

Seated in his elevated, fruitwood-inlaid throne on the fourth floor of Fort Worth's art-deco federal courthouse, surrounded by WPA-era murals depicting "The Taking of Sam Bass" and "Texas Rangers in Camp," McBryde seems at once terrifying and oddly comforting. His magisterial black robe, stern countenance, and habit of staring over dark-rimmed bifocals make him look like a cross between Zeus and Big Tex.

Off the bench, in person, he more personifies Fort Worth: elegant, dapper, even charming, surrounded by antiques and art (Western, of course). Despite rumors to the contrary, he does have a sense of humor--though it runs more toward wit, with its sharp edge and intense civilization, than toward irony or satire. (A judge on the U.S. 5th Circuit Court of Appeals introduced a question to McBryde--under cross-examination by a panel of his superiors and with his judicial career hanging in the balance--by calling it a "rambling one." "Well, I will give you a rambling answer," McBryde replied.)

At 65, he is a wealthy man, with a personal net worth, according to the most recently available disclosure statements, somewhere in the range of four to six million dollars. Like many Reagan-Bush appointees to the bench, he tends to be a law-and-order man. He is not a favorite of the defense bar; the Fort Worth federal public defender's office, for example, dislikes him because he regularly gives maximum sentences in parole revocation cases.

But it would be a mistake to assume he is an ally of the federal government. In fact, a review of his opinions might lead one to conclude that McBryde doesn't much like the feds. Or, at least, in the words of one lawyer close to him, "He doesn't always think the federal government is right."

And that, as much as anything, may explain why John Henry McBryde--wealthy, brilliant, powerful, and protected by Article III of the U.S. Constitution--is enjoying the dubious distinction of being perhaps the first federal judge in the 210-year history of the Constitution to be secretly tried not for high crimes and misdemeanors, not for engaging in ethically smelly shenanigans, not even for being mentally or physically disabled, but for lacking a proper "judicial temperament."

McBryde is a man under siege. His attackers include a whole bunch of mad-as-hell lawyers, among them a panel of 5th Circuit judges and the U.S. Justice Department. Together, they seem to be attempting to accomplish by the back door what they could never do by the front: impeach a federal judge, in substance if not in form, on charges that amount to having a particularly nasty temper, even for a judge. Although the complaints themselves are not publicly available, the Justice Department apparently is asking that McBryde be prohibited from hearing future Justice Department cases. Meanwhile, a smattering of other aggrieved lawyers and public officials want him prohibited from hearing cases. Period.

Of course, John McBryde being John McBryde, he's not taking this lying down. Indeed, if there ever was a worthy opponent, a perfect person to take on the executive branch as well as the federal judiciary, it is McBryde.

In the two years they have been sparring, McBryde and the judicial council of the 5th Circuit--a group of 19 federal judges that oversees the administrative business of the federal courts in Texas, Mississippi, and Louisiana--have managed to inflict much damage. Things got so hot last fall that McBryde and the judicial council filed a highly unusual set of civil suits against each other, suits that, on orders from Henry Politz, chief judge of the 5th Circuit, are so far under seal it's impossible even to come up with case numbers.

And that's just the two pending in the lower federal courts. In addition, there are at least three "mandamus" actions asking the appeals court to make various officials do what they ought. One, a well-publicized case decided last summer, ordered Jerry Buchmeyer, chief judge of the Northern District of Texas, to hand back two cases he had taken away to punish the maverick McBryde. The other two, both under seal, apparently ask the appeals court to order officials, among them some in the Justice Department, to turn over evidence to McBryde--including documents that, according to a well-placed source who is not a McBryde fan, show that senior Justice Department officials have less-than-clean hands in this affair. ("Dirty laundry of gargantuan proportion," is how this person describes the goods.)

 

Not surprisingly, Politz is determined to bury this mess. Although the statute under which McBryde is being tried permits the judicial council proceedings to be made public if McBryde consents, as he has repeatedly done in writing, Politz is determined to decide McBryde's fate in a top-secret, star-chamber proceeding. Politz is so worried that reporters might get wind of what is really going on that he ordered them removed from public areas of the 5th Circuit Court of Appeals during the first week of McBryde's trial, which took place August 25-29 in New Orleans. (At least one was detained by the marshals after refusing to leave.) Politz has admonished witnesses in this matter not to speak with the press about the proceedings. (Politz did not return calls seeking comment.)

As most of the 20 sources interviewed fear losing their right to practice in the federal courts if they are quoted by name, most have requested and received guarantees of anonymity. Thus a word about the Dallas Observer's reporting seems in order. Nothing has been reported unless it was verified by at least two, and usually three, sources with first-hand knowledge, or it appears in a document from one of the lawsuits or administrative hearings.

According to the small fraction of pleadings and transcripts that are public, as well as the allegations of knowledgeable insiders, one or more Justice Department officials may have lied in their zeal to punish McBryde. Already, back at headquarters in Washington, D.C., the Justice Department has opened--and closed, and in one case, reopened--at least three investigations into whether its prosecutors committed professional misconduct in the course of this folderol.

