Regional Oral History Office University of California ...Northern District of California is a...

Regional Oral H i s t o r y Off ice The Bancrof t L i b r a r y

U n i v e r s i t y of C a l i f o r n i a Berkeley, C a l i f o r n i a

Northern C a l i f o r n i a U.S. D i s t r i c t Court S e r i e s

Alfonso J. Zi . rpo l i

FAITH I N JUSTICE: ALFONSO J. ZIRPOLI AND THE UNITED STATES DISTRICT COURT FOR

THJ3 NORTHERN DISTRICT OF CALIFORNIA

In te rv iews Conducted by S a r a h L. Sharp

1982-83

Copyright @ 1984 by the Regents of t h e U n i v e r s i t y of C a l i f o r n i a

A l l uses of this manuscript a r e covered by a l e g a l agreement between the Regents of t h e Univers i ty of C a l i f o r n i a and Alfonso J. Z i rpo l i dated June 6 , 1983. The manuscript is thereby made a v a i l a b l e f o r research purposes. A l l l i t e r a r y r i g h t s i n t h e manuscript, i nc lud ing t h e r i g h t t o publ i sh , a r e reserved t o The Bancroft Library of the Universi ty of Ca l i fo rn i a Berkeley. No p a r t of the manuscript may be quoted f o r p u b l i c a t i o n without the w r i t t e n permission of t he Di rec tor of The Bancroft Library of t h e Univers i ty of Ca l i fo rn i a a t Berkeley.

Requests f o r permission t o quote f o r pub l i ca t i on should be addressed t o t h e Regional Oral History Off ice , 486 Library , and should i nc lude i d e n t i f i c a t i o n of the s p e c i f i c passages t o be quoted, a n t i c i p a t e d use of t he passages, and i d e n t i f i c a t i o n of t he user . The l e g a l agreement wi th Alfonso J. Z i r p o l i r equ i r e s t h a t he be n o t i f i e d of t he reques t and allowed t h i r t y days i n which t o respond.

It i s recommended t h a t t h i s o r a l h i s t o r y be c i t e d as fol lows :

Alfonso J. Z i r p o l i , "Faith i n J u s t i c e : Alfonso J. Z i r p o l i and The United S t a t e s D i s t r i c t Court f o r t he Northern D i s t r i c t of Ca l i fo rn i a , " an o r a l h i s t o r y conducted 1982-83 by Sarah L. Sharp, Regional Ora l His tory Off ice , The Bancroft L ibrary , Univers i ty of C a l i f o r n i a , Berkeley, 1984.

Copy No.

TABLE OF CONTENTS--Alfonso J, Z i r p o l i

INTERVIEW H.ISTORY

I GIILDHOOD AND YOUTH; .MIDWEST TO FURTHER WEST

I1 YOUNG ATTORNEY I N SAN FRANCISCO, 1928-1933 Ear ly P r a c t i c e ; F r iendsh ip w i t h A. P. Giann in i and t h e Bank

of I t a l y A d d i t i o n a l Notes on Family and t h e I t a l i a n Community A. P. 's Proxy F i g h t ; "Back t o Good Times" The I n v e s t i g a t i o n and Impeachment of Judge Harold Louderback

\

I11 YEARS AS ASSISTANT UNITED STATES ATTORNEY, 1933-1944 Cops and Robbers : The "Baby Face" Nelson/"Fatso" Negri Cases

P r e l i m i n a r i e s Unraveling t h e T a l e

Habeas Corpus Q u e s t i o n s and A l c a t r a z I s l a n d P r i s o n F u r t h e r Notes on Judge Louderback : The Herber t F le i shhacker

Embezzlement T r i a l The Northern D i s t r i c t d u r i n g World War I1

The A l i e n Enemy Cont ro l Board U.S. v. Fred Toyosaburo Korematsu I n t h e Matter of t h e A p p l i c a t i o n of Mitsuye Endo

f o r a W r i t of Habeas Corpus

I V THE INTERIM YEARS, 1944-1961 Tokyo Rose and Other P r i s o n e r of War Cases Conrments on P o l i t i c a l A c t i v i t i e s ; Changes i n North Beach O r i g i n s of t h e I n d i g e n t Defendant Program Lawyer De lega te t o t h e Ninth C i r c u i t J u d i c i a l Conference I n t e r l u d e on t h e San Franc i sco Board of Superv i sors

V ON THE BENCH OF THE NORTHERN DISTRICT Appointment i n 1961 and T r a n s i t i o n Changes i n t h e Code of C i v i l Procedure Sampling A n t i t r u s t Cases : From E l e c t r i c a l Equipment t o

Wall Produc t s General Concerns i n t h e Area of A n t i t r u s t

V I THE JUDICIAL CONFERENCE OF THE UNITED STATES, 1962-1982 P e r s p e c t i v e s on the. Work of t h e Conference: Membership on

t h e Advisory Committee on F e d e r a l Cr iminal Rules and t h e Committee on t h e Admin is t ra t ion o f t h e Criminal 'Law

The Federal Magistrates Act Modernizing the Rules Sentencing and t h e Sentencing Commission

VII THE NORTHERN DISTRICT COURT Friendship and Senrice wi th WillPam T, Sweigert Courtroom Comments: Lawyerss S ty le s and J u r i e s Conscientious Objection and Selec t ive Conscientious Objection:

U. S. v. McFadden and Other Cases Tempers of the Changing Times The I s sue of Draft Resistance '

A Note on Law Clerks Judge Sweigert and the War i n Vietnam The Court i n Wartime Welfare and Aid t o Families with Dependent Children Substantive and Administrative Changes wi th in the Court Since

1961 I s sues f o r t h e Ninth Circui t J u d i c i a l Conference: Sentencing

I n s t i t u t e s , Diversi ty J u r i s d i c t i o n Further Thoughts on Ju r i e s Prisoners ' Rights and t h e Court's Role: Examples from Santa

Ri ta and San Quentin The Death Penalty Aid t o Families wi th Dependent Children: S t a t e and Federal

Responsib i l i t ies Comparing the D i s t r i c t Court and the Court of Appeals The Craf t of T r i a l Court Judging

TAPE GUIDE

APPENDIX

INDEX

PREFACE

The His to r i ca l Society of the United S ta t e s District Court f o r t he Northern D i s t r i c t of Cal i forn ia is a non-profit organizat ion es tab l i shed by f ede ra l p r a c t i t i o n e r s and judges and is dedicated t o preserve and develop the h i s to ry of t h i s court . The Society 's goals a r e threefo ld : 1 ) t o marshal the sources f o r h i s t o r i c a l study of the District; 2) t o i n i t i a t e and encourage comprehensive and scholar ly study of the cour t ; and 3) t o develop i n t e r - p re t ive programs and e x h i b i t s making t h e f r u i t s of t h i s research access ib le and meaningful t o the l e g a l community and the general public .

In 1980 t h i s s e r i e s of o r a l h i s t o r i e s conducted by The Bancroft Library was i n i t i a t e d a s an important e f f o r t i n the furtherance of the Society 's objec t ives . By preserving the personal reminiscences of indiv iduals whose experiences and memory can y i e ld valuable "oral evidence" of t he cour t ' s h i s t o r y , the Society hopes t o enhance and amplify the w r i t t e n record.

In add i t ion t o h i s t o r i c a l study of t he D i s t r i c t , t h e Society hopes t o promote grea ter publ ic understanding and apprec ia t ion of t he r o l e of the f ede ra l judic iary . Except f o r those involved i n the l e g a l process, t he operat ion, s ign i f i cance , and impact of f ede ra l t r i a l cour ts remains l a rge ly a mystery t o most Americans. By focusing on the h i s t o r y and a c t i v i t i e s of .

the Northern D i s t r i c t , the Society hopes t o bridge t h i s gap between the l e g a l and l ay world and even encourage o the r D i s t r i c t cour ts t o i n i t i a t e s i m i l a r e f f o r t s . As the na t ion nears the 200th anniversary of t he r a t i f i c a t i o n of the United S ta t e s Cons t i tu t ion , i t is an appropr ia te time t o r a i s e t h e l e v e l of public understanding by placing the contemporary r o l e of d i s t r i c t cour t s i n h i s t o r i c a l perspect ive.

Thanks a r e due t o the fores ight and generosi ty of the indiv iduals and organizat ions whose support make t h i s work possible .

Robert Peckham, Hi s to r i ca l Society of the

U.S. D i s t r i c t Court, Northern D i s t r i c t of Ca l i fo rn ia

San Francisco, Cal i forn ia Apr i l , 1981

NORTHERN CALIFORNIA U.S. DISTRICT COURT SERIES

Interviews Completed by 1987

Harris, George B., Memories o f San Francisco Legal Practice and S ta te and Federal Courts, 1920s-1960s, 1981.

Phleger, Herman, Observations on t he U.S. Dis t r i c t Court for the Northern Dis t r ic t of Cali fornia, 1900-1940, 1981.

Sweigert, William T., Sr., A h i n i s t r a t i o n and Ethics i n the Governor's Of f ice and the Courts, ~ a l i f o r n i a , 1939-1975, 1987.

Wollenberg, Albert C., Sr., To Do the Job Well: A Li fe i n Legis la t ive , Judicial , and C o m n i t y Service , 1981.

Zirpoli, Alfonso J., Faith i n Jus t ice: Alfonso J. Zirpol i and t he United S ta tes D i s t r i c t Court for t he Northern Dis t r ic t o f Cal i forn ia , 1984.

iii

INTERVIEW HISTORY

Researchers in te res ted i n t h e h i s to ry of t h e United S ta tes D i s t r i c t Court f o r t h e Northern D i s t r i c t of Cal i fornia , and i n t h e evolution of t h e modern fede ra l d i s t r i c t cour t , a re fortunate t o now have avai lable four o r a l h i s t o r i e s conducted with individuals long associated with t h e Court: Herman Phleger, George B. H a r r i s , Albert C. Wollenberg, S r . , and, i n t h i s volume, Alfonso J. Zirpoli . I n addi t ion , an o r a l h i s to ry completed with William T. Sweigert, a recent ly deceased Northern D i s t r i c t Court judge, under t h e auspices of both t h e Court and t h e Ear l Warren Era p ro jec t , i s i n i t s f i n a l s tages of production and w i l l be avai lable i n l a t e 1984. Since 1980 t h e Northern D i s t r i c t Court has worked with t h e Regional O r a l History Office t o research and prepare o r a l h i s to ry memoirs with some of t h e Court's dist inguished at torneys and judges. These o r a l h i s t o r i e s a r e p a r t of a unique e f f o r t on t h e pa r t of t h e His to r i ca l Society of t h e United S ta tes D i s t r i c t Court f o r t h e Northern D i s t r i c t of California t o co l l ec t materials relevant t o the Court's h is tory . These interviews complement each o ther i n t h e i r discussion of c r i t i c a l themes and topics .

Alfonso Joseph Zirpol i has been a judge of t h e Northern D i s t r i c t s ince 1961, and i s current ly serving on senior s t a tus . The memoir opens with Z i rpo l i ' s recol lec t ions of h i s a r r i v a l i n San Francisco from Denver i n 1918 as a young boy, with h i s mother and younger brother , Armando, t o meet t h e i r f a the r who had come out e a r l i e r t o assume a new posi t ion a t t h e I t a l i a n consulate. Both boys matriculated through San Francisco grammar and high schools. A s Zi rpol i characterizes Washington G r a m m a r School, "When you graduated from t h a t school, you e i t h e r ended up i n San Quentin or you were employed by t h e Bank of I taly. ' ' Zirpoli dates h i s i n t e r e s t i n t h e law from h i s f a t h e r ' s own enthusiasm f o r it and h i s experiences i n t h e debating socie ty a t Lowell High School. A s he reminisces about h i s youth, t h e reader can imagine l i f e i n I t a l i a n North Beach i n t h e period a f t e r World War I. This young I t a l i a n American opened h i s f i r s t law o f f i c e i n North Beach and counseled many I t a l i a n c l i en t s .

Clearly a highlight of t h i s period f o r Zirpoli was h i s w a r m tu te l age under A.P. Giannini, progenitor of t h e Bank of I t a l y (which became t h e Bank of America) and fellow Washington Grammar School graduate, and Zirpol i ' s e f f o r t s on Giannini 's behalf i n t h e Democratic party and i n t h e bank's p o l i t i c s , a l l i n t h e 1930's. Throughout h i s l i f e i n San Francisco, Zirpoli has kept close t i e s with t h e I t a l i a n community and he has maintained memberships i n numerous I t a l i a n associat ions such as t h e I t a l i a n Mutual Benefit Society, t h e I t a l i a n - American Chamber of Commerce, and I1 Cenacolo.

Several episodes dominate Z i rpo l i ' s recol lec t ions of h i s years a s an ass i s t an t United S ta tes at torney i n San Francisco between 1933 and 1944, including h i s r o l e i n t h e apprehension, inves t iga t ion , and t r i a l s of t h e

accomplices of "Baby Face" Nelson; i n t he hearings before the Alien Enemy Control Board; i n t h e Northern Dis t r i c t Court cases of Fred Toyosaburo Korematsu and Mitsuye Endo; and i n the courtroom of Harold J. Louderback, a judge fo r the Northern Dis t r i c t who was impeached by Congress i n 1932.

Zirpoli has retained a l i ve ly i n t e r e s t i n the "Baby Face" Nelson cases. He had saved eleven case f i l e s from the trials and shared them with the interviewer as pa r t of her preparation. The de t a i l s of t he a c t i v i t i e s of Nelson and h i s many accomplices were very involved, and Zirpoli s trove t o r e c a l l them. During h i s review of the t r an sc r i p t , he rewrote several lengthy passages t o c l a r i f y the s to r ies . Zirpol i ' s account i l l u s t r a t e s t he investigation and prosecution methods used by the FBI and the Department of Jus t i ce i n t he 1930s.

During the ea r ly phase of World War 11, Zirpol i ' s assignments i n t he off ice of t he U.S. at torney i n San Francisco l ed him t o experience the pressures and fea rs d i rected against Japanese, German, and I t a l i a n individuals, both a l i en and c i t izen. He was a prosecutor before t he Alien Enemy Control Board, a hearing board which decided, on the bas is of the evidence presented before i t s o f f i ce r s , whether ce r ta in a l iens should be considered dangerous enough t o endanger national secur i ty and therefore interned i n camps. These camps were similar t o t he camps which held so many Japanese and Japanese Americans l a t e r i n 1942 around t he country; very l i t t l e i s known of t h e i r work and the people which t h e boards assigned t o be internees. Zirpol i ' s account reveals the procedures by which the San Francisco board did i t s work. A t t he suggestion of Chief Judge Robert Peckham, the interviewer attempted t o arrange an addit ional session t o cover the board more fully. The interviewees were t o have been Thomas Barclay and Edwin Owens, along with Judge Zirpol i , but t h i s session did not take place. In teres ted readers may see an o r a l h i s to ry interview conducted with Edward J. Ennis i n , Japanese-American Relocation Revisited, Volume I, which was completed as pa r t ,of the E a r l Warren Era project i n 1976, fo r addi t ional information about t he board.

Much of t he documentation of the Korematsu, Endo and t he other Japanese American internment cases has focused on them as they came before the United Sta tes Supreme Court i n 1943 and 1944. Z i rpo l i l s recollect ions of h i s r o l e as an ass i s t an t U.S. attorney i n Korematsu and Endo as they were prosecuted i n 1942 a t the lower l eve l f i l l i n many de t a i l s about the roles of judges, of Ear l Warren as California 's attorney general--all cas t against the backdrop of curfew and exclusion orders i n force i n the San Francisco Bay area during World War 11. As a s ide note on Endo and Korematsu, t he timing of t h i s pa r t i cu la r interview session coincided with t he e f fo r t s of Fred Korematsu and fellow internees Minor Yasui and Gordon Hirabayashi t o have the Northern Dis t r i c t vacate t h e i r convictions fo r v iola t ing t he militarily-imposed curfew.

Between 1944 and 1961, Alfonso Zirpoli involved himself i n a number of p o l i t i c a l and l ega l act ivi t ies--as a private attorney, as a member of the San Francisco Board of Supervisors, and as a supporter fo r several s t a t e and national candidates. Zirpoli worked on the campaigns of Democratic candidates A d l a i Stevenson and Stanley Mosk, and urged, though unsuccessfully, General Dwight D. Eisenhower t o run fo r the presidency as a Democrat.

One important thread fo r t h e h i s to ry of the Northern D i s t r i c t Court i n t h i s period, and on which Zirpol i comments, i s the establishment of t h e indigent defendant program i n 1951. Zi rpol i chaired a spec ia l committee arranged by the Court a t the suggestion of Judge George Harris t o Chief Judge Louis Goodman. It was a l s o i n t h i s period t h a t Zi rpol i r eg i s t e red h i s i n t e r e s t i n the administrat ion of the federa l courts i n California by becoming a lawyer delegate t o the Ninth Circuit jud ic ia l conference.