For an individual who has taken on not one but two branches of the federal government, John McBryde has not fared badly so far, which is not to deny that he may have committed a suicidal act of courage. "It just gets stranger and stranger, and bigger and bigger," marvels one lawyer who has had a ringside seat at the brawl for more than two years. "I predict that John McBryde will spend his entire personal fortune fighting these guys."

When they have covered the story at all, the local media have played it as a mildly interesting but not too important tale of judicial squabbling. ("Call it the federal judiciary as dysfunctional workplace," wrote the Fort Worth Star-Telegram.) In fact, this case has the potential to shake the core values of the republic, to weaken Article III of the U.S. Constitution.

The framers of the Constitution intended the judiciary to be equally immune from meddling by the legislature, by the executive branch, and by combatants on Crossfire. To remove them from the everyday fray and from the influence of those infamous "factions," Article III grants federal judges life tenure. Of course, anything this good has a catch, so there is a constitutional caveat: Federal judges are untouchable only during "good behavior," a term that for 200 years was understood to mean no felonies or serious misdemeanors.

This interpretation has raised problems over the years. For one thing, demigods or no, judges tend to be far from spring chickens when they ascend to the federal bench, bringing with them all the baggage of old age: insanity, Alzheimer's, and dementia. For nearly two centuries, such cases were dealt with discreetly, mostly through peer pressure, retirements, and the intervention of higher-ranking judges. Even Mount Olympus has its pecking order, and the federal courts are no exception. The lower federal courts--the district courts--are overseen by 12 circuit courts of appeals.

More importantly, for purposes of this story, the appeals courts also have administrative duties over lower federal courts, which they delegate to governing bodies known as judicial councils. By statute, the judicial council of each circuit consists of an equal number of appeals court and lower federal court judges, plus the chief judge of the circuit. Thus, while the judicial council for a particular circuit is not the same thing as the appeals court for the circuit, there is some overlap--notably, the chief judge, who sits as head of both the appeals court and of the circuit's judicial council.

Turn back to 1961, when a now-deceased federal judge from Oklahoma named Steven Chandler started behaving downright oddly. For four years, his behavior escalated: He refused to show up, berated litigants, and ultimately faced criminal charges of "conspiracy to cheat and defraud the state of Oklahoma." The charges were later dismissed, but in 1965, Chandler's actions came to the attention of the appropriate judicial council, which issued an order taking away Chandler's cases. Being a hardheaded sort, Chandler fought all the way to the Supreme Court. His argument, in essence, was that the 10th Circuit council's order constituted impeachment of a federal judge, in content if not in form--a right that belongs only to Congress, following House impeachment and full Senate vote. (It is a right Congress exercises sparingly; since 1787, when the Constitution was sent to the states for ratification, only 11 judges have been impeached by the House, and only seven of those convicted by the Senate.)

 

No fools, the nine Supreme Court justices knew a constitutional crisis to sidestep when they saw one, and accordingly found an excuse to bounce Chandler right back down to the 10th Circuit. Cooler heads eventually prevailed; Chandler got his cases back and behaved nicely for a short while, then retired like everyone wanted.

In 1980, however--in the wake of the crisis--Congress passed the Judicial Disability and Retirement Act, which was designed primarily to solve mental cases like Chandler's. It is this statute that has been invoked against McBryde and his "judicial temperament."

John McBryde is the quintessential self-made man: born poor, raised by his mama. His law clerks say he has told them he had a job "ever since he can remember," among them throwing papers and peddling Bibles and cookbooks door-to-door. He attended Fort Worth's Paschal High and Texas Christian University before going to the University of Texas Law School, from which he graduated in 1956.

He met his wife, Betty, while she was in college and he was in his first year of law school. Betty stayed home and raised their three children while McBryde went into private practice at what eventually became Cantey, Hangar, an old-line Fort Worth insurance defense firm. He left in 1969 to start his own firm. In private practice, he displayed all the traits he would carry to the bench: a first-rate mind, a willingness to work harder than anyone else, and near-obsessive preparation. (His tendency to bury the other side in paperwork earned him the nickname "the paper tiger.")

By the late '80s, he had gone about as far as he could in private practice. Wealthy, bored, and casting about for some way to give back to the profession, he lit upon the idea of becoming a federal judge. He took it up with his friend Judge David Belew, who took it up with friends, who took it up with Sen. Phil Gramm. In 1990, McBryde received a nomination from President Bush.

Once appointed, McBryde quickly became known as a hanging judge--only a lawyer usually dangled from the noose. His law clerks from the time recall that when McBryde took over he had a 500-case backlog, and that he worked a seven-day week, 14 hours a day, until it was caught up. Whatever the reason, he moved his cases, and heaven help the lawyer who wasn't quick enough--or, worse--wasn't prepared. Lawyers began to complain about his demands and about the severity of his on-the-bench demeanor, not to mention the severity of his sanctions. He fined lawyers, rebuked lawyers, insulted lawyers. He accused them of dishonesty, sent them to remedial reading school and to ethics school, jailed them for contempt, and even banished them from his courtroom. During trial, he kept lawyers on the tightest of leashes, strictly limiting openings, closings, jury selection, and even witness examinations.

Of course, trial lawyers as a class include more than a few bombasts and hams. Many understandably hated McBryde. But even well-intentioned types who failed to pick up on the judge's quirky rules could end up McBrydized. "He was pretty tough," says an assistant U.S. attorney in Fort Worth. "A lot of lawyers who don't have a lot of trial experience and couldn't read his personality didn't survive."

Paradoxically, McBryde's law-and-order tendencies were tempered by an almost philosophical mistrust of federal power and privilege. Early on, he showed an unusual reluctance to grant the usual deference to the feds. In a famous opinion that caused great tooth-gnashing in Washington, D.C., McBryde ordered that, just like private litigants, the federal government must come to mediations with authority to agree to a settlement on the spot. If that meant putting the head of, say, the FDIC on a plane for Texas, by God, she'd better book a flight. (Eventually, the bureaucrats simply sped up their internal settlement processes, figuring out what dollar amount they would approve before the mediation, not after.)

In another infamous ruling, he rejected the government's plea bargain in a drug case, claiming the U.S. Attorney's Office had offered a drug dealer too sweet a deal, and ordered that the case be tried. The assistant U.S. attorney trying the case defied McBryde, turning in a witness list without any names. In response, McBryde banished the prosecutor from his courtroom, ordering then-U.S. Attorney Marvin Collins to try the case personally. The 5th Circuit reversed that one on appeal, finding that McBryde had invaded the province of the Justice Department.

 

"He never developed that trust with the Fort Worth [U.S. Attorney's] office," says one Dallas assistant U.S. attorney who has appeared before McBryde. "And there's no doubt that the Justice Department has a lot of power. But sometimes, they [judges] just have to trust us. Because they have to understand that in the scheme of things, we know what we're doing. He never trusted us with that power."

Even McBryde's detractors, however, concede one thing: He was scrupulously fair. "He's an equal-opportunity tyrant," says one assistant U.S. attorney. Of course, when it comes to kissing up to federal judges, lawyers make Eddie Haskell, the famous brown-nose on Leave It to Beaver, look like an amateur; they toady up to a judge's face and can be downright vicious behind his back. So when McBryde began showing up on annual Texas Lawyer surveys of "most despise[d]" lawyers, McBryde seems to have blamed it on what he saw as the paper's vendetta against him. Moreover, the judge has never lacked genuine admirers. Many of them say they believe he was on a Quixotic mission of sorts, a one-man committee for improvement of the legal profession.

But his rocket docket may have caused dissatisfaction not only at the bar, but possibly also among fellow jurists. (In a transcript from an October 1995 hearing, 5th Circuit Judge Robert M. Parker admits that McBryde has "certainly done better with [the] docket than anybody...so professional jealousy could be a factor.") Worse, at least in the clubby world of federal judges, he skipped social functions among fellow jurists in favor of work. In rare interviews, he explained that he was willing to be unpopular in the interest of doing his job.

In 1993, he found out just how unpopular he was. In 1995 testimony before the judicial council, McBryde tells how he discovered the problem: "Sometime in late [1993] a lawyer sent me a thing that had been published on a bulletin board in a county court. It was called 'McBryde's Song' at the top by Jerry Buchmeyer, something to be performed to 'King Herod's Tune,' and I understand that [it had] something to do with some theatrical performance. I don't know. It was very derogatory. It was just about as derogatory as a person can get. Maybe it's not my nature to pick up the phone and call people and that seems to be a question, why I didn't do that with [Judge Buchmeyer], but I didn't pick up the phone. I just waited to see what I could learn."

He learned not only that Buchmeyer had written the song, but that the judge's wife had performed it at an annual bar revue. The ballad went thus:

"Lawyers I am overjoyed
That you're all here today.
Now listen very closely
To what I've got to say.
Stupid lawsuits, motions wasting time,
That's gonna stop, 'cause I'm your God,
And I'll treat you just like slime.
Yes! I'm the Judge,
I'm the Great John McBryde,
Miss a deadline like a fool,
I'll send you to reading school..."

"Maybe I shouldn't have," the judge continues, "but I brooded on that awhile. Finally, I wrote Judge Buchmeyer a personal and confidential letter...telling him what I thought about it and him, and I received a response...Sarcastic, in general, is how I would characterize it."

In 1995, Jerry Buchmeyer, a 1979 Carter appointee, became chief judge of the Northern District of Texas by virtue of seniority. As McBryde's testimony indicates, Buchmeyer is McBryde's polar opposite. A Dallas native, the 64-year-old Buchmeyer is short, blond, and balding, his roundness emphasized by John Denverish spectacles. He is known for his wit--he writes a humor column for the bar journal--as well as for his informal, easygoing nature. Buchmeyer also is well known for his liberal leanings. In 1982, he penned the opinion in Baker vs. Wade, the case that overturned Texas' sodomy law (Buchmeyer's opinion was overturned on appeal). He has been presiding over the Dallas public housing desegregation case since 1985 and has earned the ire of North Dallas homeowners by ordering public housing to be built in white suburbs. He is proud of his reputation as Dallas' liberal gadfly.