- - - - - - - - - - - . --

The remainder of t h i s o r a l h i s to ry memoir concerns Zi rpol i ' s career on the bench of the Northern D i s t r i c t . President John F. Kennedy nominated Zirpoli t o f i l l a vacancy on the Court i n 1961. The nomination s a i l e d through Democratic channels quickly, despi te t h e pressures of Governor Edmund G. Brown, Sr. , f o r se lec t ion of another nominee. Zi rpol i answered the interviewer ' s questions on a wide va r i e ty of topics--substantive areas of adjudicat ion such as a n t i t r u s t , conscientious object ion and prisoners', r i g h t s , a s well a s h i s memberships on t h e Advisory Committee on t h e Federal Criminal Rules and t h e Committee on t h e Administration of the Criminal Law, both committees of the J u d i c i a l Conference of the United Sta tes . Zirpoli had re ta ined materials from h i s work on these committees which he allowed the interviewer t o review, such as remarks before Congressional committees and annual repor ts of these J u d i c i a l Conference committees. Along t h e way i n these discussions, Zirpoli assesses h i s own approach t o t r i a l court judging ("I probably in ter rogated witnesses a l i t t l e more than any o ther judge."), and sentencing, t h e r o l e of t h e court i n wartime, the differences between the t r i a l court and the court of appeals, the r o l e of a t torneys , and o ther topics . By way of h i s descr ip t ion of the a n t i t r u s t cases, Zirpoli comments on a judge's exper t i se i n understanding t h e technica l d e t a i l s of what cases a r e brought before him.

As i s t y p i c a l of o r a l h i s to ry sess ions , both the interviewer and Judge Zirpoli introduced many top ics which could not be covered because of time cons t ra in t s , such a s the judge's r e l a t ionsh ip with President Kennedy and Attorney General Robert F. Kennedy, during h i s f i r s t years on t h e bench, o r cases which the re was not time t o mention, such as the co l l ec t ive bargaining case involving Granny Goose Foods and the California Teamsters which went t o the United S ta tes Supreme Court i n 1974. *

The o r a l h i s to ry process began with Judge Zirpoli i n a preliminary meeting with the interviewer t o discuss a general ou t l ine of topics and time periods. Zirpoli f i l l e d i n addi t ional topics which he wanted t o cover. The interviewer presented the judge with a Loxis pr in tout of h i s d i s t r i c t court cases, and the judge se lec ted many f o r discussion. For t h e most p a r t , these a r e the cases which were covered. The footnotes show some of t h e books and materials which the interviewer used t o develop questions. In addit ion, t h e interviewer drew on o r a l h i s t o r i e s conducted e a r l i e r and other research, a s well as a tape

*Granny Goose Foods, Inc. , e t a l . v. Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 of Alameda County, In ternat ional Brotherhood c~f Teamsters, Chauffers , Warehousemen and Helpers of America, 415 U, S. 423 (1974).

recording which Zirpoli had made on h i s own and which highlighted h i s career i n the law. The l i b r a ry of the San Francisco Chronicle held several useful a r t i c l e s de ta i l ing Zirpol i ' s actions i n draf t res is tance and death penalty cases. Outlines of each upcoming session and copies of cases t o be covered were always sent several days ahead of the scheduled meeting. Many times Judge Zirpoli had writ ten notes about the topics included on t he out l ine and incorporated these ideas i n to the interview. The interviewer conducted a l l taping sessions i n t he judge's chambers a t t he Court i n the Federal Building i n San Francisco on 9 September, 1 4 October, 2 and 24 November, a l l i n 1982, and 7 and 24 February, and 5 and 12 May, i n 1983. Both the judge and the interviewer s a t a t a large t ab le i n one corner of h i s pr ivate o f f i ce , with case reporters and other items spread out before them. A t t he f a r end of the t ab l e , current case records had been stacked i n high p i l e s , awaiting Judge Zirpol i ' s a t tent ion.

Judge Zirpoli reviewed the lengthy t ransc r ip t during h i s convalescence from a serious i l l n e s s ea r ly i n 1984. Fluent i n I t a l i a n , he corrected the spel l ing of the I t a l i a n words. He a l so corrected h i s phrasing i n some discussions of - the cases, and made h i s language more exp l i c i t and added descript ive phrases i n other portions of the t r ansc r ip t . He loaned the interviewer the photographs which appear throughout the volume; they are from a small family collect ion. The judge's a ss i s t an t of many years, Maggie Anderson, was of invaluable assistance during t h i s review process.

Many materials which r e l a t e t o t h i s o r a l h is tory have been deposited i n the Bancroft Library t o supplement the interview. They include "Oral Remarks of Dis t r i c t Judge Alfonso J. Zirpoli i n connection with appearance before Subcommittee on Crime Committee of the Judiciary House of Representatives on S. 754 ," dated 19 September 1974; "Statement of the Honorable Alfonso J. Zirpol i , United Sta tes Dis t r i c t Judge, Northern D i s t r i c t , California," on S.1, dated 19 September 1974;" "Summary of statement of Senior Dis t r i c t Judge Alfonso J. Zirpoli concerning the Criminal Code Reform Act of 1978, S. 1437, and H. R. 6869, before the Subcommittee on Criminal Jus t i ce of the Committee on the Judiciary of the House of Representatives, April 10, 1978;" a copy of S. 1, a revision of T i t l e 18 of t he United Sta tes [Criminal] Code, dated 4 January 1973; a copy of "Remarks by Judge Alfonso J. Zirpoli a t the His tor ica l Society 's Alcatraz Event, October 6, 1982Ii; a d a t r ansc r ip t of an interview with Harold Faulkner conducted by Judge Zirpoli i n 1981.

As i s frequently the case i n o r a l h is tory interviewing, the actual process of recol lec t ion, once begun, i s a t ap t ha t i s d i f f i c u l t t o turn o f f . Several months a f t e r the interviewing had been completed, the interviewer saw Judge Zirpoli a t an e ight ie th birthday celebration fo r Bernard Witkin, a noted California law j u r i s t . The judge greeted the interviewer warmly, appeared pensive fo r a moment, and sa id , "Oh, I forgot t o t e l l you about my experiences a t Boalt Hall with Witkin when I proofread h i s f i r s t book . . . . I 1

3 July 1984 Regional Oral History Office 486 The Bancroft Library University of California a t Berkeley

Sarah Sharp Interviewer-Editor

I CHILDHOOD AND YOUTH: MIDWEST TO FURTHER WEST

[Interview 1: September 9, 1982]il#

Sharp: I know from t h e Jackson book* t h a t you had been born i n Denver i n 1905.

Z i rpo l i : Yes.

Sharp: I thought w e would s t a r t wi th your coming here . I wondered i f you remember t h e t r i p coming o u t t o San Francisco?

Z i rpo l i : Yes, I remember t h e t r i p coming ou t t o San Francisco, but I ought t o add a cormnent he re t h a t has some bear ing on my being here . My f a t h e r [Vincenzo Z i r p o l i ] m e t my mother [ S t e l l a Graziani Z i rpo l i ] i n Rome. He had been i n t h e I t a l i a n cava l ry f o r seven years . She had h e r family i n Torrington, Connecticut. So he came t o t h e United S t a t e s t o marry my mother and they moved t o Denver, Colorado immediately, where s h e had a cousin r e s id ing . He qot h i s f i r s t job a s a bronco bus t e r i n t h e s tockyard. But he decided t h a t he would r e t u r n t o I t a l y , s o he went t o t h e I t a l i a n consula te wi th h i s l i t t l e horse and buggy and parked o u t s i d e t h e consula te .

When he en te red , t h e consul was interviewing a man f o r m i l i t a r y s e r v i c e and h e was having some d i f f i c u l t y w i th t h e forms. My f a t h e r asked i f h e could be of a s s i s t ance . Af t e r i t was over, t h e consul turned t o my f a t h e r and s a i d , "What can I do f o r you?" My f a t h e r s a i d , "I would l i k e t o r e t u r n t o I t a l y . " The consul s a i d , "Thy don ' t you remain here a s s ec re t a ry of t h e consula te . We don ' t have a s ec re t a ry f o r t h e consulate ."

ililThis symbol i nd i ca t e s t h a t a t ape o r a segment of a t ape has begun o r ended. For a guide t o t h e tapes s e e page 239.

*See Donald Dale Jackson, Judges (New York: Atheneum, 1974); "Judge ~ i m p a t i c o " is t h e chapter about Judge Z i rpo l i , pp. 277-302.

Zirpol i : So h e remained i n Denver i n 1904 and I was born i n t he following year , 1905. Had i t no t been f o r t h a t i nc iden t , I would have been born i n I t a l y . Who knows what my l i f e would have been. We remained i n Denver u n t i l 1918 when my f a t h e r was t r ans fe r r ed t o San Francisco. The consul genera l i n Denver was t r ans fe r r ed t o San Francisco. My f a t h e r moved over t o San Francisco wi th him and remained h i s secre- t a r y of t h e consulate u n t i l 1939. During much of t h a t time, he a l s o served a s a c t i n g consul.

I r e c a l l t h e t r i p t o San Francisco because my mother had an uncle who was a p r i e s t a t t h e S t . Regis College and we went t o a very e a r l y Mass. I remember going t o t he Mass f o r prayers i n prepara t ion f o r ou r journey t o Ca l i fo rn i a . When we a r r ived a t t h e depot and were boarding t h e t r a i n , t h e r e was a tremendous thunder and l i g h t n i n g storm t h a t I always remenher.

Upon our a r r i v a l i n San Francisco, we expected my f a t h e r t o be t h e r e a t t h e Ferry Building, but t h e r e was some mistake and t h e r e was no one t h e r e t o r ece ive my mother and me and my b ro the r [Armando Z i r p o l i ] , who was two years younger than I. It was t h e f i r s t week of Apr i l . The Travelers Aid phoned t h e consula te and my f a t h e r came down and got us and had someone take ca re of our baggage. We took t h e Cal i forn ia S t r e e t cab le [car ] - - i t was my f i r s t cab le c a r ride--up Ca l i fo rn i a S t r e e t . The consula te was s i t u a t e d a t Clay and Montgomery and we went f i r s t t o t h e consulate . That was i n t h e o r i g i n a l Bank of America bui ld ing a t Clay and Ilontgomery.

I was expect ing t o s e e a l o t of t r e e s , e spec i a l ly orange t r e e s and some f r u i t t r e e s . There were many t r e e s on t h e s t r e e t s i n Denver. To my disappointment I saw no orange t r e e s , no f r u i t t r e e s . San Francisco was j u s t a b i g c i t y wi th very few t r e e s and plenty of h i l l s . We stayed wi th t h e consul i n h i s home f o r a few months. F ina l ly we found an apartment on t h e top of Nob H i l l i n a bu i ld ing which has s i n c e been t o r n down. They have a b i g tower t h e r e now on Clay, t h e Clay-Jones. That was our f i r s t l oca t ion .

My b ro the r and I enro l led i n Washington Grammar School. This was an a l l boys school s i t u a t e d a t Washington and Mason S t r e e t s . It has s i n c e been to rn down. The fame of t h e school i s t h e f a c t t h a t A. P. IAmadeo Peter.] Giannini was a graduate of t h e school and t h e d i s t r i c t a t t o rney (I am t r y i n g t o remember h i s name) [Matthew Brady] was a graduate of t h a t school. These were t h e two most important graduates. But a s I say, i t was an a l l boys school . When you graduated from t h a t school , you e i t h e r ended up i n San Quentin o r you were employed by t h e Bank of I t a l y .

My mother dressed us up i n l i t t l e Lord Fauntleroy c lo thes cons i s t i ng of knee b r i t c h e s , a l i t t l e jacke t , h a t , and but ton shoes and everything. But i t w a s a p r e t t y rough school and by t h e time we got home, we were a mess. I at tended t h a t grammar school j u s t

Zi rpo l i : f o r a few months from Apr i l t o June. When I graduated from Washington Grammar, I was supposed t o make a speech a t graduat ion day, but I was ill. What I was supposed t o do was t o make Pres ident [Woodrow] Wilson's famous speech of dec l a ra t ion of war. This was a rowdy bunch of boys and every once i n a while they would i n t e r r u p t t h e c l a s s and ask t h e teacher t o have me p r a c t i c e my speech, o r they would break ou t i n song whenever they f e l t l i k e i t . The only one who could handle them was t h e p r i n c i p a l , McCarthy, and i f you d idn ' t behave, he'd t ake you ou t i n t h e yard and chal lenge you t o a f i g h t . That was t h e way you learned t o behave a s f a r a s t h a t school was concerned.

Af te r I graduated from Washington Grammar, I entered Lowell High School which was then t h e bes t school i n t h e c i t y and probably s t i l l is. A t Lowell High School, I took t h e usual courses including a course i n Lat in , bu t I d idn ' t l e a r n very much o r don't r e c a l l very much a s a r e s u l t of t h a t c l a s s , a few expressions now and then. I a l s o took a c l a s s i n French.

Sharp: Did you remember any more of t h a t ?

Zi rpol i : Oh, yes, a l i t t l e more of t h a t . But we were speaking I t a l i a n q u i t e a b i t i n t h e family and t h a t f a c i l i t a t e d my study of both La t in and French. I a l s o became a member of t h e debat ing s o c i e t y a t Lowell High School. My b ro the r was two years behind me. H i s classmate was Edmund "Pat" Brown [S r . ] who eventua l ly became governor of Cal i for- n i a , so we got t o know each o t h e r f a i r l y wel l . From Lowell High School, I went t o t h e Universi ty of Ca l i fo rn i a [Berkeley].

I might say tha t while I was i n Denver, I used t o work whenever I could a s a boy. I so ld newspapers i n f r o n t of t h e Brown Palace Hote l , .never dreaming t h e day would come when I would be a guest there . When I came t o San Francisco, I continued t o s e l l newspapers while I was i n school. I remember s e l l i n g papers on my a r r i v a l he re almost immediately, p a r t i c u l a r l y one i s sue . I used t o buy t h e [San Francisco] Examiner a t t h e Examiner bui ld ing , an armful of them, and walk t o Nob H i l l y e l l i n g , "Extra, e x t r a , Big Bertha bombards Pa r i s , " and t h a t was t h e b ig headl ine.

I n high school, I en ro l l ed i n t h e ROTC [Reserve Of f i ce r s f Training Corps] and they d idn ' t have uniforms t h a t would f i t me. I w a s t o o small , s o i t c o s t me $25 t o have a l l of my uniforms t a i l o r e d t o my s i z e .

These a r e t h e bas ic r e c o l l e c t i o n s , you might say, i n grammar school and high school.

I t r i e d o u t f o r t h e baske tba l l team, but d i d n ' t make i t . My bro ther and Pa t Brown made i t , but I d i d n ' t . I used t o be water boy f o r t h e f o o t b a l l team.

Zirpol i : When I entered Cal, I commuted. We used t o take t h e f e r r y boat every day. It was a very pleasant journey and we could s tudy on t h e f e r r y boat and on t h e t r a i n . I entered Cal i n 1922 and received my AB i n 1926. (That AB included t h e f i r s t year i n l a w school . ) Then I entered Boalt where I received my Doctor of Jur isprudence degree i n 1928. I was not on t h e law review. I did have a B+ average.

While a t t he Universi ty , I became i n t e r e s t e d i n baske tba l l . I p a r t i c u l a r l y became i n t e r e s t e d i n I t a l i a n c u l t u r a l a c t i v i t i e s s i n c e I took courses i n both French and I t a l i a n . I became pres ident of I1 Circolo I t a l i a n o of t h e Universi ty of Ca l i fo rn i a and l a t e r the f i r s t p res ident of P i Mu I o t a , t h e I t a l i a n honor soc i e ty . I a l s o engaged i n , you might say , dramatics. I played a p a r t i n two d i f f e r e n t p lays t h a t we put on, I t a l i a n plays, and we had r egu la r meetings i n which we would i n v i t e speakers , p rofessors , o r whoever we thought could make a cont r ibu t ion a s i t r e l a t e d t o some form of I t a l i a n c u l t u r e . I was a l s o a member of t h e Congress Debating Society i n co l lege .

While a t Boalt Hal l , I began buying s tocks , t h a t i s t o say , Bancitaly and Bank of I t a l y s tock , which b r ings me back t o t h e period j u s t before I entered co l lege . I worked a s a messenger boy f o r A. P. Giannini. This was a very wonderful r e l a t i o n s h i p t h a t became more meaningful with t h e passage of t he years .

Af te r I received my degree of law, I entered t h e p r i v a t e p r a c t i c e of t h e law. But before I ge t i n t o t h a t , I might say t h a t co l l ege l i f e was very p leasant . I played on t h e co l lege 145-pound baske tba l l team. I had taken a defense t e s t and t h e boxing coach wanted me t o go o u t f o r t h e boxing team. I conferred wi th my f a t h e r and he s a i d , "No, i t ' s too rough a s p o r t and you may be injured." Then I asked him i f i t was a l l r i g h t f o r me t o play baske tba l l and he s a i d , "Fine, t h a t ' s a very gen t l e spo r t . " Well, a s a r e s u l t , I had my nose broken twice playing baske tba l l !

Sharp: I wondered when you came t o UC Berkeley? It would have been r i g h t a f t e r t h e c l o s e of World War I ? Did you have many o lde r s tuden t s , ve te rans , coming onto t h e campus then a s a r e s u l t ?

Zi rpol i : Oh, yes , there were some t h a t came on l a t e r . Yes, t he re were.

Sharp: Did they change the campus?

r p o l i : No, I could n o t i c e no change. There were some of t he graduate s tudents who i n those days were employed a s P roh ib i t i on agents . That was t h e i r ou t s ide work. We used t o meet i n t he basement of t h e o ld Boalt Hal l bu i ld ing t o t a l k about th ings . This being t h e Prohib i t ion e r a , once i n a while we would go down t o Broadway i n Oakland and have some beer t h a t they ca l l ed "near beert1 wi th a very low percentage of a lcohol , ha l f of 1 percent , I th ink .