Not coincidentally, he is the closest thing to a First Amendment absolutist that can be found on the federal bench today. A 1992 Buchmeyer opinion is typical of his First Amendment rulings; in it, Buchmeyer upheld the media's right to challenge the sealing of court pleadings, noting that "the First Amendment guarantees the press and the public a general right of access to court proceedings and court documents...denial of the right is permitted only upon a showing of compelling government interest." And that makes his subsequent role in covering up the arguable misconduct of public servants all the more distressing.

 

"Probably all this would never have happened if [McBryde] hadn't attacked Nancy Doherty," says one assistant U.S. attorney. "This whole thing can really be laid off to that." Indeed, the two cases that prompted the brouhaha are themselves unimportant. It is the reactions of the judges, Justice Department, and other public servants that created the crisis.

The Satz case was a criminal matter, a boiler-room scheme involving Michael Satz and several other defendants. McBryde presided over the January 1995 trial, read the jury's judgment of guilty, and scheduled Satz for sentencing on April 28, 1995.

The Torres case was a civil matter, a suit arising out of a flash fire that killed Raimundo Torres, an employee of Trinity Industries. It was brought on behalf of Grecia Torres, a minor and a citizen of Mexico, and settled in 1991. Pursuant to the settlement, $40,000 went into the registry of the court, to remain there until Torres reached age 18.

McBryde's final order required the clerk of the Northern District, Doherty, to invest the money in standard, interest-bearing securities. It wasn't done. Instead, Torres' counsel, Frank Branson, asked a deputy clerk to hold depositing the money until he set up a special trust that would allow the Torreses to avoid taxes on it. According to court records, Branson's office never followed through. The deputy clerk left. The money was never invested, and neither was the oversight discovered until March 1995, when a routine audit of the clerk's office picked up the $40,000 lying around gathering no interest in contravention of the fire-breathing McBryde's order.

On March 17, 1995, a Fort Worth deputy clerk brought Doherty the bad news. A tiny, nervous woman with short white hair, a shy smile, and spectacles that magnify her big brown eyes, Doherty has been district clerk for the Northern District of Texas for 13 years. She is a much beloved figure, and with good reason, for Doherty runs what may well be the most efficient--and almost certainly is the most helpful and friendly--federal clerk's office in the country.

Doherty's first instinct was to solve the problem, to present a cure at the same time she apprised the judge of the difficulty. So, Doherty contacted the general counsel of the Administrative Office of the United States Courts, the mothership of the federal clerk bureaucracy. They told Doherty that the money could only be made up if Torres' attorneys filed a claim under the federal Tort Claims Act. At Doherty's instructions, a clerk sent Torres' attorney a letter admitting fault and promising to work with the attorney to remedy the problem.

McBryde was not pleased. What he understood was that the Administrative Office had a conflict of interest. Since Torres' own attorneys also shared blame for the error, Doherty's letter could be viewed as a collusive attempt by self-interested parties to impose a solution that might not be in Torres' best interest. "I think her first obligation was to come to me and explain to me that the order had not been complied with, and be guided by what I thought was available," McBryde later told the judicial council.

On March 30, 1995, he issued an order stating he was "disappointed that there would even be a suggestion" that the young Torres would have to go through the drawn-out tort claims process. He ordered Doherty to provide him several categories of information, and seemed to suggest that Doherty should just cough up the missing interest--a suggestion Doherty apparently took to mean out of her own pocket.

Things escalated rapidly when Doherty consulted Buchmeyer about what to do. Buchmeyer called Torres' lawyers and convinced them to seek relief under the Tort Claims Act. Then Buchmeyer ghost-wrote Doherty's reply to McBryde. Given Buchmeyer's and McBryde's talent for punching each other's buttons, it is perhaps no surprise that the Buchmeyer-Doherty letter angered McBryde. Not only did McBryde view it as incorrect in form--he contemplated Doherty filing a McBrydesque, formal pleading, and instead he got a Buchmeyerian, informal letter--but the letter could be (and was) read as mocking; it informed McBryde that the clerk was "disappointed" in him, too. (In a passage foreshadowing the hypocrisy to come, the ostensibly First Amendment-loving Buchmeyer's letter also suggested that public servants and officials try to avoid "any negative publicity that could result from a public record of this matter.")

McBryde shot back an order accusing Doherty of being "unprofessional," "disrespectful," and "insolen[t]." Doherty received it during a meeting with the Dallas judges, and started to cry. Before the meeting was over, the Dallas judges seemed to have been pretty much aligned against McBryde.

A few hours later, U.S. Attorney Paul Coggins and an assistant asked to see Buchmeyer. It seemed that McBryde had behaved unreasonably toward yet another lowly public servant, this time an assistant U.S. attorney from Arizona named Darcy Cerow, who was involved in an uproar surrounding the Satz sentencing. Coggins wanted Buchmeyer to call Judge Politz, the 5th Circuit chief, to get Politz to have an appeals court judge standing by; McBryde, it seemed, was about to send Cerow to the slammer.