Zi rpo l i : Of course, i n Boalt Hal l , I took a course i n Roman law. I remember a f t e r t h e examination was over , Henry Robinson, who became an important San Francisco lawyer, and I were no t i n agreement with t h e o the r s tudents on c e r t a i n i n t e r p r e t a t i o n s of t h e Roman law, and we ta lked t o Professor Max Radin about i t . He t o l d us w e w e r e wrong. We s a i d , "If w e a r e wrong, your book i s wrong." W e got ou t h i s book, ,and s u r e enough, h i s book had i t t h e way w e s a i d i t should be and he s a i d , "That's wrong." Then w e went u p s t a i r s and looked a t t h e Pandix, t h e o r i g i n a l La t in t e x t , and h i s book'was wrong. So he asked us t o s t a y over an e x t r a week a f t e r w e graduated t o review h i s book [laughs] and make co r r ec t i ons i f necessary,

We graduated, a s I s a i d , and I remember we had a b i g pa r ty a f t e r t h e f i n a l s i n which I suppl5ed t h e wine. This was, of course, during t h e P roh ib i t i on e r a , bu t each family was allowed t o make two hundred ga l lons a yea r . Throughout t h e North Beach s e c t i o n , you could s e e t h e c r a t e s of grapes p i l e d up on t h e sidewalk a longs ide of garages o r en t rances t o basements where t h e people would crush t h e i r grapes and process them i n t h e hope t h a t they would g e t wine and n o t vinegar . Quite o f t en , they ended up wi th vinegar i n s t ead of wine.

Sharp: F ~ e r e y o u i n v o l v e d i n a n y o f t h e w i n e m a k i n g i n y o u r family?

Z i rpo l i : Oh, f o r our own family. My g rea t d e l i g h t w a s a f t e r w e drew t h e wine, I would pour bo i l ed water back i n t o t h e b a r r e l s and we would make a d r ink t h a t we c a l l e d aqua re l l a meaning " l i t t l e water ." It was more l i k e a l i t t l e l i g h t soda than i t w a s anything else. But of course, a s I say , t h i s w a s t h e yea r of P roh ib i t i on and i t had its e f f e c t on our s o c i e t y . The people used t o l i k e t o go t o p a r t i e s , young people, and d r ink what they c a l l e d bathtub g in . I never drank i t . I would go t o a pa r ty occas iona l ly , bu t I would pour mine i n a po t ted p l a n t o r some o the r p lace . [ laughs] I n o t h e r words, I was w i l l i n g t o p a r t i c i p a t e i n t h e pa r ty , but I wasn ' t i n t e r e s t e d i n t h e bathtub gin.

Sharp: It sounds l i k e i t might have been p r e t t y rough t a s t i n g .

Z i rpo l i : Tast ing, yes . I never cared f o r i t .

Sharp: I have a few o t h e r ques t ions about your law school . I wondered what t h e main t h r u s t of law school educat ion was when you were a t Boa1 t Hal l?

Z i rpo l i : They were t h e b a s i c courses . The main t h r u s t was t o teach you c r imina l law, t o r t s , property, c o n t r a c t s , c o n s t i t u t i o n a l law, and an e l e c t i v e would be one l i k e Roman law, nego t i ab l e instruments . These were a l l of t h e b a s i c courses .

Zi rpo l i : You a l s o p a r t i c i p a t e d i n moot cou r t i n my t i m e and I was a moot cour t f i n a l i s t . Henry Robinson, whose name I j u s t mentioned, and I were f i n a l i s t s aga ins t t h e Johnson twins, Gordon Johnson and Gardiner Johnson. Gordon Johnson became a very important lawyer i n t h e community and a member o f t h e f i rm of Thelen, Marrin, Johnson, [and Bridges]. H i s b ro the r , Gardinsr, became a s t a t e l e g i s l a t o r and a l s o a very succes s fu l lawyer. They a r e both l i v i n g . Henry Robinson d ied about t h r e e years ago. I n f a c t , w e had ou r f i f t i e t h c l a s s reunion i n 1978 a t t h e P a c i f i c Union Club and w e w i l l ho ld our f i f t y - f i f t h reunion next year .

Another graduate of t h a t c l a s s was Robert Gerdes [ s p e l l s name], ~ h o wrote a t h e s i s on water l a w i n h i s l a s t year which was publ ished i n t h e Ca l i fo rn i a Law Review. As a r e s u l t , he was h i r ed by t h e P a c i f i c Gas and E l e c t r i c Company upon graduat ion a t $600 a month, which was a phenomenal s a l a r y .

Sharp: What a t t r a c t e d you t o t h e law?

Z i rpo l i : Oh, I was i n t e r e s t e d i n t h e law--my f a t h e r had some small i n t e r e s t i n t h e law. My f a t h e r was q u i t e an h i s t o r i a n f o r one t h ing and I became i n t e r e s t e d i n t h e law, became i n t e r e s t e d a t Lowell, when we s t a r t e d with t h e deba t ing s o c i e t y . I ind i ca t ed an i n t e r e s t i n t h e law and my f a t h e r encouraged i t . So I ended up, a s I say , i n Boalt E a l l . Also when I was an undergraduate, I was i n t h e Congress Debating Society. These w e r e p a r t i a l i ncen t ives t o t h e s tudy of t h e law. Now, I w i l l go on unless you have some ques t ions .

Sharp: I have a few o t h e r ques t ions . Did you begin your work wi th t h e Young Democrats a t t h i s po in t o r was t h a t l a t e r ?

Z i rpo l i : No, t h a t came l a t e r . In t h a t regard I w i l l say t h i s , t h a t I became a young Democrat during t h e [TJoodrow] Wilson e l e c t i o n i n 1916 when I was only eleven! [ l augh te r ] He was t h e one I was roo t ing f o r and s o I stayed wi th t h e pa r ty from t h a t day on.

Sharp: Let m e ask you a few o t h e r e a r l y quest ions. I wonder what you r e c a l l about t h e I t a l i a n community?

Z i rpo l i : When I a r r i v e d i n San Francisco, I noted t h a t t h i s w a s a t r u l y I t a l i a n community, t h a t i f you walked along s a y from Montgomery S t r e e t and up Columbus Avenue, you would be more l i k e l y t o hear people speaking i n I t a l i a n than i n English. A s a mat te r of f a c t , I remember walking behind two gentlemen who were arguing vehemently about a sub j ec t mat te r which I don ' t r e c a l l . They were t r y i n g t o impress each o t h e r with t h e i r arguments. F i n a l l y one of t h e gent le- men made a comment and h i s f r i end responded, "You goddamn r i g h t . " So f o r emphasis he rever ted t o t h e English.

Z i r p o l i : I a l s o r e c a l l t h a t i n t h e Bank of I t a l y b u i l d i n g they had two e l e v a t o r s and t h e o p e r a t o r s o f t h e e l e v a t o r s were Genoese. As I e n t e r e d t h e e l e v a t o r w i t h my f a t h e r and h e spoke t o him i n Genoese, I tu rned t o my f a t h e r and s a i d , "Do you mean t o t e l l me t h a t t h i s man is a n I t a l i a n ? " Because t h e r e i s such a wide d i f f e r e n c e i n t h e Tuscan and t h e Genoese d i a l e c t s . Of course , what we spoke was b a s i c a l l y Tuscan. Although my f a t h e r w a s born i n Potenza i n s o u t h e r n I t a l y , my mother w a s born i n Tuscany. Of course , my f a t h e r having been i n t h e s e r v i c e , h i s b a s i c language was Tuscan, somewhat Roman, because h i s f ami ly had moved t o Rome when h e was n i n e y e a r s o f age. (His f a t h e r had d ied and they a l l moved t o Rome.)

The North Beach s e c t i o n was a t r u l y I t a l i a n community, You had r e s t a u r a n t s t h a t had been i n o p e r a t i o n f o r many y e a r s . You have t o remember t h a t t h e I tal ian-American community i n North Beach i n San Franc i sco I would s a y , i n many r e s p e c t s , i s t h e most exemplary i n t h e e n t i r e n a t i o n because i t was composed o f I t a l i a n s , many of whom had come t o C a l i f o r n i a i n 1848 and even b e f o r e 1848, most of them from Genoa; most o f them were Genoese o r Piedmontese and t h e n a substan- t i a l number of Tuscans.

I n f a c t , San Franc i sco had t h e f i r s t I t a l i a n opera i n 1850 followed l a t e r by a n o t h e r group t h a t had a r e p e r t o i r e o f f o u r t e e n operas and Madame Bianchi and h e r husband r a n t h e opera house. She became known a s t h e mother o f opera i n C a l i f o r n i a . When s h e d i e d , they wrote q u i t e an e d i t o r i a l about h e r and h e r c o n t r i b u t i o n t o t h e music o f t h e a r e a .

But many of t h e s e people , as I s a i d , came around b e f o r e t h e Gold Rush, i n c l u d i n g [Domingo] G h i r a r d e l l i , who a r r i v e d b e f o r e t h e Gold Rush. He had migrated t o Peru and came t o C a l i f o r n i a i n e a r l y '48. He d i d n ' t go t o look f o r gold . He opened h i s famous c a f e and u l t i m a t e l y went i n t o t h e manufacture of choco la te and h e is t h e founder and b u i l d e r o f what i s now known as G h i r a r d e l l i Square.

I use t h i s a s a n example o f t h e n a t u r e o f t h e I t a l i a n s who came h e r e b e f o r e t h e t u r n o f t h e cen tury . A f t e r t h e t u r n o f t h e c e n t u r y , a g r e a t e r number o f I t a l i a n s came from o t h e r p a r t s of I t a l y , s o u t h e r n I t a l y i n p a r t i c u l a r . We had many s u c c e s s f u l I t a l i a n s . The I t a l i a n Mutual Benef i t Soc ie ty rece ived i ts c h a r t e r from t h e s t a t e l e g i s l a - t u r e i n 1858 and i s undoubtedly t h e o l d e s t mutual b e n e f i t s o c i e t y i n C a l i f o r n i a . There were two I t a l i a n [newspaper] d a i l i e s be ing pub l i shed when I came h e r e t h a t had or iginated--a morning and a n a f t e r n o o n d a i l y . The f i r s t one was pub l i shed i n 1859. One o f them was La Voce d e l Popolo and t h e o t h e r was L I I t a l i a .

These a r e i n d i c a t i o n s o f t h e n a t u r e o f t h e I t a l i a n community i n San Franc i sco . They had t h e i r own dramat ic s o c i e t i e s , p u t on plays-- any number o f s o c i e t i e s . I a m n o t going t o go i n t o a l l o f them and t h e n a t u r e o f t h e i r work, b u t they opened t h e I t a l i a n school i n 1885,

Zi rpo l i : Of course, a f t e r I entered the p r a c t i c e of law, I became i n t e r e s t e d i n I t a l i a n a f f a i r s . I became t r u s t e e and p re s iden t of t h e I t a l i a n school . I became a t to rney f o r and u l t imate ly pres ident of t h e Italian-American Chamber of Commerce. I became a member and u l t imate ly p re s iden t of I1 Cenacolo. I became pres ident of t h e America-Italy Society. I was a l s o a member bu t never an o f f i c e r of t h e Leonardo da Vinci Society. I was i n t e r e s t e d i n t h e work of t h e Sons of I t a l y and joined t h a t group i n 1928, Eventually I became the grand venerable f o r t h e s t a t e of Cal i forn ia . Now, these a r e some i n d i c a t i o n s of my i n t e r e s t i n t h e I t a l i a n community.

I was a l s o i n t e r e s t e d i n t h e work of t h e I t a l i a n Welfare Agency. Then i n 1931 I was one of t h e cha r t e r members and organizers of t h e Columbus Civic Club, which was t o become a p o l i t i c a l arm f o r t h e I t a l i a n s of t h i s community. By t h a t time, t h e I t a l i a n s represented approximately 16 percent of t h e population. I f they had a cause, t he re fo re , they voted a s a bloc. They were very s i g n i f i c a n t i n t h e e l e c t i o n of Angelo Rossi a s mayor i n 1931.

Sharp: I wondered i f you remembered any family a c t i v i t i e s t h a t you might have had when you were younger, i n grammar school , things t h a t you and your family l i ked t o do together?

Zi rpol i : When we were i n Denver, of course, one th ing I always remembered i s t h a t we went t o Steamboat Springs once f o r a b i g vaca t ion . I a l s o remember going t o Colorado Springs.

Here i n San Francisco we had some s o c i a l l i f e based upon some of these s o c i e t i e s . My f a t h e r was a very a b l e speaker and much i n demand, so I would a t t end many of these func t ions where he would speak. I n f a c t , t h a t was one of those f a c t o r s t h a t encouraged me t o ge t i n t o debat ing and i n t o speech. I s t a r t e d making speeches when I was p r e t t y young myself. I remember speaking i n Washington Square on more than one occasion.

Sharp: How o ld might you have been?

Z i rpo l i : O h , t h a t w a s a f t e r I got o u t of co l lege on my graduation.

I1 YOUNG ATTORNEY I N SAN FRANCISCO, 1928-1933

Ear ly P r a c t i c e ; F r iendsh ip w i t h A. P. Giann in i and t h e Bank of I t a l y

Z i r p o l i : Now, upon my gradua t ion from c o l l e g e , I in te rv iewed w i t h a couple of f i r m s downtown and no one o f f e r e d me a job. A t t h a t t i m e , t hey were o n l y g i v i n g you $40 a month. I was walking a l o n g Columbus Avenue and I saw t h e f i r m name [ J u l i a n ] P a r d i n i and [Angelo J . ] Scampini, 21 Columbus Avenue. So I walked up one f l i g h t o f stairs and asked them i f they could u s e a young lawyer. They were b o t h f a i r l y young them- s e l v e s . They s a i d , " A l l we can do i s r e n t you a room a t $20 a month i f y o u ' l l a c c e p t i t ." I s a i d I would accep t .

I a l s o had a n immediate s o u r c e o f income because i n t h o s e days t h e I t a l i a n s were numerous and s t i l l had s u b s t a n t i a l p r o p e r t i e s i n I t a l y , and they had t o i s s u e and send powers o f a t t o r n e y t h e r e from t i m e t o t ime. Also, t h o s e who d e s i r e d t o have t h e i r r e l a t i v e s come '

had t o f i l e w i t h t h e Immigration S e r v i c e a f f i d a v i t s o f maintenance and suppor t which would be p resen ted f i r s t t o t h e American consu l i n I t a l y from whom t h e v i s a w a s t o b e secured . That a s s u r e d me a minimum of $60 o r b e t t e r a month i n income. I n f a c t , I had forms p r i n t e d because t h e n a t u r e and volume of my b u s i n e s s warranted i t .

I d i d ve ry w e l l t h e f i r s t day of p r a c t i c e because my mother gave me some f u r n i t u r e . I bought a n oak desk, a t y p e w r i t e r , some c h a i r s . My f i r s t day, a f t e r t h e f u r n i t u r e had a l l been l a i d o u t , I w a s look ing o u t t h e window and s a w a man a c r o s s t h e s t r e e t w i t h h i s arm i n a s l i n g and a c a r d i n h i s hand. He came a c r o s s t h e s t r e e t and up t h e s t a i r s t o my o f f i c e and when h e e n t e r e d he s a i d t o m e , "I should l i k e t o speak t o Awocato Z i r p o l i . " A t t h e t ime, I looked more l i k e a schoo l boy, I guess.

{I {I

Z i r p o l i : I s a i d , "But I am Z i r p o l i . " He s a i d , "Brother C u b i c i o t t i of t h e Sons o f I t a l y s e n t me t o you and I want you t o b e my lawyer . I f y o u ' l l be my lawyer , w e ' l l go f i f t y - f i f t y . " I s a i d , "What i s i t about?" He had h i s arm i n a s l i n g . He s a i d , "I w a s r i d i n g t h e bus on t h e

Zi rpo l i : Ca l i fo rn i a Trans i t " ( t h e predecessor of Greyhound), "and t h e bus missed t h e br idge a t Niles Canyon."

How could one ask f o r a more p e r f e c t case? An abso lu t e l i a b i l i t y . I s a i d t h a t I would be de l igh ted t o represen t him. And i t wasn't even n ine o 'c lock y e t i n t h e morning!

I got t h e forms t h a t Pa rd in i had and prepared a complaint and a summons and went over t o Alameda County and f i l e d i t and served t h e Ca l i fo rn i a T rans i t . I had lunch on t h e f e r r y boat and came back t o t he o f f i c e , and I was i n t h e o f f i c e about t e n minutes t o one. About f i f t e e n o r twenty minutes l a t e r , I go t a phone c a l l from t h e insurance c a r r i e r [Hartford Connecticut]. They s a i d , "Are you i n t e r e s t e d i n s e t t l i n g t h i s case?" I s a i d , "Of course, I am."

I n t h e meantime, when my c l i e n t came t o s e e m e , I s a i d t o him, "But w e ' l l have t o g e t a r e p o r t from t h e doctor ." "Oh," h e s a i d , "I have it." He reached i n h i s pocket and he pu l led o u t a complete medical r epo r t from t h e doc tor which r e c i t e d no t only t h e n a t u r e of t h e acc ident bu t t h e consequences thereof . H e r e a l l y d i d n ' t have any s e r i o u s i n j u r y , mostly a spra ined shoulder .

The insurance man came over t o s e e m e and t h e same af te rnoon w e t a lked i t over . He wanted t o know how much I wanted i n se t t l ement . I s a i d , "$5000." He s a i d , "I1 11 only g ive you $500 . I 1 I s a i d , "No .I1

We negot ia ted . Since my man had no permanent i n j u r i e s , and I am t a l k i n g about 1928, we s e t t l e d i t f o r $1,300. I remember w e went t o the bank. We were a b l e t o ge t t h e r e before c lo s ing t i m e and he s igned a l l of t h e necessary papers. W e received t h e check, went t o t h e bank, cashed i t . I gave him $700 and I kept $600.