 

The tale Buchmeyer heard was that McBryde had unjustifiably accused Cerow of lying and had tried to bully her into violating an Arizona judge's conflicting order. Unfortunately for everyone, there turned out to be another side to the story.

A few months before his January 11, 1995, conviction in Fort Worth, Michael Satz had been convicted of running an identical easy-credit-repair telemarketing scam in Arizona. Cerow was the assistant U.S. attorney who tried Satz and his cohorts in Arizona, and she wasn't done yet. She was determined to nab the telemarketers who got away. In March, she got a break--the Schwartzes, three brothers high in the boiler-room hierarchy, agreed to become informants. Cerow took their plea bargains and, along with a postal inspector named Rex Whiteaker, debriefed the brothers. They indicated Satz was a bigger fish than he had claimed. When Arizona Judge Paul G. Rosenblatt accepted the Schwartzes' pleas, he entered an oral order "sealing" the plea agreements, or hiding them from public view. The order does not appear to have ever been reduced to writing, other than as a few cryptic words ("govts oral m/seal granted") on a routine "minute order" form, which court reporters file in federal cases to indicate that a hearing took place.

None of this Arizona activity need have affected Satz's Fort Worth sentencing, except that the Justice Department wanted it to.

On April 4, Dallas Assistant U.S. Attorney Phil Umphres asked to postpone Satz's Fort Worth sentencing until after the Arizona sentencing. Among other reasons, Umphres revealed, the brothers Schwartz were telling tales that might add to Satz's sentence. But there was a question whether, under double-jeopardy rules, the same conduct could be taken into account in both the Arizona and Texas sentencings. Because the 5th Circuit had said it could, sentencing Satz in Arizona first and then in Texas would allow the government to scuttle an appeal Satz might have if the sentencing occurred the other way around.

The request was the sort of manipulation most federal judges would have gone along with, but not McBryde. To him, the attempt to deprive Satz of his double-jeopardy argument smacked of prosecutorial overzealousness and unfair advantage-seeking. He indicated he was going forward, and ordered Cerow and Whiteaker to turn over all information they had that might be relevant to sentencing.

Postal Inspector Whiteaker's detailed notes reveal that the Arizona U.S. Attorney's Office dug in too. Cerow instructed Whiteaker to send his notes and other information to her, so that they would remain safely in Arizona. Whiteaker complied, sending Umphres a letter saying Whiteaker would not follow McBryde's order to turn over information. Aware of McBryde's reputation, Umphres spotted the coming disaster and notified McBryde. McBryde ordered Cerow and Whiteaker to show up in his courtroom on April 24, 1995, bearing all the information they had that might be relevant to Satz's sentencing.

Cerow and Whiteaker showed up, but the information stayed in Arizona. At least, that's what Cerow testified during the three-day contempt hearing that followed. Yet, at the last minute, she seems to have changed her story about why she was refusing to comply with McBryde's order. During the contempt hearing, she claimed she could not comply because Arizona Judge Rosenblatt had entered a mysterious sealing order in a case she refused to identify. (She turned out to be relying on the minute order in Schwartz.) McBryde didn't buy it. (And, as Whiteaker's notes reveal, neither did the Dallas U.S. Attorney's Office.) At the conclusion of the hearing, Judge McBryde entered a series of findings that Cerow, at least, had lied about the existence and scope of the "sealing order," thereby engaging in prosecutorial misconduct. Rather than toss her in the clink, though, McBryde ordered the Justice Department to open a criminal investigation.

It was a spectacular predicament for Justice. Umphres was maintaining that both Cerow and Whiteaker had lied, and Whiteaker, at least, was making the same allegation in return, accusing Umphres of lying. For their part, both Arizona U.S. Attorney Janet Napolitano and Coggins, the Dallas U.S. attorney, would have to stand behind their soldiers or risk losing the confidence of their troops. Now the ethics police back at Justice would have to choose between the Dallas and Arizona fiefdoms.

Instead, the Justice Department appears to have decided it was time to get rid of The Honorable John McBryde. Together, Coggins and Napolitano filed a complaint under the Judicial Conduct and Disability Act, the statute enacted as a result of Judge Chandler.

 

The statute provides that judicial councils may punish judges for wrongdoing if they are found to be "an impediment to the efficient administration of justice." Most councils have been careful to restrict the statute's use to cases of real misconduct or mental or physical infirmity, in part because of its potential for wreaking constitutional mischief. The Justice Department has not been so cautious. Although a Justice Department spokesman says they do not keep statistics showing the number of complaints Justice has lodged against federal judges, they appear to pull this trick out of the quiver with some frequency. A database search reveals at least nine cases where a federal judge has resigned, has had cases removed, or has been impeached as a result of Justice Department action--an amazing statistic, since the search reveals only 12 such cases since 1980. Most of these, however, are distinguishable: They involved allegations of criminal misconduct, ethical lapses, and in two disturbing cases, a penchant for making biased or bigoted remarks.