Sharp: A l l on your f i r s t day!

Zi rpol i : I s a i d , "My gosh, i s t h i s what t h e law p r a c t i c e is a l l about?"

Sharp: I t 's p r e t t y easy.

Z i rpo l i : Well, i t was a long time before anything l i k e t h a t happened again, but i n a l l events , t h a t was a very, very f o r t u n a t e and happy beginning. When I s t a r t e d t o p r a c t i c e law, I received a phone c a l l from A. P. Giannini i n v i t i n g me t o lunch a t B a r d e l l i ' s Restaurant . Every once i n a whi le he would i n v i t e me t o lunch.

I n 1931, w e had t h e b ig proxy f i g h t f o r con t ro l of t h e Bank of I t a l y . *

*For more information on t h i s proxy f i g h t , readers a r e d i r ec t ed t o Marquis James and Bessie Rowland James, Biography of a Bank, New York: Harper and Brothers, 1954, e s p e c i a l l y pp. 305-346.

Sharp: I was going t o ask you about t h a t . I wondered i f you had been involved.

Z i r p o l i : I w a s involved i n a s e n s e . I had p r e v i o u s l y p repared a memorandum, a l e g a l memorandum, f o r P a r d i n i and Scampini w i t h r e l a t i o n t o a concern i n t h e East Bay which w a s involved i n a proxy f i g h t . Because o f t h a t , they asked m e t o p r e p a r e a memorandum and i n d i c a t e how they could s t o p t h e [ E l i s h a ] Walker group from u s i n g B a n c i t a l y funds f o r t h e s e c u r i n g o f p r o x i e s . [Lawrence] Mario Giann in i ( t h e s o n of A.P.) asked m e t o do t h a t . I prepared t h e memorandum and, o f course , they r e c e i v e d i t f r e e . I guess they f i g u r e d I was too inexper ienced , s o they h i r e d t h e a t t o r n e y s S u l l i v a n and Roche who d i d e x a c t l y e v e r y t h i n g I s a i d they shou ld do, b u t they f i l e d i n t h e wrong c o u r t . [ l aughs] They rece ived $20,000.

I n p r e p a r a t i o n f o r t h e proxy f i g h t , we used t o meet every day a t P e t r i ' s c i g a r f a c t o r y , which i s a n enormous b u i l d i n g on Sansome S t r e e t . They e v e n t u a l l y went i n t o t h e wine b u s i n e s s . 1t's a wel l - known name i n t h e wine i n d u s t r y . There t h e y would have lunch. They had a husband and w i f e who would p r e p a r e lunch e a r l y f o r t h e working s t a f f and l a t e r f o r t h e e x e c u t i v e s . We would a l l go t h e r e f o r lunch and d i s c u s s t h e proxy f i g h t . The proxy f i g h t was conducted l i k e you would a p o l i t i c a l campaign.

Sharp : T h a t ' s what i t sounded l i k e .

Z i r p o l i : Angelo Scampini became t h e f i r e b r a n d f o r t h e proxy f i g h t .

Sharp: I understood t h e r e was s o r t of a campaign t o u r o f t h e s t a t e ,

Z i r p o l i : T h a t ' s r i g h t , t h e r e was a campaign. As you s a i d , i t w a s p u t on l i k e a p o l i t i c a l campaign. You went t o Sacramento. You n o t i c e d a meet ing i n t h e b i g h a l l t h e r e and i n v i t e d a l l of t h e s t o c k h o l d e r s . Scampini would g e t up and make a speech and t e l l them how J e a n Monnet, one of t h e Bank of America o f f i c e r s , was squander ing t h e bank 's funds by spending i t on g i f t s and f lowers and t h e en te r ta inment o f women [ l aughs] and t h i n g s o f t h i s c h a r a c t e r . He a l s o made a b i g speech a t Dreamland [ i n San F r a n c i s c o ] . When they would go o u t , A.P. would make s u r e t h a t Angelo go t p l e n t y of r e s t .

I r e c a l l we were i n Sacramento i n t h e r e s t a u r a n t d u r i n g t h e proxy f i g h t and some f e l l o w e n t e r e d t h e r e s t a u r a n t and he s a i d , "They t e l l me t h a t SOB A . P . Giann in i is h e r e . Where is he?" A.P. looked up a t him and h e s a i d , "Yes, I r e c a l l you. You a r e t h e fe l low t h a t always wanted t o s e l l me t h e wors t type o f s t r a w b e r r i e s when I w a s i n t h e produce bus iness !" [ l a u g h t e r ]

Now, I mention t h a t because A.P. had a phenomenal memory, a n a b s o l u t e l y phenomenal memory, which w a s one o f h i s s t r o n g p o i n t s . A.P. was a man who would a c c e p t your word, b u t i f you e v e r broke i t ,

Zi rpo l i : you were through. You cou ldn ' t g e t anywhere w i th A.P. anymore a f t e r t h a t . You have t o remember t h a t when A.P. s t a r t e d t h e Bank of I t a l y , t h e r e wasn't a word i n t h e l o c a l papers about h i s opening of t h e Bank of I t a l y . There w a s i n t h e I t a l i a n paper , b u t n o t i n t h e l o c a l . When h e won t h e proxy f i g h t by a l a n d s l i d e i n 1932, a l l of t h e papers had head l i ne s t h a t r e ad , "Giannini ha v i n t o , " Giannini ha s won.

Then, as I s ay , I had t h i s exper ience. I was n o t as a c t i v e i n i t as, l e t ' s say , Scampini o r someone l i k e t h a t , i n t h e proxy f i g h t . I w a s somewhat r e l u c t a n t t o ge t too a c t i v e because one of my dea r f r i e n d s was Armando P e d r i n i , v ice -pres iden t , who was on t h e o t h e r s i d e . So t h e r e were some s m a l l problems t he r e . As a ma t t e r of f a c t , P e d r i n i w a s t h e p r e s iden t o f I1 Cenacolo a t t h e t ime, and a f t e r t h e proxy f i g h t he had t o r e s i g n . A.P. was a member. of t h e Cenacolo, too. We had c lub rooms i n t hose days a t t h e Fairmont Hotel . We had a s u i t e t h e r e and l ove ly c l u b rooms which we gave up i n t h e beginning of b7orld War I1 because of t h e l a c k of housing space f o r t h e m i l i t a r y i n San Francisco.

I n 1931, a t t h e time of t h e proxy f i g h t , I went t o s e e A.P. I s a i d t h a t I would l i k e t o b e appointed a s s i s t a n t d i s t r i c t a t t o r n e y f o r t h e c i t y and county of San Franc i sco , and t h a t t h e men i n charge of t h e o f f i c e of t h e d i s t r i c t a t t o r n e y , Matthew Brady, would never l e t me i n t o s e e him.

A.P. s e n t me t o s e e Tom Finn. Tom Finn was then t h e Republican p o l i t i c a l boss o f San Francisco. When I sat down to t a l k t o M r . F inn, I s a i d , "Mr. Finn, you must understand t h a t I a m a Democrat, a ded ica ted Democrat." He j u s t turned t o me and s a i d , "A.P. s e n t you, d i d n ' t he?" That w a s enough. He telephoned Brady and t h e nex t morning, I w a s working a s an a s s i s t a n t d i s t r i c t a t t o r n e y .

Sharp: Let me s t o p you r i g h t t h e r e because I want t o back up and a sk you some o t h e r ques t i ons . I had some o t h e r ques t i ons about your going i n t o p r i v a t e p r a c t i c e . I wondered i f you d i d any work a t a l l f o r P a r d i n i and Scampini o r were you j u s t housed t h e r e ?

Z i r p o l i : Oh, I d i d some r e sea r ch f o r them, yes . I n f a c t , I remember t h e f i r s t c a se I researched f o r them. My r e sea r ch proved t h a t they were a l l wrong, s o they weren ' t too happy w i th t h a t f i r s t r e s ea r ch .

I remember ano ther c a se t h a t I wro te t h e b r i e f s on f o r them i n t h e d i s t r i c t c o u r t and t h e c o u r t of appea l s and we won. That had t o do w i t h a t r u s t over i n Marin County and t h e method of t h e u se of t h e funds of t h e t r u s t .

But my p r a c t i c e moved p r e t t y f a s t w i t h m at her's connect ions and my I t a l i a n and knowledge of t h e language. When I s t a r t e d my f i r s t month, I must have earned $120, which a t t h a t t ime w a s n o t bad. I never earned l e s s than $200 and up throughout t h e Depression.

Z i r p o l i : Now, I had i n v e s t e d i n s t o c k s . I borrowed money and bought Banc i ta ly and Bank of I t a l y s t o c k s and when I graduated, I had an e q u i t y of $46,000. When t h e c r a s h came i n 1929, t h e famous b l u e Monday, I was s o l d o u t and I was l e f t owing t h e Bank of America-- t h e Bank o f I t a l y , I s h o u l d say--$10,000. I went t o see Mario Giann in i about i t and s a i d , "I don ' t see how I ' ll e v e r b e a b l e t o pay back t h e $10,000. I f you cou ld c u t i t down t o f i v e , I cou ld go o u t and maybe I could borrow f ive ' f rom h e r e and t h e r e and e v e n t u a l l y I can someday pay back $5000." H e s a i d , "No, you are a n honorab le man and w e ' l l ho ld you t o your indebtedness ." Now, they d i d se t t le w i t h t h e people as t o whom they had some q u e s t i o n of whether they would e v e n t u a l l y c o l l e c t . That exper ience had some v a l u e i n later y e a r s , i n t h a t when I r e t u r n e d t o t h e p r a c t i c e o f t h e law a f t e r l e a v i n g t h e o f f i c e o f t h e U.S. a t t o r n e y , Mario Giannini a r ranged f o r m e t o r e n t a s u i t e i n t h e Bank o f America Bui lding, and h e a l s o s e n t some of t h e bank's b u s i n e s s t o m e .

A s I s a y , t h i s w a s t h e s i t u a t i o n a t t h a t t i m e . So I was doing f a i r l y w e l l . I had c a s e s i n t h e f e d e r a l c o u r t r i g h t o f f t h e b a t . I g o t a coup le of P r o h i b i t i o n c a s e s , too.

Sharp: I w a s going t o a s k you about t h a t .

Z i r p o l i : I represen ted two pharmac is t s . The Department of J u s t i c e had i n d i c t e d some f i f t y pe rsons f o r consp i racy t o v i o l a t e t h e law by t h e s e l l i n g of a l c o h o l i c beverages , presumably under p r e s c r i p t i o n i n a consp i racy w i t h a couple o f d o c t o r s . They o f f e r e d t o a c c e p t p l e a s of g u i l t y from my c l i e n t s and t h e y would f i n e them on ly $250, b u t I s a i d , "No .'I The c a s e s never went t o t r i a l . Eventual ly t h e r e w a s r e p e a l [of P r o h i b i t i o n ] and t h a t ended t h e c a s e s as t o my p a r t i c u l a r c l i e n t s .

I a l s o r e p r e s e n t e d one b i g boo t legger who w a s a heavy i n v e s t o r and wi th t h e c r a s h h i s brokerage f i r m s o l d him o u t , I concluded t h a t they s o l d him o u t a t t h e lowest q u o t a t i o n presumably f o r each day f o r each s e c u r i t y , s o I f i l e d a l a w s u i t i n t h e f e d e r a l c o u r t i n which I was s u c c e s s f u l . They s a i d t h a t my c l i e n t owed them [ t h e f i rm] a s u b s t a n t i a l amount o f money. I was s u c c e s s f u l because I go t them t o c a n c e l t h i s a l l e g e d indebtedness t o them and t o pay him $10,000, which gave m e a f e e o f $5,000, a l o t of money a t t h a t t ime.

Sharp : That's a l o t !

Z i r p o l i : [ l aughs] Yes, i t was.

I n f a c t , t h i s w a s dur ing t h e t ime when Judge [Harold] Louderback w a s s i t t i n g and w a s p a s s i n g o u t t h e r e c e i v e r s h i p s t h a t e v e n t u a l l y l e d t o h i s impeachment, b u t t h a t ' s something I w i l l have t o g e t i n t o a t a later t ime i n my s t o r y .

Sharp: Were you c o n c e n t r a t i n g on a c e r t a i n s p e c i a l t y ?

r p o l i : No, I d i d n ' t . I had a g e n e r a l p r a c t i c e . I had a n e a r l y exper ience i n a p e r s o n a l i n j u r y c a s e i n which my c l i e n t was t r u l y a t f a u l t and h e c o u l d n ' t win. Th is f e l l o w was s e v e r e l y i n j u r e d f o r l i f e . I remember going through t h e t r i a l and Judge S h o r t h a l l s e n t f o r him and asked me how I thought I could p o s s i b l y win t h a t case . The j u r y was n i n e t o t h r e e a g a i n s t m e . During t h e t r i a l , I was s o worr ied and concerned t h a t I c o u l d n ' t h o l d my food , and I j u s t decided I wasn ' t going t o hand le any more p e r s o n a l i n j u r y cases .

A f t e r t h a t I farmed them o u t , which was b e t t e r f o r me because I d i d g e t a number o f them. I was a b l e t o g i v e them t o t h e a b l e s t p e r s o n a l i n j u r y lawyers i n t h e community and c o l l e c t approximately one- th i rd o f t h e f e e . I would do a l o t of t h e i n v e s t i g a t i o n f o r them and h e l p them i n t h e p r e p a r a t i o n , b u t t h e r e s p o n s i b i l i t y would always be t h e i r s .

From 1928, when I g o t o u t o f c o l l e g e , I decided t o g e t i n t o p o l i t i c s and I jo ined t h e A 1 [Al f red E.] Smith [ p r e s i d e n t i a l ] cam- p a i g n and was ass igned t o t h e s p e a k e r s ' bureau. There were ve ry few Democrats i n San Franc i sco and t h i s a r e a a t t h e t i m e and I d i d n ' t make a s i n g l e speech. I d o n ' t know t h a t anyone e l s e on our s p e a k e r s f bureau had a n o p p o r t u n i t y t o make a speech e i t h e r . I n 1932, I was very much i n t e r e s t e d i n t h e [ F r a n k l i n Delano] Roosevelt campaign. The Young Democrats were j u s t forming then.

Sharp: I wanted t o a s k you about t h a t . Smith was t h e f i r s t C a t h o l i c t o have g o t t e n t h e p r e s i d e n t i a l nomination. Was t h a t a p r e t t y important--

Z i r p o l i : Oh, I d o n ' t doubt t h a t i t had some importance, b u t I would n o t say t h a t i t was t h e most s i g n i f i c a n t f a c t o r i n h i s d e f e a t . The most s i g n i f i c a n t f a c t o r i n h i s d e f e a t i s t h a t e v e r y t h i n g was going b e a u t i f u l l y . The s t o c k market was r i s i n g , c o n d i t i o n s i n t h e country were g r e a t , and t h e r e was no reason n o t t o expect t h a t [Herber t ] Hoover was going t o g i v e you a ch icken i n every p o t .

Sharp: Your Democratic p a r t y work t h a t you s t a r t e d i n '28, was t h a t p a r t of a n Ital ian-American e f f o r t o r j u s t p a r t o f a San Francisco--

Z i r p o l i : No, n o , i t was p a r t o f San Franc i sco a s a whole. P r i o r t o t h a t , I had campaigned f o r P a t [Edmund G . , S r . ] Brown who w a s running f o r d i s t r i c t a t t o r n e y [ i n San Franc i sco] under t h e banner of Cincinnatus INew Order o f Cinc inna tus ] , a s we c a l l e d t h e s o c i e t y . * There were

"Readers a r e d i r e c t e d t o l eng thy o r a l h i s t o r y conducted w i t h Edmund G. Brown, S r . , Years o f Growth, 1939-1966: Law Enforcement, P o l i t i c s , and t h e Governor 's O f f i c e , Regional Oral H i s t o r y O f f i c e , The Bancrof t L i b r a r y , U.C. Berkeley, 1982.

PRESIDENT A.. J. ZIRPOLI

Zirpoli, born in Denver, Colorado,

of Italian parents, on April 12,

1a5; has resided in California

since the spring of 1918, is a grad-

uate of Washington Grammar and

Lowell High Schools of San Fran-

cisco; received his A. B. degree a t

the University of California a t Berkeley in 1926, and in 1928 received his J. D. (Juris Doctor) degree from the School of Jurisprud- ence of the University of Califor- nia a t Berkeley.

Since 1928 he has practiced his profession a s a lawyer in San R a n - cisco, and in that year's embroglio campaigned actively in behalf of Alfred E. Smith, Democratic nominee for President. In March of ,1932 he- was appointed assistant district attorney for the city and .county of San Francisco, which office he held until August 30, 1933, when he was appointed assistant Pnited States attorney for the' northern district of California.

In 1932 he campaigned actively for the cause of Franklin D. Roo~e- velt, both before and following the Nstional Democratic Convention. In the same year together with

C a l i f o r n i a Young Democrat other Young Democrats in San Los Angeles, C a l i f o r n i a Francisco, he joined in the move- 26 August 1935 ment to organize the San Francis-

co Young Democratic Club.

He is a director and counsellor for the Italian Chamber of Com- merce, vice-president of the Colum- bus Civic Club, and is a member of the Olympic Club and numerous other clubs in 'San Francisco and the bay region.

A t the same meeting J. J. Irwin. former national committeeman, was appointed chairman of the southern speakers bureau by Executive Vice- President Robert Riddell.

Zirpol i : a number of Democrats t he re , but a s I s a i d , I always f e l t myself an avowed Democrat and I joined t h e A 1 Smith campaign,

In 1932, A.P. Giannini decided he was going t o support Roosevelt. The Treasury Department and t h e Ca l i fo rn i a s t a t e c o n t r o l l e r ' s o f f i c e weren't g iv ing him t h e bank branches and some of t h e concessions o r th ings t h a t he f e l t he needed. So h e decided t h a t he was going t o support Roosevelt, but A.P. was not a man who campaigned. He d is - l i k e d making speeches and s o he sen t f o r me and Scampini and we became h i s r ep re sen ta t ives , s o t o speak.

I r e c a l l we went t o southern Ca l i fo rn i a t o a dinner a t t h e Biltmore Hotel and met w i th [Cal i forn ia] Senator IWilliam G. ] Mc Adoo, and t h e pres ident of t h e Universi ty of Southern Ca l i fo rn i a , who was an a c t i v e Democrat a t t h e time. They had a b i g d inner t o r a i s e campaign funds. But we had no commitments from A.P., so we couldn ' t make any o f f e r s . He n a t u r a l l y cont r ibu ted l a t e r . He a l ready was cont r ibu t ing almost--well, h e was con t r ibu t ing t o Senator Mc Adooss campaign and supported Senator Mc Adoo.

Now, I got t o know Senator Mc Adoo very we l l a s a r e s u l t of t h a t r e l a t i onsh ip . When he came t o San Francisco on h i s Sena to r i a l campaign i n 1932, I arranged a b i g dinner fo r him a t t h e St . Francis Hotel. We had over 250 people there. That was p r e t t y good f o r a p o l i t i c a l dinner i n those days. We had a half-hour of rad io time and he came ou t f o r repea l . He was always known a s a dry and t h i s was a b i g event f o r Senator Mc Adoo t o come out f o r repea l .

A l l of the people who were i n t e r e s t e d i n g e t t i n g i n t o the wine indus t ry and t h e grape growers were very glad t o a t t end . It proved t o be a very successfu l dinner . I had Miss I t a l y t he re a s our guest t o s i t with Senator Mc Adoo and then we put on a s k i t . We had an I t a l i a n man who used t o prepare t h e scenery f o r t he S.F. opera company. He put o n a n actshowing r epea l , recovery, and reconstruc- t i o n , t he th ree R s .

Af te r t h e dinner , t hese famous plaques used i n our s k i t d i s - appeared. A few days l a t e r I went t o t he Orpheum Theater and Horace Heidt put t h e same s k i t on t h e s t age .

A s I say , a s A.P.'s r ep re sen ta t ive , we got i n p r e t t y wel l with t he so-called l eade r s of t h e Democratic par ty . A s I was then a Young Democrat, i n 1935 I became s t a t e pres ident of t h e Young Demo- c r a t s and presided a t t he na t iona l convention of Young Democrats i n Indianapolis . President Roosevelt spoke t o us by means of a phonograph d i s k t h a t he had prepared. I made t h e in t roductory remarks and then turned on t h e d isk and he then spoke to us . Then I introduced M r s . .[Eleanor] Roosevelt and she spoke t o us , and I got t o know he r . She was q u i t e i n t e r e s t e d i n t h e Young Democrats. J.F.T. O'Connor, who became c o n t r o l l e r of currency, was a l s o i n t e r e s t e d i n the Young Democrats.

Sharp: Let m e ask you about M r . Roosevelt. I had seen a no t e t h a t A l Smith was a r e a l opponent of Rooseve l t r s New Deal p o l i c i e s . I wondered i f your work campaigning f o r Roosevelt , i f t h a t represented some s o r t of major conversion f o r you?

Zi rpol i : No, t h e r e was never a conversion of m e . [laughs] As I s a i d , I was a dyed-in-wool Democrat and i t d i d n ' t make any d i f f e r ence who t h e candidate was. The only t i m e t h a t I ever changed was when J i m IJames] Rolph, who was mayor of San Francisco [1911-19301 and whom I knew ( i n f a c t , I spoke wi th him a t two b i g d inners t h a t I r e c a l l ) , became a candida te f o r governor [1?30]. I changed my r e g i s t r a t i o n s o t h a t I could vo te f o r him f o r t h e Republican nomination. Then I changed my r e g i s t r a t i o n back aga in because i t was f o r t h a t s o l e purpose.

We'll ge t up t o 1948 l a t e r and t h a t ' s another aspec t of my p o l i t i c a l l i f e .

A s I say, a s t h e s t a t e pres ident of t h e Young Democrats and a s chairman of t h e n a t i o n a l convention of Young Democrats, I go t t o know J i m Far ley f a i r l y w e l l . I was i n t h e United S t a t e s a t t o r n e y ' s o f f i c e and w e had no Hatch Act a t t h a t t i m e , s o even though you w e r e an a s s i s t a n t United S t a t e s a t t o rney , you could engage i n p o l i t i c s . In August of 1933, I was appointed a s s i s t a n t United S t a t e s a t t o rney pr imar i ly because of my r e l a t i o n s h i p wi th Senator Mc Adoo. I n f a c t , t h e r e was another f r i end of mine who wanted t o be appointed i n southern Ca l i fo rn i a . I contacted Senator Mc Adoo and t h i s f r i e n d was appointed.

I continued i n the United S t a t e s a t t o r n e y ' s o f f i c e u n t i l 1944, bu t i n 1936 I was named a s a de lega te a t l a r g e f o r Roosevelt f o r t h e Democratic n a t i o n a l convention i n Phi ladelphia . J u s t before t h a t , Senator [Culbert L.] Olson, who l a t e r became governor [1939-19431, was campaigning f o r "production f o r use." He wanted t o send a de lega t ion t o t h e Democratic convention of 1936 t h a t would pledge i t s e l f t o "production f o r use" and, t he re fo re , would no t neces sa r i l y be a Roosevelt de lega t ion . But Henry H. McPike, who was t h e United S t a t e s a t t o rney and who w a s very f r i e n d l y t o Olson, asked me t o meet with Senator Olson a t t h e Whitcomb Hotel .

When I got t he re , Senator Olson asked m e i f I would have t h e Young Democrats j o i n and campaign f o r h i s t i c k e t of de l ega t e s a t t h e Democratic convention. I s a i d , "No, we don't p a r t i c i p a t e i n t h e pr imar ies . W e go o u t and t r y t o e n r o l l people and r e g i s t e r them and do everything w e can, bu t we accept t h e pa r ty nominees and we don ' t indulge i n t h e s e prel iminary campaigns. " I thought t h a t McPike would be so re , bu t apparent ly he wasn ' t . Anyway, we re turned t o t he o f f i c e .

Z i r p o l i : About f o u r o r f i v e days a f t e r t h a t meeting, I rece ived a te legram from Far ley s a y i n g t h a t h e was naming me and t h r e e o t h e r Young Democrats ( t h a t I could name) as I ioosevel t ' s s e l e c t i o n f o r d e l e g a t e s t o t h e n a t i o n a l convention. So I became a d e l e g a t e a t l a r g e and a t t e n d e d t h e Democratic n a t i o n a l conventfon. I merely se rved as one o f many honorary s e c r e t a r i e s .

I was a s s i s t a n t U.S. a t t o r n e y a t t h e t ime and I had some doubt i n my mind as t o spending a l l o f themoney needed t o go back t o t h e convent ion i n P h i l a d e l p h i a , which was a foregone conclusion. But i n t h o s e days an a s s i s t a n t United S t a t e s a t t o r n e y could be named as a deputy marshal t o accompany t h e marshal when he was t a k i n g a p r i s o n e r t o some d i f f e r e n t l o c a l i t y . At t h e t i m e , t h e r e was a p r i s o n e r t o b e t r a n s p o r t e d t o P h i l a d e l p h i a . So I was appointed a deputy marshal , and we t r a n s p o r t e d t h e p r i s o n e r t o P h i l a d e l p h i a , and I a t t e n d e d t h e convent ion.

Of course , everybody is named--I was named a n honorary s e c r e t a r y . They t a k e c e r t a i n people i n each s ta te and each one would be named a n honorary s e c r e t a r y o f t h e convent ion. Th is c a r r i e s me i n t o t h e 1936 campaign.

Now, I haven ' t t a l k e d about my work i n t h e U.S. a t t o r n e y ' s o f f i c e .

Sharp: I thought we might do t h a t n e x t t i m e .

Z i r p o l i : A l l r i g h t , now con t inu ing t h e n , as I s a y , i n 1936, when I was t h e n th i r ty -one y e a r s o f age , a vacancy a r o s e i n t h e o f f i c e o f t h e p r e s i d e n t o f t h e F e d e r a l Land Bank of t h e e leven wes te rn s t a t e s . I went t o see A.P.--Armando, my b r o t h e r , was w i t h t h e Bank o f America a t t h e tfme--and I t o l d A.P. I would l i k e t o be p r e s i d e n t of t h e Federa l Land Bank. H e turned t o h i s s e c r e t a r y and s a i d , " G e t m e Senator Mc Adoo on t h e phone." He t a l k e d t o t h e Sena tor and then h e tu rned t o m e ( I could o n l y g e t p a r t s of h i s conversa t ion w i t h t h e Senator) and s a i d , " A l l r i g h t , Senator Mc Adoo s a i d h e is going t o send your name i n t o t h e p r e s i d e n t [Roosevel t ] ." H e would have t o submit i t t o t h e Senate f o r conf i rmat ion.

I l e f t A.P.'s o f f i c e and I was walking down Montgomery S t r e e t . I m e t Maurice Har r i son who was t h e l e a d i n g Democratic f i g u r e i n t h i s a r e a . He s a i d t o me, "How are you g e t t i n g a long , son? Why don ' t you come u p s t a i r s t o my o f f i c e and w e ' l l t a lk . ' ' So I went u p s t a i r s t o h i s o f f i c e , t h e Brobeck, Ph leger , and Har r i son o f f i c e , and h e asked me how I was g e t t i n g a long and what I was doing.*

*For a d d i t i o n a l in fo rmat ion on t h i s f i r m , see two o r a l h i s t o r i e s w i t h Herman Ph leger , S i x t y Years i n Law, P u b l i c S e r v i c e and I n t e r n a t i o n a l A f f a i r s (1979), and Observat ions on t h e U.S. D i s t r i c t Court f o r t h e Northern D i s t r i c t o f C a l i f o r n i a , 1900-1940 (1981), bo th completed by t h e Regional Oral His to ry O f f i c e , The Bancrof t L ib ra ry , U.C. Berkeley.

Lrs i n Law, P u b l i c S e r v i c e and I n t e r n a t i o n a l Af f a i r s (1979) and o b s e r v a t i o n s on t h e U. S . D i s t r i c t Court f o r t h e Northern D i s t r i c t o f C a l i f o r n i a , 1900-1940 (1981), bo th completed by t h e Regional Oral His to ry O f f i c e , The Bancrof t L ib ra ry , U.C. Berkeley.

Z i r p o l i : I t o l d him t h a t I had j u s t come from a meeting w i t h A.P., and h e s a i d , "Why do you want t o do t h a t ? You're a good lawyer and you have a p o l i t i c a l f u t u r e . You shou ldn ' t do t h a t . "

So I thought abou t i t f o r a coup le o f days and decided maybe I shou ldn ' t . I went back t o s e e A.P. and h e looked a t me and i n h i s g r u f f way [ laughs] s a i d , "Ah., c a n ' t you make up your mind?" H e s a i d , "Get m e Senator M c Adoo on t h e phone." H e g o t Senator M c Adoo on t h e phone and I heard A.P. s a y , "Tel l them t o withdraw it." Then h e turned t o m e and h e s a i d , "Now, you s e e a l l t h e t r o u b l e you have caused? The p r e s i d e n t is send ing your name i n t o t h e Senate and I have t o t e l l Mc Adoo t o t e l l them t o withdraw it."

Sharp: Were you embarrassed?

Z i r p o l i : Y e s , n a t u r a l l y I was embarrassed and t o have A.P. s a y g r u f f l y t o me, "Can't you make up your mind?" But as I s a i d , I would s t i l l have lunch wi th him o c c a s i o n a l l y .

Then t h e r e was a famous SEC [ S e c u r i t i e s and Exchange Commission] h e a r i n g i n v o l v i n g Bank of America, Transamerica, and branches [around 19391, and t h e S e c u r i t i e s and Exchange Commission was going t o s t o p , o r wanted t o s t o p , t h e t r a n f e r o f c e r t a i n banks t o t h e Bank of America which would become branches o f t h e Bank o f America.

A.P. was a t t e n d i n g t h e h e a r i n g which was i n t h e grand j u r y room of t h e o l d c o u r t house and p o s t o f f i c e b u i l d i n g . A.P. was s e a t e d r i g h t t o my l e f t i n t h e f r o n t row. I was h e r e [ g e s t u r e s s e a t i n g ] and A.P. was t o my l e f t . They had a f e l l o w who l a t e r became p r e s i d e n t o f t h e C e n t r a l Bank of Oakland (I c a n ' t remember h i s name a t t h e moment) who was t e s t i f y i n g , a man whom A.P. had thrown o u t of t h e Bank o f America and whom A.P. d i s t r u s t e d . While h e was t e s t i f y i n g , A.P. g o t up, six-feet-two, p o i n t e d h i s f i n g e r a t t h e f e l l o w and s a i d , "That ' s a d a m l ie ." I p u l l e d on h i s c o a t t a i l s and I looked up a t him and I s a i d , "Mr. A.P., you c a n ' t do t h a t . " H e looked down a t m e and s a i d , "But I d i d , son , d i d n ' t I ? "

So i n l a t e r y e a r s when I went on t h e bench and my law c l e r k s would t e l l m e I c a n ' t e n t e r a p a r t i c u l a r o r d e r , I would t e l l them t h e A.P. s t o r y .

Now, con t inu ing , where am I now?

Addi t iona l Notes on Family and t h e I t a l i a n Community

Sharp: I wanted more about your p o l i t i c a l a c t i v i t i e s , b u t l e t me t a k e you back j u s t f o r a couple o f o t h e r q u e s t i o n s .

I wondered how you might a s s e s s t h f s whole p e r i o d w i t h r e s p e c t t o t h e I t a l i a n communfty? There were a l o t of t h i n g s gofng--the 1929 c r a s h , t h e Depression. But b e s i d e s t h a t , t h e r e were t h e beginnings o f f a s c i s m i n Europe and some p r e t t y extreme p o l i t i c a l a c t i v i t y .

Z i r p o l i : Again, l e t ' s go back. F i r s t o f a l l , t h e I t a l i a n s were predominantly Republican. They were p r o p e r t y owners. The c r a s h d i d n o t a f f e c t them v e r y much and t h e Depression a f f e c t e d them n o t t o t h e d e g r e e o f o t h e r s because, on t h e whole, they were i n p r e t t y good shape. A s I s a i d , they were b a s i c a l l y Republican i n t h e i r p o l i t i c s . Many of them undoubtedly voted f o r R o o s w e l t because o f A.P. and h i s unques- t i o n e d i n f l u e n c e , and t h a t i n f l u e n c e was f e l t throughout a l l of t h e branches o f t h e Bank of America i n t h e s t a t e o f C a l i f o r n i a .

Now, w i t h t h e advent o f [Beni to] Mussol ini , they a l l looked f a v o r a b l y upon Musso l in i . I n f a c t , t h e newspaper, L ' I t a l i a , i ts e d i t o r and p u b l i s h e r was a g r e a t f a n o f Mussol ini , s o h e [ E t t o r e P a t r i z i ] played him up b i g and they would p r a i s e him a t most of t h e r a l l i e s . Th i s was t r u e i n t h e e a r l y t h i r t i e s . I am n o t t a l k i n g about when you s t a r t g e t t i n g c l o s e t o '37, '38, and '39 when t h e changes came. When Mussol ini l i n e d up w i t h [Adolph! H i t l e r , some of t h a t a t t i t u d e changed.

Z i r p o l i : Before l i n i n g up w i t h H i t l e r h e had accomplished many c o n s t r u c t i v e t h i n g s which were pra iseworthy. Now, t h i s was b e f o r e h e r e a l l y l i n e d up w i t h H i t l e r , o f course , i n t h e e a r l y days of fascism. I remember going t o s e e t h e newsreel , l i k e Path6 news. I remember a l s o s i t t i n g i n t h e audience and they f l a s h e d on t h e s c r e e n , "The f i r s t d i c t a t o r governor o f America, Governor McNutt of Indiana." So h e r e you a r e , t h i s a t t i t u d e w i t h r e l a t i o n t o fasc i sm depended on t h e p e r i o d invo lved .

It wasn ' t u n t i l H i t l e r got i n t o t h e p i c t u r e , which was sub- s t a n t i a l l y l a t e r , when Mussol ini jo ined w i t h H i t l e r , you had t h i s tu rnabout , s o t o speak. Of course , t h o s e I t a l i a n s who were en thus ias - t i c f o r Mussol ini , o r could be deemed F a s c i s t s , e v e n t u a l l y became problems when we e n t e r e d i n t o t h e war.

Now, my f a t h e r , I s a i d , r e s i g n e d from t h e [ I t a l i a n ] c o n s u l a t e i n 1939. He res igned from t h e c o n s u l a t e i n 1939 because h e saw what was coming, c l e a r l y saw i t , and h e t o l d a l l o f t h e members of

Z i r p o l i : t h e family t h a t i t was i n e v i t a b l e t h a t America would b e involved i n t h e war on t h e s i d e o f t h e Allies and n o t t h e Axis and, h e wasn ' t going t o b e i n t h e I t a l i a n s e r v i c e w i t h t h a t a s a p r o s p e c t i v e f u t u r e , s o t o speak. So a s I say , h e l e f t t h e c o n s u l a t e and went i n t o t h e insurance bus iness .