Still, McBryde's case was different altogether. He is no crook, no age-addled fool, no doddering old curmudgeon with a bad ticker. So when Justice filed its complaints against Judge McBryde, it picked its biggest fight to date.

On September 1, 1995, Justice Department headquarters signaled it was willing to go to the mat over the case of McBryde; Frank Hunger, head of the civil division, filed yet another complaint against McBryde with the 5th Circuit. It had a couple of important allies who had tired of what they viewed as John McBryde's uncollegial behavior: Jerry Buchmeyer and Henry Politz.

The U.S. Department of Justice is a creature of the executive branch, charged with enforcing the nation's laws. Thus, to ask a judge just to "trust" a federal prosecutor is, in some sense, to ask a federal judge to surrender turf. Not surprisingly, judges and prosecutors occasionally fight over the property line. McBryde's decision in the drug-dealing case--where he refused to approve a plea bargain--is an example. Since the judiciary has the right to approve or disapprove pleas, and since Justice has the right to determine whether to try a case, it's hard to figure out where one realm begins and the other ends.

Moreover, for the last 20 years, the Supreme Court has been granting the Justice Department a myriad of easements--to the point that many commentators believe that the Justice Department is in fact more powerful than the federal judiciary. Needless to say, this notion isn't shared universally. "Did you wake up on the Planet Bizarro this morning?" says Coggins, by way of response to the suggestion.

Nevertheless, during the '80s and '90s, such turf battles seem to be arising with increasing frequency, and Justice appears to be winning more than a few. In the 1989 case U.S. vs. Isgro, for example, a Los Angeles federal judge dismissed a money-laundering case after an assistant U.S. attorney intentionally failed to give the defense so-called Brady material. (Under the Supreme Court's Brady and Giglio decisions, federal prosecutors must provide the defense with material that tends to exonerate a defendant.) The judge's dismissal prompted a whole series of trips up and down to the court of appeals, which in the end ruled that the trial judge was right about the government's conduct but wrong about available sanctions. The feds got to try their case, and, in a final slap, the appeals court ended up removing the trial judge.

The Justice Department's annual reports to Congress show that such cases of prosecutorial misconduct are on the rise. From 1985 through 1991, the Justice Department's in-house ethics police, the Office of Professional Responsibility, asked three or four prosecutors a year to leave because of findings of misconduct. By 1993, that number had jumped to more than 20 a year. The Justice Department attributes the numbers to an increase in hiring of federal prosecutors. But, as many observers have noted, a law-and-order, get-the-bad-guys-at-any-cost attitude in the Reagan, Bush, and even Clinton Justice Departments hasn't helped matters.

The judiciary is supposed to act as a referee between the state and the individual, but, given decisions like Isgro, ruling the state out of bounds brings up difficult issues, like what penalty to impose. As a practical matter, federal judges have an increasingly narrow range of options. And there are personal relationships involved; U.S. attorneys and federal judges are usually pretty tight. Coggins' trip down to Buchmeyer's chambers to grease the wheels of justice for Cerow is an excellent example of how the system actually works.

 

During six years on the bench, however, McBryde has shown himself to be unusually willing to question the Justice Department. Sometimes he's been upheld on appeal; sometimes he's been slapped down. That hasn't seemed to faze him, however.

In his 1995 testimony before the judicial council, Buchmeyer related what happened after his visit from Coggins. "It was the next morning when my brilliant thoughts occurred, and I said, Hey, I've got the right to take that case away from him, actually, both of them. So, then I called Judge Politz the next morning and reported to him what I was going to do."

Politz apparently approved, for the next day Buchmeyer transferred Torres to his own docket. In what would become a recurring pattern, he immediately ordered the case sealed (without notice or a hearing). Buchmeyer then scribbled "vacated" atop McBryde's scathing March 30 order. (In his testimony before the judicial council, Buchmeyer testified he took these actions because he feared Doherty would resign; his correspondence, however, reflects a preoccupation with "avoid[ing] any publicity and any further damage to the reputation of our Court.")

On May 1, after again consulting with Politz, Buchmeyer transferred Satz to himself, sealed the case (again without notice or a hearing), and vacated McBryde's order finding Cerow and Whiteaker in contempt. (Unfortunately, he did so before McBryde had a chance to formally enter Satz's sentence, which he had pronounced from the bench on April 28.) Buchmeyer and McBryde exchanged a series of orders cleaning up the sentencing glitch and purporting to vacate the other's orders, until Buchmeyer finally ordered Doherty to file only his own orders in the case.

On July 21, Buchmeyer issued an order clearing Doherty of "insolen[ce]" and various other wrongdoing in Torres. Buchmeyer's all's-well-that-ends-well order notes that Grecia Torres' lost interest was to be restored; her claim had been settled, for $5,600, and the payment approved by Clerk Central, the Administrative Office.