Sharp: There was a p e r i o d b a s i c a l l y i n 1932 when H i t l e r came i n t o power through 1939 when your f a t h e r l e f t t h e c o n s u l a t e . How did h e beg in t o see what was going on? Did h e t a l k about i t a l o t ?

Z i r p o l i : H e began t o see what was going on because , a f t e r a l l , my f a t h e r was, as I s a i d , q u i t e an h i s t o r i a n . As f a r as what was happening i n d i p l o m a t i c c i r c l e s , h e was always v e r y knowledgeable and h e could see t h i s change i n t h e movement o f H i t l e r and t h e manner i n which H i t l e r was t a k i n g over . Not only t h a t , b u t h e had a cousfn i n Rome who w a s t h e o f f i c i a l photographer f o r t h e r o y a l family and e v e n t u a l l y f o r Mussol ini . He would send my f a t h e r photographs. I r e c a l l a photo o f Mussol ini g r e e t i n g H i t l e r a t t h e Rome ra i lway s t a t i o n . W e r ece ived many photographs o f Mussol ini and H i t l e r and [Herman] Goering; a f a n t a s t i c c o l l e c t i o n , which, when P e a r l Harbor came, my mother burned them a l l . She pu t them i n t h e t r a s h burner and burned them a l l . She d i d n ' t want them around. It was t o o bad; i t was u n f o r t u n a t e . It was a f a n t a s t i c c o l l e c t i o n .

A s I s a y , my f a t h e r saw i t coming. I n f a c t , my f a t h e r , h e d i e d i n 1942, n o t l o n g a f t e r t h e war was d e c l a r e d , was somewhat broken- h e a r t e d by t h e whole th ing . He wanted America and I t a l y t o become f r i e n d s , p a r t i c u l a r l y I would say because o f h i s s o n s , i f I had t o make a n a n a l y s i s o f t h e reason t h e r e f o r .

But t h e r e was t h i s i n t e r e s t , a s I s a y , because they were g e t t i n g good r e p o r t s o u t o f I t a l y . I mean Mussol ini was doing some good t h i n g s . As a matter o f f a c t , we copied o u r S o c i a l S e c u r i t y sys tem a f t e r t h e s o c i a l s e c u r i t y system h e had invoked, s o t h a t t h i s was some i n d i c a t i o n of what h e was doing. This s o c i a l s e c u r i t y t h a t h e invoked i n I t a l y and provided was a b i g t h i n g . People t a l k e d about running t h e t r a i n s on t i m e and they joke about t h a t , b u t t h i s program t h a t I j u s t mentioned was o f r e a l s i g n i f i c a n c e t o t h e populace. Of course , h e was r e b u i l d i n g every th ing . He r e b u i l t t h i s so -ca l l ed Euro-vi l lage t h e r e o u t s i d e o f Rome. There was a g r e a t d e a l t h a t was done--drainage of t h e swamps, c o n s t r u c t i o n o f r o a d s , and t h i n g s o f t h a t c h a r a c t e r , s o t h a t everybody was g e t t i n g involved. Of course , h e was b o a s t i n g a l o t about mare nostrum, f o r t h e Medi terranean Sea. Then, o f course , they made m i s t a k e s . They went i n t o Libya and got involved t h e r e and t h e i s l a n d o f Corfu, and o t h e r problems f o r which t h e r e were mixed r e a c t i o n s , o f course .

Sharp: I wondered how your own a c t i v i t i e s i n t h e I t a l i a n c o m u n i t y changed i n t h i s e a r l y Depression per iod .

Zi rpo l i : No, I d i d n ' t change. I increased , i f anything, my r e l a t i o n s . A s I s a i d , from t h e po in t of view of t h e I t a l i a n s i t wasn ' t t h a t bad a s f a r a s t h e I t a l i a n community was concerned. I am no t say ing i t was good, of course . There were people ou t of work b u t m o s t of t h e I t a l i a n s were, a s I s a i d , p roper ty owners. They saved t h e i r money and w e d i d g e t some he lp through t h e I t a l i a n we l f a r e agency, b u t t h e need t h e r e f o r was n o t a s g r e a t a s i t was t o t h e remainder o f t h e community. My i n t e r e s t i n I t a l i a n a f f a i r s j u s t kep t i nc r ea s ing , i t d i d n ' t d iminish, and wi th t he advent of World War 11, I a l s o d i d some broadcas t ing t o I t a l y , propaganda-type, Voice of America.

Sharp: We'll have t o t a l k about t h a t .

Z i r p o l i : I don ' t remember a g r e a t d e a l about what I s a i d . [ laughs] I mean I t o l d them t h a t America and I t a l y had always been f r i e n d s , t h e I t a l i a n s were doing s o w e l l h e r e and i t was un fo r tuna t e t h a t w e should be enemies, Mussol ini was n o t good f o r I t a l y , and t h ings of t h a t cha rac t e r .

Sharp: What o t h e r no t e s d i d you make? It looks l i k e you have done q u i t e a b i t of w r i t i n g .

Z i rpo l i : [ r e f e r r i n g t o no t e s ] Of course , I s t a r t e d o u t w i th my grandparents , bu t w e ' l l l eave t h a t ou t . [pauses t o go through no t e s ] I ' v e gone through t h e 1932 and 1936 campaigns. Then I g e t t o t h e '48 campaign.

Sharp: Okay, maybe w e ' l l hold o f f on t h a t .

Z i rpo l i : Then t h e '48 campaign and a f t e r t h a t was my i n t e r e s t i n p o l i t i c s wi th Adlai Stevenson. Then, of course , t h e r e was [John F,] Kennedy, C l a i r Engle, and t h e [San Francisco] board of supe rv i so r s , 1958 t o '61, vo lun teers f o r b e t t e r government, my own marr iage i n 1936.

My wi fe [Giselda Campagnoli Z i r p o l i ] taught a t Gal i l eo High School, I m e t my wi f e when s h e en ro l l ed a t t h e Univers i ty of Ca l i fo rn i a , j u s t be fo re t h a t , and I took h e r up t o t h e campus t o e n r o l l he r . Then s h e graduated and taught a t Ga l i l eo High School. We were marr ied i n 1936 and I have two daughters by t h a t marr iage. They're marr ied and I have six grandchi ldren.*

Sharp: I can see t h e i r p i c t u r e s a l l over your chambers he re .

Z i rpo l i : Yes, t h i s is t h e youngest one now.

*The daughters1 names a r e Sandra de S a i n t Pha l l e and Jane Fe lder .

Zi rpo l i : The America I t a l y Society I have mentioned. The d inners w e had, t he people we've had, I p a r t i c i p a t e d i n t h e b ig d inner f o r [Guglielmo] Marconi when h.e came t o San Francisco and accompanied him t o t he d in ing room through. t h e k i t chen , krhen t h e dinner was over , 1 accompanied him o u t of t h e dinfng room through t h e k i t chen ,

There was t h e enemy a l i e n program, of course, I have t o g e t i n t o and t h e war, my a s soc i a t i on wi th THarold] 'Faulkner i n 1944.

Then I l e f t t h e Faulkner f i r m i n 1952 t o go on my own, There is t h e program f o r ind igent defendants i n t h e f e d e r a l cour t from '51 t o '56. There a r e a number of trials--"Baby Face" Nelson, Fleishhacker , George T. Davis, Frank Flynn, Nye and Nissen.

Sharp: I thought we would t a l k about those l a t e r .

Z i rpo l i : My a n t i t r u s t i n t e r e s t and a s soc i a t i on with Tom [C.] Clark. [pause]

Sharp: Le t ' s t a l k a b i t about your grandparents.

Z i rpo l i : My grandparents? There i s a p o r t r a i t of my grandfa ther on t h e e a s t wa l l t he re . That ' s a good pa in t ing . It was done by h i s cousin who was one of t h e best-known a r t i s t s i n southern I t a l y , i n Naples, a t t h e time. He operated a stagecoach l i n e i n southern I t a l y ou t of t h e town o r c i t y known a s Potenza. H i s name was Vincenzo. I n my f a t h e r ' s family, t h e f i r s t son was Vincenzo and t h e next f i r s t son was Alfonso, Vincenzo, and Alfonso, i n t h a t type of r o t a t i o n . H e died when my f a t h e r was n ine years of age and the family moved from Potenza t o Rome. My grandmother was a Morgano. That was a noble family of southern I t a l y . As I say , they a l l moved t o Rome when my grandfather died and my f a t h e r went t o school t h e r e u n t i l he was seventeen. Then he en te red t h e I t a l i a n cava l ry , and remained t h e r e f o r seven years u n t i l he came t o America t o marry my mother.

My mother was a Graziano and she was born near Lucca i n Tuscany. My f a t h e r was born i n 1880 and my mother was born i n 1878. Now, my mother 's family was a r e l a t i v e l y poor working family. She became a governess f o r t he ch i ld ren of an I t a l i a n consul who l a t e r became an I t a l i a n ambassador. So, while she had no r e a l s i g n i f i c a n t p r i o r formal educat ion, she used t o s i t wi th t h e t u t o r who taught a l l of t he se ch i ld ren . She acquired a very s u b s t a n t i a l educat ion h e r s e l f and t r ave l ed throughout many p a r t s of t h e world. She was i n Bei ru t dur ing t h e famous Chr i s t i an massacre and was i n Denver, Colorado i n t he 1880s, about 1889 o r approximately 1900; i t was i n t h a t per iod , I don ' t r e c a l l t h e exac t years .

The Graziano family included one who became t h e commanding general of t h e I t a l i a n fo rces i n World War I. Also s h e was d i s t a n t l y r e l a t e d t o IGiacomo] Puccini , so she m e t wi th Puccini when she was a ch i ld . Her family then moved t o Torrington lConnecticut] where they a l l went t o work i n t h e f a c t o r i e s there .

Z i r p o l i : My mother had a phenomenal memory. She l i v e d u n t i l s h e w a s n ine ty - two and t o show t h e v a l u e of t h e e d u c a t i o n s h e g o t , I remember a d o c t o r coming t o v i s i t h e r when s h e w a s eighty-two and s h e r e c i t e d a poem about d o c t o r s f n i ts e n t i r e t y from ITorquato] Tasso. So s h e could recl"te t o you frommemory from Tasso and from Dante [ A l i g h i e r i ] .

Sharp : She sounds l i k e a remarkable woman.

Z i r p o l i : Oh., her memory was j u s t f a n t a s t i c . We would visit people who had moved and bought a new home and s h e could t e l l them more abou t what was i n t h e l i v i n g room of t h e i r o l d home than they could!

Sharp: Did you make any n o t e s t h e r e abou t your b r o t h e r ?

Z i r p o l i : I ' l l t a l k abou t my b r o t h e r now. Now, my b r o t h e r went t o Flashington G r a m m a r wi th m e and h e a t t e n d e d Lowell [High School] and played b a s k e t b a l l . Fhen h e graduated, h e wasn ' t i n t e r e s t e d i n going t o c o l l e g e , s o h e went t o work immediately f o r t h e Bank o f I t a l y and remained w i t h th.e Bank of I t a l y u n t i l h i s r e t i r e m e n t . He u l t i m a t e l y became a v ice -pres iden t and a s i g n i f i c a n t o f f i c e r o f t h e bank. He became branch manager o u t i n t h e Park P r e s i d i o , branch rpanager a t Stonestown, and branch manager a t t h e Columbus branch and a l s o t h e Clay-Montgomery. He a l s o had some r e s p o n s i b i l i t y i n r e l a t i o n t o c o o r d i n a t i n g t h e work of a l l t h e branches o f Bank of America. A s I s a y , h e wasn' t i n t e r e s t e d i n going t o c o l l e g e . He d i d a t t e n d t h e American Banking I n s t i t u t e c l a s s e s , o f course , a f t e r h e go t i n t o t h e bank. H e was a good a t h l e t e . My b r o t h e r was a g r e a t b a s k e t b a l l p l a y e r , a s o c c e r p l a y e r , and a b a s e b a l l p l a y e r . He was very good a s a b a s e b a l l p l a y e r , a l though h e never t r i e d t o do any th ing profes- s i o n a l l y . H e used t o p l a y i n what they c a l l e d t h e w i n t e r l eague h e r e which was b a s e b a l l p layed o u t a t Golden Gate Park p r i m a r i l y on t h e p a r t of p r o f e s s i o n a l p l a y e r s dur ing t h e w i n t e r months.

Sharp: Who wanted t o keep i n shape?

Z i r p o l i : Yes, s o h e played w i t h t h e Bank of America team, t h e b a s k e t b a l l team and b a s e b a l l team, and played wi th t h e s e peop le d u r i n g t h a t p e r i o d . One o f t h e f e l l o w s h e played w i t h a l i t t l e i n l a t e r y e a r s was Joe DiMaggio, who became my neighbor i n 1937. I n t h e beginning of '37, I bought a l i t t l e home i n t h e E a r i n a and Joe [Joseph P. ] DiMaggio bought t h e home nex t door f o r h i s f a t h e r and mother. H i s mother was a ve ry a r i s t o c r a t i c woman i n appearance. H i s f a t h e r was j u s t a f i sherman. H e c o u l d n ' t r ead o r w r i t e , b u t h e could read t h e box s c o r e s . So h e would go t o Chestnut and F i l l m o r e every day and buy t h e paper t o read t h e box s c o r e s t o s e e how h i s s o n was doing.

DiMaggio was very n i c e t o t h e c h i l d r e n i n t h e neighborhood. He would p lay b a l l wi th them on Sunday, p l a y c a t c h wi th them.

Sharp: It must have been a p r e t t y b i g d e a l .

Z i r p o l i : It was a b i g d e a l f o r t h e k i d s of t h e neighborhood. Y e s , i t was indeed. I a t t ended h i s f i r s t wedding and t h e r e c e p t i o n , H i s second wedding I d i d n o t a t t e n d because t h a t was n o t t h e same formal type o f t h i n g a s t h e f i r s t one. But I always enjoyed him, Of course , h i s b r o t h e r s were a l l ve ry s u c c e s s f u l . Three of them made t h e b i g l e a g u e s .

Now, I d o n t t know what you want t o d i s c u s s w i t h me f u r t h e r t h i s a f t e r n o o n , whatever you have i n mind.

Sharp: Okay. l e t m e look over my n o t e s . I t h i n k we have j u s t about covered every th ing .

A. P. 's Proxy F i g h t : "Back. t o Good Times"

Sharp : I do remember, as a r e s u l t o f t h e winning t h e [Bank of America] proxy f i g h t , Giann in i then launched a campaign t h a t he c a l l e d "Back t o Good Times ." It was a campaign t o g a i n d e p o s i t o r s .

Z i r p o l i : What A.P. d i d was a s soon a s they won t h e proxy f i g h t , h e s e n t a t e legram back t o San Franc i sco , " t e a r o u t t h e p a r t i t i o n s . " It was A.P.'s philosophy t h a t t h e p r e s i d e n t o f t h e bank had t o be a c c e s s i b l e t o t h e p u b l i c , s o t h e p r e s i d e n t cou ld n o t have a p r i v a t e o f f i c e . The branch managers had t o have t h e i r o f f i c e r i g h t o u t t h e r e i n f r o n t where everyone could s e e them and do b u s i n e s s w i t h them. A.P., a s I s a i d , was a man who, i f h e had f a i t h i n you, h e would l o a n you money, and t h e b e s t proof o f i t was t h e h i s t o r y of t h e bank a f t e r t h e [I9061 f i r e and t h e t h i n g s t h a t A.P. d i d a f t e r t h e f i r e .

Of course , when A.P. came back, o u t went E l i s h a Walker and a l l o f h i s group, P e d r i n i and s o f o r t h . A.P. was l e t t i n g t h e people know t h a t t h e bank was t h e i r bank; i t was in tended t o b e t h e p e o p l e ' s bank. H i s philosophy was t h a t t h i s was a bank f o r t h e people , f o r t h e working man. This is no t t h e bank f o r t h e owner of t h e s t e e l m i l l o r t h e owner o f t h e r a i l r o a d . "We want t h e people t h a t work i n t h e s t e e l m i l l , t h a t work on t h e r a i l r o a d , t h a t work on t h e farms."

H i s branch banking theory was a v e r y good one and was very b e n e f i c i a l t o C a l i f o r n i a because h e was a b l e t o move funds from t h e s o u t h t o t h e n o r t h when they were needed i n t h e n o r t h , and from t h e n o r t h t o t h e sou th when they were needed there--depending upon t h e p e r i o d o f t h e y e a r and t h e a g r i c u l t u r a l needs, p r i m a r i l y , o f t h e s t a t e a t t h e t ime.

Ruminant Smbn Fie* Musk

Soturd-. . .7:15 p.a

KFI - K G 0 .BACK KO e O O D KIYSS*

The nation's dollars are rapidly getting back to work Con-

BETTER TiMEs* luer of prosperity, the life of industly, the power behind tho A w i n g depoair b u e u d #26WOpoQ--far Jlo Iaur we& +di.s 4-b - ,. payrolt It is the infallible remedy for unemployment . . . The wried by Jlo member ba& ef y.

Fedml -- goal of "Good Times9* can be reached only by dolIars that h e wren w n l r n ru la -#&I s t r m l w u f

U S a . u mow! . . Movc pur money by banking, sensibly spending or highwar and hridrc mn*tmnioa - war msmd is G l i f - r n i r 'IhL rill meate .." r m p l m m r r ~ ta investing it. Banked dollars create credit-credit finances I6 rsuntiu from Sirkilom to h D i t g a -c.rit.v.r. DI am.- ., .-- &.* business-business creates prosperity. . . California courage

=l...-l".r"rY - ~

YrurrDICL-

HELP MAKE PROSPFRITY and initiative are leading the nation back to good t imes!