In Satz, he entered a finding that Cerow's and Whiteaker's statements had been "entirely truthful," thus solving the Brady problems McBryde's order had created. Under Brady, the Justice Department and the Postal Service would arguably have to disclose McBryde's finding that Cerow and Whiteaker had lied to the defense in any future criminal cases they touched--as a practical matter, ending their careers in criminal law enforcement. (Whiteaker's employer, the Postal Service, transferred him out of criminal inspections, and he has not returned to this day. Cerow's employer, the Justice Department, took no similar steps.)

Meanwhile, McBryde, apparently unaware of Politz's involvement in the affair, decided to seek help from the judicial council. McBryde filed a "request for assistance" with the council, asking it to give him back his cases. Buchmeyer parried with his own formal request for the judicial council to approve his actions--actions that Politz, head of the council, had of course already verbally approved.

In September 1995, the Judicial Council notified McBryde that it had formed a special investigative committee to look into the complaints against him. The special committee consists of five members: W. Eugene Davis and Robert M. Parker, who sit on the 5th Circuit; William H. Barbour Jr., a district court judge from Mississippi; Edward C. Prado, a district judge from San Antonio; and Politz. The formation of a special committee itself was a bad sign; according to statistics from the Administrative Office of the U.S. Courts, it occurs in response to less than 1 percent of complaints made under the Judicial Conduct Act.

A few days after the committee's formation, Buchmeyer, McBryde, and Politz met in Politz's chambers to discuss procedures for resolving the judges' motions before the judicial council. Politz made his views very clear: He wanted McBryde to withdraw his request for assistance. Indeed, he offered McBryde a trade of sorts; if McBryde would withdraw his request for assistance asking that the cases be returned, Politz would limit the matters the special investigative committee explored. Otherwise, McBryde's entire judicial career was fair game. McBryde rejected the deal. At the conclusion of McBryde's October 1995 testimony before the judicial council, when Politz asked him if he had any other comments to make, McBryde addressed Politz directly.

"Judge Politz," said the deep-voiced Texan, "from the time I met with you in your office with Judge Buchmeyer, I sensed that you highly disapprove of my conduct. You indicated that to me at the time. You told me at the time that you hoped we could work this out within the district, and I was willing to try to do that, and that didn't work out...[Y]ou indicated to me if I were to persist in my thought that it be presented to the council that, in effect, my entire career as a judge would be explored. It appears that that's what's happening."

 

"Judge Politz," observes one lawyer who has seen the transcript of the exchange between McBryde and Politz, "is a man of his word."

McBryde wasn't the only person to testify before the special investigative committee that October. Cerow did too, as did Buchmeyer and Doherty. The committee also received evidence from senior Justice Department officials--although it is unclear whether they testified in person or in writing. (McBryde was not allowed to be present during the testimony against him.) Their testimony is under seal, but bits and pieces of what they said can be gleaned from other documents. Buchmeyer, Doherty and Frank Hunger, head of the civil division of the Justice Department, all represented that the Torres case had been "settled," and that young Grecia Torres would receive $5,600 in interest--a figure they maintained would make her whole.

Meanwhile, Arizona U.S. Attorney Napolitano--Cerow's boss--apparently told the judicial council that Cerow had produced all of the information McBryde ordered, including plea agreements, "factual resumes," and other materials under seal in the Schwartz cases.

"I want to suggest to you," Politz told McBryde that same day, "that the attorney general's folks, the U.S. attorney from Arizona, has said with specificity that the matters that were under seal were sent to your court, were ordered released by you, and interfered with their efforts to close the circle on some folks that they were trying to get."

In response, a clearly puzzled McBryde struggles to make sense of what Politz is saying: "Judge, is that something they said in writing or something they said at the hearing I held, or when was it said? Where was it said?"

"I'll ask you a simple question," says Politz. "Did you ever order released materials that the government furnished you and brought to your attention had been under seal in Arizona and was under seal in Arizona?"

"Not that I'm aware of," McBryde replies
"Well, someone is not telling us the truth," Politz announces. "We are going to find out what the truth is. Any further questions?"

Despite Politz's vow, the judicial council didn't wait to get to the bottom of matters before censuring the heterodox McBryde. The very next day, on October 20, the judicial council took the extraordinary action of publishing an opinion that called McBryde "an impediment to the efficient administration of justice." They specifically found that "Judge McBryde's attack on AUSA Darcy Cerow and Postal Inspector Rex Whiteaker and his accusations against them of lying and contempt of court were baseless, threatening irreparable harm to the reputations and careers of both Ms. Cerow and Mr. Whiteaker. The record and our investigation confirm that [their] statements and conduct...were truthful, professional, and appropriate under the circumstances."

The judicial council ordered that the cases stay on Buchmeyer's docket. But McBryde wasn't done yet. In November 1995, McBryde decided to seek relief through the regular court system. His application to the full 5th Circuit Court of Appeals asked a panel of appeals court judges who weren't members of the council to order Buchmeyer to give him back the cases. Both sides armed themselves for nuclear war. The judicial council hired former Watergate Special Council Robert Fiske. McBryde, in turn, hired William Jeffress, a high-profile, not to mention high-priced, Washington, D.C.-based lawyer.