This i l l u s t r a t i o n appeared i n Biography of a Bank, The Story of Bank of America, N.T. and S . A . , by Marquis James and Bessie Rowland James, New York: Harper and Brothers, 1954, p. 355.

Z i r p o l i : A.P. d i d n ' t b e l i e v e i n accumulating wea l th f o r p e r s o n a l use and h e d i d n ' t want t h e bonus o f $2.5 m i l l i o n t h a t B a n c i t a l y gave him, He turned t h a t o v e r t o t h e U n i v e r s i t y of C a l i f o r n i a . These were i n d i c a t i o n s o f t h e type of l i d i v i d u a l h e w a s . H e d i d n ' t b e l i e v e i n any l a v i s h n e s s because h e f e l t you could on ly r i d e i n one automo- b i l e , you could on ly sa i l on one y a c h t , w e n i f you wanted t o s a i l on a yach t . H e h a t e d t o make speeches . H e would appear a t t h e d i n n e r b u t you d i d n ' t c a l l on him t o make a speech.

Sharp: Did you c o n s i d e r go ing t o work f o r him i n s t e a d of going o u t on your own?

Z i r p o l i : No, I r e a l l y d i d n ' t except t h a t one t i m e i n 1931. A f e l l o w named A n g e l i l l o was then t h e head o f t h e F e d e r a l Land Bank.. H e was a n I t a l i a n and h i s term was e x p i r i n g , s o I thought , "Why d o n ' t I g e t t h i s job as head of t h e F e d e r a l Land.Bank?l1 Well, I d i d n ' t , s o who knows what my f u t u r e would have been.

I w i l l say t h i s , t o o , wi th A.P., l a t e r on we had t h e s e v a r i o u s campaigns f o r t h e governorship and t h e l i k e . There were t i m e s when people, l i k e t h e c o n t r o l l e r o f cur rency , and o u r S h e r i f f [Dan C . 1 Murphy were a l l c a n d i d a t e s , both cand ida tes f o r governor among o t h e r s . A.P. was ve ry f r i e n d l y t o bo th , s o h e c o u l d n ' t t a k e s i d e s . So h e c a l l e d m e on t h e phone and h e s a i d , "Look. I want you t o t a k e c a r e of t h e campaign f o r J. F. T. OIConnor," t h e c o n t o l l e r of currency. I s a i d , "Sure, you g i v e me a headquar te r s and I ' l l s e t up a campaign s t r u c t u r e f o r your f r i e n d , " and I d i d . But h e would c a l l on 'you once i n a w h i l e f o r something o f t h a t n a t u r e .

He would n o t s u p p o r t Roosevelt f o r a t h i r d term. H e d i d n ' t b e l i e v e t h a t t h e p r e s i d e n t should have a t h i r d term. He b e l i e v e d i n compulsory r e t i r e m e n t a t s i x t y - f i v e . That i s s t i l l t h e p r a c t i c e a t t h e Bank of America.

Sharp: Tha t ' s r e a l l y about a l l of t h e q u e s t i o n s t h a t I have. I thought t h a t nex t t ime, we would focus a ' l i t t l e b i t on your s h o r t pe r iod a s a s s i s t a n t DA f o r San Franc i sco and t h e n move i n t o t h e p e r i o d when you were a s s i s t a n t U.S. a t t o r n e y .

Z i r p o l i : A s s i s t a n t DA o f San Franc i sco , I have very l i t t l e t o r e l a t e , A s a m a t t e r o f f a c t , I was on ly t h e r e a y e a r from 1932 through '33 ( t h e e a r l y p a r t of ' 32) . I was down i n t h e bond and war ran t o f f i c e , which means t h a t I would r e c e i v e b a i l and i s s u e war ran t s o f a r r e s t , and I would o c c a s i o n a l l y appear i n t h e municipal c o u r t . The f i r s t case I t r i e d i n t h e municipal c o u r t o r prosecuted was a f e l l o w who was charged w i t h drunk d r i v i n g . He defended himself and h e g o t an a c q u i t t a l .

Zir - p o l i : There was a b i g t r i a l o f t h e p u b l i c de fender o f t h e c i t y and county o f San Franc i sco , Prank Egan, While I d i d n ' t p a r t i c i p a t e i n t h a t t r i a l , t h e j u r y was o u t f o r s e v e r a l days and everyone t b u g h t t h e j u r y would b e coming 2n on a Sunday t h a t I happened t o b e on d u t y , and t h a t was go ing t o b e m y b i g moment. 1 would appear i n c o u r t and r e c e i v e t h e v e r d i c t o f t h e j u r y , b u t they d i d n ' t come back t h a t day! [ l augh te r ]

Sharp: So you l o s t your b i g moment.

Z i r p o l i : I l o s t my b i g moment, b u t a s I s a y , t h a t j o b was a half-day j o b s o t o speak because I cou ld have my p r a c t i c e i n t h e a f t e r n o o n and t h e same was t r u e wi th t h e a s s i s t a n t U.S. a t t o r n e y when I was f i r s t appo in ted i n August. It was presumably a half-day job. It turned o u t t o b e more s o t h a t e v e n t u a l l y , by 1936, I had t o g i v e up my o f f i c e downtown because I was spending too much t ime i n t h e U.S. a t t o r n e y ' s o f f i c e and i t d i d n ' t pay me t o m a i n t a i n a n o f f i c e downtown. It was f a i r l y c o s t l y a l though I was s t i l l r e c e i v i n g good f e e s on t h e o u t s i d e f o r work.

I d i d r e n d e r some s e r v i c e s even a f t e r I gave up my downtown o f f i c e . I remember i n p a r t i c u l a r one i n s t a n c e i n which I helped purchase o r p a r t i c i p a t e i n t h e purchas ing o f a b i g winery wherein t h e buyers o f f e r e d t o g i v e m e a one- th i rd i n t e r e s t . I tu rned them down and s a i d I was j u s t i n t e r e s t e d i n my f e e . I made a t e r r i b l e mis take because we had a tremendous wine inven tory and w e s o l d t h e i n v e n t o r y and made enough money t o pay f o r t h e whole winery, s o I would have had a one- thi rd i n t e r e s t i n t h e Windsor winery wi thou t c o s t ! [ l a u g h t e r J

So t h e r e was no th ing p a r t i c u l a r l y e x c i t i n g d u r i n g [ D i s t r i c t At torney] ~ r a d y ' s regimes excep t on t h o s e occas ions when I would go o u t w i t h t h e homicide squad, and t a k e a dying s ta tement o r i n t e r v i e w someone i n connec t ion wi th a homicide o r a t tempted homicide, Those were harrowi'ng exper iences i n many r e s p e c t s . F i r s t o f a l l , t h e speed w i t h which they would t r a v e l i n t h e c a r would endanger my l i f e . we'd come up Market S t r e e t and i t was l i k e a Keystone comedy. You would s e e t h e s t r e e t c a r coming toward you and your c a r was going t o p a s s t h e s t r e e t c a r . I t u r n e d t o t h e d e t e c t i v e and t o l d him, "Look, I ' m n o t wor r ied ; I want t o b e a l i v e . I f t h e o t h e r f e l l o w i s dead b e f o r e I g e t t h e r e , i t ' s j u s t t o o bad." . [ l augh te r ]

But a s I s a y , t h o s e were t h e b a s i c exper iences . I took a number o f s t a t e m e n t s .

Sharp: We' l l s t a r t then wi th your peri.od a s a s s i s t a n t U.S. a t t o r n e y . Maggie t o l d m e t h a t you made a t a p e o f some in format ion .

r p o l i : On one a s p e c t of i t , s o s h e w i l l g i y e you t h e t ape . I have been asked t o g i v e a t a l k on A l c a t r a z I s l a n d because I was i n charge o f habeas corpus , s o I g o t t o know t h e i s l a n d and some of t h e people f a i r l y we l l .*

Sharp : Great , t h a t ' s f i n e .

Z i r p o l i : I d o n ' t know wheth.er t h i s is going t o b e i n t e r e s t i n g o r n o t .

Sharp : It i s s o f a r . I t h i n k w e a r e g e t t i n g a good s t a r t anyway, b u t you have a l o t o f m a t e r i a l t o cover .

Z i r p o l i : - I have some more t o cover , yes .

Sharp: I r e a l l y l i k e your making n o t e s . It h e l p s you t o begin t o r e a l l y t h i n k abou t some o f t h e t h i n g s you were involved i n .

Z i r p o l i : I have t h e f i l e s f o r "Baby Face" Nelson [ L e s t e r M. G i l l i s ] .

Sharp: When w e g e t t o t h a t , I ' d r e a l l y l i k e t o s e e those .

Z i r p o l i : I have some of them h e r e and I have some a t home. I was going t o w r i t e t h a t up .one day, w r i t e t h e s t o r y . I was going t o w r i t e a book e n t i t l e d To Harbor and Conceal, b u t i t ' s more t h e s t o r y of Fa t so [Joseph Raymond] Negri , t h e messenger boy, than i t i s , i n a s e n s e , of " ~ a b y Face," f o r h e had c o n t a c t s w i t h [John] D i l l i n g e r and everybody.

Sharp: What y e a r was t h e "Baby Face" Nelson t r i a l ?

Z i r p o l i : The t r i a l was i n March of '35. H e was dead, o f course , by t h i s time.

1) /I

The I n v e s t i g a t i o n and Impeachment o f Judge Harold Louderback

Sharp: I have brought some q u e s t i o n s about "Baby Face" Nelson.

Z i r p o l i : A l l r i g h t , w e ' l l s e e i f I can answer them.

*Judge Z i r p o l i spoke about t h e s e exper iences on 6 October 1982 t o members of t h e His tor ical Soc ie ty o f t h e U.S. D i s t r i c t Court f o r t h e Northern D i s t r i c t o f C a l i f o r n i a . A copy of t h e s e remarks h a s been depos i t ed i n The Bancrof t L ib ra ry .

Sharp: I am s u r e you can.

Z i rpo l i : On "Baby Face" Nelson, t h e r e a r e two methods of t e l l i n g t h a t s t o r y . One of them i s t o pu t Negri on t h e s tand and l e t him t e l l i t and t h e o t h e r is f o r m e t o j u s t n a r r a t e i t . But anyway, w e ' l l go ahead.

Sharp: Let ' s s t a r t f i r s t w i th t h e impeachment of Judge IHarold] Louderback i f t h a t ' s a l l r i g h t wi th you.*

Z i rpo l i : Now, on t h e impeachment of Judge Louderback, I d i d no t p l ay any s i g n i f i c a n t r o l e .

Sharp: I had a few ques t ions down here . I wonder i f you could j u s t s e t i t up f o r m e and t e l l m e f i r s t of a l l what your i n i t i a l acquaintance w i th t h e judge was.

Z i rpo l i : My i n i t i a l acquaintance w i th t h e judge a rose when h e became a d i s t r i c t judge, no t when h e was on t h e supe r io r l c o u r t ] bench l i n San Francisco] . When he became a d i s t r i c t [ cou r t ] judge, I f i r s t met him, i n a sense , a f t e r t h e famous c rash of 1929 when a number of t h e brokerage houses were going i n t o rece iversh ip . I had f i l e d a s u i t t o recover some money which I won and thus benef i ted t h e e s t a t e of one of t h e bank- r u p t brokerage houses. I got them a considerable amount of money, about $50,000, and I pe t i t i oned f o r $500 f o r a t t o r n e y ' s f e e s . Judge Louderback denied my p e t i t i o n .

I was no t aware t h a t t h e r e were any r e a l problems a r i s i n g u n t i l I received a telegram from t h e I t a l i a n s i n t h e redwood empire country, i n Eureka and i ts environs, i n which they asked m e t o accompany F i o r e l l o La Guardia t o Eureka f o r a recept ion by t h e I t a l i a n community. I then v i s i t e d La Guardia a t t h e Palace Hotel [ i n San Francisco] and he couldn ' t make i t , s o w e never d id make t h e t r i p .

But by t h i s time I knew t h a t Congress was looking i n t o t h e a c t i v i t i e s of Judge Louderback a s i t r e l a t e d t o t h e appointment of r ece ive r s i n t he se bankruptcy e s t a t e s . He had f a v o r i t e persons whom h e would appoint . Therefore, they would be g e t t i n g t h e b e n e f i t of t h e compensation and f e e s f o r se rv ing a s r ece ive r . Congressman La Guardia d i d n ' t l i k e t h i s and he was behind t h e - i n v e s t i g a t i o n of Judge Louderback. Judge Louderback was impeached by t h e House of Represen- t a t i v e s f o r h i s conduct i n t h i s regard and they subsequently had a

*Joseph J. Franaszek is c u r r e n t l y research ing a monograph on Judge Louderback's l i f e . An excerpt i s included i n The H i s t o r i c a l Reporter , Vol. 2, No. 2 (Fa l l 1982), p. 2, a s , "'It Was Decided t h a t t h e Cat Should Stay and t h e Judge Should Go': The Impeachment of Judge Harold Louderback. I'

Z i r p o l i : t r i a l i n t h e Sena te i n which they f a i l e d t o r e c e i v e t h e necessa ry two-thirds v o t e by o n e v o t e . As a consequence h e r e t u r n e d t o t h e bench..

I might s a y t h a t anyone w i t h a p r i o r h i s t o r y of t h a t c h a r a c t e r , where more t h a n a m a j o r i t y v o t e d f o r removal, would r e s i g n , o r some of them would r e s i g n b e f o r e t h e c a s e ever go t t o t h e impeachment s t a g e (even though t h e number i s r e l a t i v e l y s m a l l i n t h e h i s t o r y o f t h e coun t ry ) .

I had no s i g n i f i c a n t r o l e i n t h e s e n s e o f o f f e r i n g in format ion and be ing o f any p a r t i c u l a r h e l p t o anyone i n connect ion t h e r e w i t h , b u t h e came back t o s e r v e on t h e bench and I t h i n k h e s e r v e d w e l l .

H e was a person who adhered s t r i c t l y t o f o r m a l i t y and c o u r t procedure . I remember on one occas ion we had a s m a l l c a s e i n v o l v i n g t h e r a i l r o a d s and f a i l u r e t o comply w i t h t h e s a f e t y requirements . These were misdemeanor charges t h a t t h e government would f i l e a g a i n s t t h e r a i l r o a d . I rece ived a c a s e o f t h a t c h a r a c t e r from t h e a p p r o p r i a t e department o f t h e government and f i l e d an in format ion a g a i n s t t h e Southern P a c i f i c (I have f o r g o t t e n t h e nunber o f coun ts , b u t a s u b s t a n t i a l number o f c o u n t s ) , and t h e a t t o r n e y genera l sugges ted t h a t I permi t them t o p lead n o l o contendere and recommend a f i n e o f $300 on each count .

I made t h e mis take o f going i n t o Judge Louderback's chambers and suggested t h a t t h i s was t h e d i s p o s i t i o n t h a t we would l i k e . He threw m e o u t o f t h e chambers, and p r o p e r l y s o a l l cons idered , s i n c e t h i s was t h e wrong approach. But I went i n t o c o u r t and h e accep ted t h e no lo contendere and h e proceeded t o f i n e them $300 on each count! I l a u g h s ] H e wanted, as h e should have, t h a t t h i s be t h e a c t i o n o f t h e c o u r t and n o t t h e a c t i o n o f t h e a t t o r n e y g e n e r a l o r someone r e p r e s e n t i n g t h e a t t o r n e y g e n e r a l .

I t r i e d a number of c a s e s i n h i s courtroom t h e r e a f t e r b u t , a s I s a y , h e was a s t i c k l e r f o r f o r m a l i t y . He used t o a d d r e s s everybody a s M r . Jones o r whatever t h e name o f h i s c l e r k was by h i s las t name and always M r . o r M r s . o r Miss. There w a s no in formal approach t o any th ing on h i s p a r t .

Sharp: Let me back you up a b i t and a s k you a few o t h e r q u e s t i o n s . With t h e a c t u a l impeachment, t h e charges made by Congressman La Guardia were t h a t Louderback had used h i s powers a s a judge t o extend f a v o r s t o h i s f r i e n d s by a p p o i n t i n g them r e c e i v e r s . I wondered how you heard about t h e s e charges , i f i t was p r e t t y common knowledge--

Z i r p o l i : I have no c l e a r r e c o l l e c t i o n , bu t i t was i n t h e p r e s s , p r i m a r i l y from t h e p r e s s . Then I knew t h a t t h e r e w a s some t a l k about who would r e p r e s e n t Judge Louderback. A t one t ime t h e r e w a s some t a l k about Harold Faulkner r e p r e s e n t i n g him. He e v e n t u a l l y ended up w i t h James Hanl ey .

Sharp: Was t h e r e a s p e c i a l r o l e i n t h e impeachment f o r U,S. Attorney George Hatf i e l d ?

Z i r p o l i : No, 1 don't r e c a l l any s p e c i a l r o l e . H a t f i e l d , who knew him persona l ly , I assume was questioned a s was one of t he a s s i s t a n t s , A l IAlber t C.1 Wollenberg ISr . ]* But I don ' t know anything about t h e d e t a i l s of t h a t . Tn o t h e r words, they d id approach A l \Tollenberg.

Sharp: It was t h e La Guardia committee t h a t approached Wollenberg?

Z i rpo l i : Yes, t h e La Guardia committee o r an i n v e s t i g a t o r f o r t h e committee.