Jeffress and Fiske--a former U.S. attorney himself--slugged it out in briefs for 20 months. It got brutal. In one brief, Jeffress noted that if the judicial council was going to start punishing judges "on complaints that judicial conduct was 'abusive' or 'intemperate,' its workload may become quite burdensome." A footnote contains Almanac of the Federal Judiciary entries for several council members--entries describing them as "rude," "hostile," "mean," "overbearing," "mercurial," "dictatorial," and even "grumpy."

Meanwhile, McBryde's lawyers set about getting to the bottom of events, in the process unearthing a disturbing series of revelations. It seemed that some of the representations made by the witnesses against McBryde weren't quite true. The Torres case hadn't quite gone away, after all. In a near Marx Brothers send-up of bureaucracy, the lawyers at the Administrative Office had shipped the Torres "settlement" to the lawyers at Justice, seeking approval of the $5,600 the Administrative Office already had approved. Justice kicked the settlement back to Clerk Central, the Administrative Office, rejecting it as being $700 too high. In a December 1995 letter, the head of the torts division at Justice stated that while he was "aware of the tangled history of this claim and its origins," he was nevertheless compelled to reject the claim. Just two months later, on February 1996, his boss, Frank Hunger, swore in a 5th Circuit pleading that the Torres case was "settled."

That wasn't the worst part. Buchmeyer was copied on all correspondence. So last July, when Grecia Torres' attorneys were forced to file a lawsuit against Doherty, they did so in Dallas, and on Doherty's instruction, the case was assigned to Buchmeyer, bypassing the normal system of random assignments. Once it landed in his court, Buchmeyer did not appoint an ad litem, or independent party, to determine what was is in Torres' best interest; instead, he continued to let Frank Branson's office--the very attorneys who had failed to set up the trust--represent Torres. They settled the claim for $4,900.

 

McBryde's ever-industrious lawyers flew to Mexico and dug up Sanjuana Torres, Grecia Torres' guardian, who gave an affidavit stating she'd been kept almost totally in the dark, and in any event had never authorized the settlement. (Branson did have the decency not to deduct the quarter of the $4,900 settlement that Buchmeyer's order allowed him to take as attorney's fees.)

In the Satz case, the non-judicial-council judges last July agreed with McBryde, finding that "we need not attribute paranoia or irrationality to Judge McBryde to explain his view that AUSA Cerow's contentions about the sealing order were untruthful."

But as Politz's threat had indicated, Judge McBryde's troubles with the judicial council were just beginning. For two years, McBryde and the council have been wrangling over issues neither side will discuss. Whatever the issues, well-placed insiders, speaking on condition of anonymity, say they spawned a nasty pair of lawsuits late last September and early last October. McBryde apparently filed first, bringing some sort of civil action against the judicial council in Fort Worth district court. A week later, the judicial council countersued in Dallas.

One person who has seen the suits says that they were ordered sealed (without notice or hearing, of course) and that every single judge in the Northern District recused himself from the cases. Pursuant to statute, Politz then assigned the cases to a judge whom no one will name. Another person who has seen the suits describes them as "spectacular." The same source says that, among other counts, McBryde's suit challenges the constitutionality of procedures under the 1980 act.

In the interim, McBryde apparently has filed two new actions seeking to enforce subpoenas he has sent to the Justice Department and to other persons involved in the underlying cases. This time, he was less successful; the regular 5th Circuit ruled it had no jurisdiction to aid McBryde's attempts to obtain the information and documents he sought.

In the wake of their loss before the non-judicial-council 5th Circuit, the judicial council seems to have dropped all pretext of objectivity or fairness. In July, Edward Prado, a San Antonio federal judge who is on the five-member Special Investigative Committee, told Texas Lawyer that while they couldn't remove the Torres and Satz cases, they certainly could find another way to sanction him. And several lawyers who testified against McBryde in New Orleans have filed motions suggesting they have been told the committee intends to take some action against the maverick jurist. In a motion asking McBryde to recuse himself from a case, Dallas lawyer Arch McColl--one of the witnesses who testified against McBryde in New Orleans "regarding his fitness to remain as a federal judge"--states that "counsel believes the matter is pending before [the judicial council] internally and that they will be issuing some sort of standing order to correct this problem."

During this week's Fort Worth hearings, which are expected to end this week, McBryde will get to present his witnesses. The five-member special investigative committee will then prepare a lengthy report with its findings, which will be presented to the entire 19-member judicial council for adoption or rejection. (As a practical matter, judicial councils usually rubber-stamp the findings.)

For their part, any number of Justice Department lawyers say they hope the council will issue an order refusing McBryde future case assignments--specifically, those involving the Justice Department.

If it happens, there are some lawyers who say it will be a shame. "I can only say that my client's impression was that Judge McBryde was fairer to both sides than the judge in Arizona," says William Kelly, the Texas lawyer who represented Michael Satz. "And I don't disagree with that.


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