Sharp: Apparently, Judge Louderback f e l t t h a t t h e charges were un t rue ,

Z i rpo l i : It i s n ' t neces sa r i l y t h a t he f e l t t h a t t h e charges were untrue; he f e l t t h a t they were no t j u s t i f i e d . There was no b e n e f i t t o him f o r i t . He was appoin t ing t h e s e people because h e f e l t t h a t they were competent and would do a good job. He d idn ' t know t h a t t h e r e had t o be a s p e c i a l r u l e a s t o who you might appoint and t h a t you shouldn ' t appoint a f r i e n d .

I would even ques t ion t h a t today, i f t h e person you appoint is competent. For i n s t ance , t h e r e a r e occasions when I w i l l appoint a doctor . I had a medical eva lua t ion t o b e made with r e l a t i o n t o a very wealthy ind iv idua l i n San Francisco. I c a l l e d a f r i e n d of mine ou t a t M t . Zion [Hospi ta l ] who I f e l t was one of t h e l ead ing h e a r t s p e c i a l i s t s i n America who wrote t h e book on A and B types. He gave m e an opinion. I thought t h a t t h i s f e l l ow was f e ign ing and t h e doctor s a i d , "No, he ' s no t f e ign ing and not only t h a t , but h e ' s crazy f o r doing some of t h e t h ings t h a t h e does. He i s f u r t h e r imper i l ing h i s l i f e . "

So what I thought was going t o be some form of contempt o rde r , I was a l l wrong. So I see nothing wrong persona l ly with t h a t a s long a s t h e o b j e c t i v e i s an honest and honorable one.

Sharp: But apparen t ly he f e l t that--

Z i rpo l i : He thought i t was p o l i t i c a l .

Sharp: H e d id ; he f e l t apparen t ly t h a t t h e r e w e r e some f o r c e s , r e a l fo r ce s , w i th in t h e San Francisco l e g a l community t h a t wanted him ou t .

kwollenberg was an a s s i s t a n t U.S. a t t o rney , 1928-1934, Readers a r e d i r e c t e d t o h i s own o r a l h i s t o r y , To Do t h e Job Well: A L i f e i n Leg i s l a t i ve , J u d i c i a l and Community Serv ice , Regional Oral His tory Off ice , The Bancroft L ibrary , Univers i ty of Ca l i fo rn i a , Berkeley, 1981.

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zirpo l i :

Sharp.:

Z i rpo l i :

Sharp :

Heller, Ehrman, White and PIC A u l i f f e was th.e I l a u ] f i r m t h a t h e f e l t was o u t t o g e t him.

What do you thi'nk abou t t h a t ?

I don ' t know. I have no way of o f f e r i n g any o p i n i o n on t h a t . Judge LouderBack was a man wi thou t f r i e n d s .

How would you d e s c r i b e t h e d i s c o n t e n t t h a t surrounded Judge Louder- back then?

The d i s c o n t e n t is hard f o r m e t o e v a l u a t e a f t e r t h e passage of a l l t h i s t i m e . I d o n ' t know how much d i s c o n t e n t t h e r e was because of t h e appointment o f t h e r e c e i v e r s h i p s . I t h i n k t h e r e was some, b u t I t h i n k most o f t h e d i s c o n t e n t w a s t h e f a c t t h a t h e w a s a s t r i c t d i s c i p l i n a r i a n i n t h e courtroom. You c o u l d n ' t g e t n e a r t h e w i t n e s s box o r i f you wanted t o o f f e r a n e x h i b i t , you had t o p a s s i t t o h i s c r i e r o r t h e c l e r k who would then p a s s i t t o t h e w i t n e s s o r t h e j u r y . Then when they f i n i s h e d , t h e c r i e r would have t o p i c k i t up and b r i n g i t back. I f you d i d any th ing o f t h a t n a t u r e , g o t t o o c l o s e t o t h e j u r y box, h e would c a l l you o n i t i n t h e courtroom, and i n a s e n s e bawl you o u t .

He was t h e n s i g n i f i c a n t l y d i f f e r e n t i n terms o f h i s approach t h a n , s a y , Judge [Adolphus F. ] S t . Sure?

He was s i g n i f i c a n t l y d i f f e r e n t than Judge S t . Sure i n t h a t Judge S t . Sure wasn ' t as s t r i c t i n t h e a p p l i c a t i o n o f t h e procedure o r 'decorum.

Judge S t . Sure was p r e t t y tough on sen tenc ing , however, and they used t o c a l l him "Sure Shot" Sure because of t h e n a t u r e of s e n t e n c e s . The s t o r y they l i k e d t o t e l l i s abou t t h e f e l l o w who borrowed some s t u f f from t h e nava l ya rd where h e was working t o work on h i s home and h i s n e i g h b o r ' s home. They charged him wi th t h e f t o f government p r o p e r t y . Judge S t . Sure asked f o r a p r o b a t i o n r e p o r t and h e go t one. The p r o b a t i o n r e p o r t showed t h a t he was a good neighbor , and h e was v e r y n i c e and k ind t o t h e c h i l d r e n , and worked w i t h t h e Boy Scouts , d i d e v e r y t h i n g h e cou ld f o r t h e i r b e n e f i t , and t h e judge commented, "This i s a n e x c e l l e n t r e p o r t . " Then h e turned t o t h e United S t a t e s a t t o r n e y and s a i d , "What is t h e p e n a l t y p r e s c r i b e d by law?" The U.S. a t t o r n e y s a i d , "Five y e a r s i n j a i l and /or $5000 f i n e . 'I

Judge S t . Sure would s a y , "Commit t h e defendant t o t h e custody of t h e a t t o r n e y g e n e r a l f o r f i v e y e a r s . That is a l l , C a l l t h e n e x t case . " So h e go t t h e t i t l e o f " sure Shot.' '

It sounds worthy.

H e was a f a i r t r i a l judge and h e was a good t r i a l judge.

I w i l l lie a s k i n g you more about him l a t e r .

Sharp: Hatton Sumners was chairman of t h e House Jud ic i a ry Committee and La Guardia then was a member of t h e committee, It was La Guardia who was i n charge of t h e inves t iga t ion . The committee came t o San Francisco a t some poin t I n September of 1932. Before t h a t , t he re was a committee of t h e San Francisco Bar Associat ion t h a t had a l ready done f t s own l"nvestl'gatIon sometime between May and Ju ly of t h a t y e a r , '32. Randolph Whiting was t h e pres ident of t h e San Francisco Bar; Adolphus Bianchi was chairman of t h e San Francisco Bar's committee i nves t iga t ion of Louderback. I wondered i f you had any connection, any r e l a t i o n s h i p , with e i t h e r t h e San Francisco committee, t he bar committee, o r with t h e La Guardia committee?

Zi rpol i : No, I d i d not , but Whiting was a member of t h e f i rm of He l l e r , Ehrman, White and Mc Aul i f fe . So t h a t may 6.e one of t h e reasons t h a t Judge Louderback f e l t t h a t t h e f i rm was aga ins t him.

Sharp: The Senate t r i a l then was i n e a r l y 1933. I wondered i f any members from t h e U.S. a t t o rney ' s o f f i c e went back f o r t he t r i a l ?

Zi rpol i : Not t h a t I know o f .

Sharp: How did you hear about what was going on, j u s t through t h e newspapers?

Z i rpo l i : Through t h e papers. I mean t h a t was a subjec t of d a i l y news, so t o speak, and b a s i c a l l y i t was through t h e papers. A s I s a i d , I had had j u s t t h e one experience with Judge Louderback and I d i d n ' t g ive any r e a l importance o r s ign i f i cance because I d idn ' t come i n t o the U.S. a t t o rney ' s o f f i c e u n t i l August of '33.

Sharp: And you hadn' t had any contact wi th them i n t h e San Francisco d i s t r i c t a t t o r n e y ' s o f f i c e f o r any reason?

Zi rpol i : No, I d id not.

Sharp: I wondered i f you thought t h a t t h e impeachment c rea ted some s o r t of shadow f o r t h e d i s t r i c t cour t?

Zi rpol i : It unquestionably did, bu t what eva lua t ion I made on i t then I c a n ' t r e c a l l . There i s a young man who is wr i t i ng a s t o r y on Judge Louder- back. *

Sharp : Yes, I talked with him and he i s going i n t o q u i t e a b i t of d e t a i l . There seems t o be a p r e t t y f u l l record of a l l of t h e hpeachment. So h e i s using i t and hopes t o w r i t e j u s t a monograph on the whole impeachment.

*Judge Z i r p o l i he re r e f e r s t o Joseph 'Franaszek., footnoted above,

Sharp: What happened w i t h i n t h e c o u r t once Judge Louderback came back? Did people s o r t of avo id him i n t h e hallway?

Z i r p o l i : No, r m e a n no th ing liappened. F i r s t o f a l l , h e was n w e r f r i e n d l y anyway, s o i t wasn ' t a q u e s t i o n o f avo id ing him. He always avoided everyone and s o when h e came back, h e behaved v e r y much i n a s e n s e t h e way h e d i d b e f o r e , possl 'bly a l i t t l e more a l o o f . Of course , h e had some problems a r i s i n g o u t o f h i s mar r iage a s w e l l . I d o n ' t know t o o much about those problems. I d o n ' t know whether h e was l i v i n g up a t t h e Pairmont Hotel on No6 F i l l a t t h e t ime.

Sharp: Are t h e r e any o t h e r n o t e s abou t t h e impeachment t h a t you wanted t o make? I d i d n ' t know i f you had done any more w r i t i n g on i t .

Z i r p o l i : No, I am n o t going t o do much on t h e impeachment. It i s n ' t a n a r r a - tive t h a t 1 have enough knowledge of t o make whatever I s a y worth- whi le . I t would t a k e a tremendous amount of r e s e a r c h o r comment from someone, i f t h e r e i s anyone s t i l l l i v i n g , who was a n a c t i v e p a r t i c i p a n t . One person t h a t one might t a l k t o might b e Harold Faulkner on h i s r o l e .

Sharp: Did Judge Wollenberg ever t e l l you very much about h i s speak ing w i t h t h e committee?

Z i r p o l i : A l l I remember i s t h a t h e d i d t e l l me t h a t they came t o s e e him, b u t I have no r e c o l l e c t i o n a s t o what h e s a i d t o them. [pause!

I11 YEARS AS ASSISTANT UNITED STATES ATTORNEY, 1933-1944

Cops and Robbers : The "Baby Face" ~ e l s o n / " F a t s o I' Negri Cases

P r e l i m i n a r i e s

Sharp: I ' d l i k e t o move on then t o t h e "Baby Face" Nelson m a t e r i a l . I have some q u e s t i o n s from t h e tap-e t h a t you made and some q u e s t i o n s from t h e e l e v e n f i l e s on U.S. v . Negri t h a t I saw, and t h e c a s e o f John Pau l Chase.*

Z i r p o l i : I had no th ing t o do w i t h John Pau l Chase i n any r e a l s e n s e .

Sharp: R igh t , I d i d n ' t t h i n k t h a t y o u d i d .

On t h e t a p e , you mentioned t h a t as a s s i s t a n t U.S. a t t o r n e y you had r e s p o n s i b i l i t y f o r a l l o f t h e f l i g h t and i n t e r s t a t e commerce c a s e s .

Z i r p o l i : Yes.

Sharp: Was t h a t a l a r g e number of c a s e s ?

Z i r p o l i : No, b u t t h e r e were a number o f them. I remember t h e r e w a s a P o i n t Lobos [ s t eamer ] murder c a s e which r o s e o u t o f an ind ic tment f n Alameda County and we t h e n undertook t h a t a s a n unlawful f l i g h t case.**

*Judge Z i r p o l i made h i s own t a p e cover ing some of t h e t o p i c s d i scussed i n t h i s and l a t e r i n t e r v i e w s . It h a s been depos i t ed wi th h i s i n t e r - views i n The Bancrof t L ib ra ry . The judge allowed t h e ~ i n t e r v i e w e r t o review h i s o r i g i n a l f i l e s o f c o u r t r e c o r d s from t h e Negri t r i a l ,

**This i s a l s o known as t h e King-Ramsay-Conner c a s e . See a volume of o r a l h i s t o r y abou t i t , The Shipboard Murder Case: Labor, Radical ism, and E a r l Warren, 1936-1941, Regional Oral H i s t o r y O f f i c e , The Bancrof t L i b r a r y , U n i v e r s i t y of C a l i f o r n i a , 1976, a s p a r t o f t h e E a r l Warren Era Ora l H i s t o r y P r o j e c t .

Z i r p o l i : I was then i n c o n t a c t w i t h . E a r 1 Warren,who was d i s t r i c t a t t o r n e y of Alameda County at t h e t2me; I mean I u s e t h a t as an i l l u s t r a t i o n .

You had some s u E s t a n t i a 1 number o f what we c a l l e d w h i t e slave c a s e s a t t h a t t i m e , which-was- t h e t r a n s p o r t a t i o n of a female i n i n t e r s t a t e commerce f o r purposes o f p r o s t i t u t i o n . There were q u i t e a number' of t l iose,

I n f a c t , I t r i e d a v e r y s i g n i f i c a n t case . It had t o do w i t h t h e i m p o r t a t i o n of t h r e e women from Hong Kong t o b e used f o r purposes o f p r o s t i t u t i o n i n San Franc i sco . It was a very famous c a s e [U.S. - v. Wong See Duck, e t a l . ] as f a r as Chinatown was concerned and i t was r e p o r t e d i n t h e Chinese p r e s s each day and w i t h a l l o f t h e d e t a i l s . There were two trials. The j u r y d i s a g r e e d on t h e f i r s t t r i a l . The second t r i a l , we had Judge Walter C. Lindley. He was from Danvi l l e , I l l i n o i s . W e r ece ived a c o n v i c t i o n i n t h e second t r i a l because w e had found ano ther o f t h e t h r e e women who had been imported from Hong Kong and s h e was a b l e t o c o r r o b o r a t e t h e on ly w i t n e s s I had, who was t h e g i r l who was brought h e r e from China and then r a n away t o Donaldina Cameron's home on Sacramento S t r e e t , i n Chinatown.* I d o n ' t know whether you want any d e t a i l s o f t h a t case . I f you want them, I can g i v e them t o you.

Sharp: What I would l i k e f o r you t o do i s e s s e n t i a l l y set us up f o r t a l k i n g about t h e Negri c a s e s and g i v e m e s o r t o f a g e n e r a l i d e a o f t h e o t h e r k i n d s o f c a s e s t h a t you were involved i n . A l i t t l e more d e t a i l , I t h i n k , on t h i s would be good,

Z i r p o l i : 1'11 g i v e i t t o you now. What happened was t h a t t h e immigration a t t o r n e y , Arthur Phelan, came t o see m e and s a i d t h a t t h i s woman had f l e d t o t h e miss ion and s h e had a s t o r y t o t e l l a s t o how s h e was brought t o t h i s country . So t h e s t o r y a s i t unve i led was t h a t a Chinese who made numerous t r i p s t o China, every t ime h e r e t u r n e d he s a i d h i s w i f e w a s pregnant and was t o have a c h i l d . When h e go t o l d e r , h e s o l d t h e r i g h t t o b r i n g one o r more o f t h e s e c h i l d r e n of h i s t o t h e United S t a t e s , s o t h a t h e b u i l t a form of i n s u r a n c e f o r h imself i n h i s o l d age. So i f you pa id him, l e t ' s s a y , $1000, you could b r i n g someone over .

A s y n d i c a t e i n San Franc i sco headed by Wong See Duck, who had a b i g s t o r e i n Chinatown, would send a l i e u t e n a n t , a young man, t o Hong Kong who pa id $250 Hong Kong money t o t h e family of t h e young Chinese l a d y and they would then g i v e h e r a family h i s t o r y wi th . photographs s a y i n g t h a t you were born i n t h i s v i l l a g e , you l i v e d i n

*Donaldina Cameron, 1869-1968, grew up i n San Franc i sco , and opened a P r e s b y t e r i a n miss ion i n Chinatown t o a i d female Chinese p r o s t i t u t e s .

Z i r p o l i : t h i s house, you b d t o go s o f a r t o f i n d t h e f o u n t a i n f o r wa te r , t h e r e were s o many rooms i n t h e house, t h e people who l i v e d i n t h e house were t h e fol lowing, and t h i s i s a photograph of your u n c l e whom you w i l l r ecognize . She would be g iven t h e l i f e s t o r y o f a fami ly and h e r r o l e i n t h e f a m i l y s o t h a t when s h e would a r r i v e i n San Franc i sco , s h e would then f d e n t i f y h e r u n c l e immediately and s a y , "That's my u n c l e . " The $ m i g r a t i o n a u t h o r i t i e s would b e s a t i s f i e d t h a t h e r s t o r y was t r u e , t h a t s h e r e a l l y was t h e daughte r o f a Chinese. She would b e shown photographs from h e r f a t h e r as w e l l and s h e would b e admit ted t o t h e Uni ted S t a t e s .

One g i r l they bought i n Hong Kong and brought t o San F r a n c i s c o had r e l a t i o n s w i t h a young man (Wong See Duckts l i e u t e n a n t ) on t h e b o a t and s h e became pregnant . Of c o u r s e , t h i s was n o t r e a d i l y noted when s h e a r r i v e d . \ h e n s h e a r r i v e d , s h e was p u t up f o r s a l e and th.e s y n d i c a t e bought h e r , b u t t h e y bought h e r on c o n d i t i o n t h a t t h e payments would b e i n t h r e e equa l monthly i n s t a l l m e n t s t o i n s u r e undamaged goods, s o t o speak.

A s I s a y , s h e a l s o had t h e r i g h t t o buy o u t . That i s t o s a y t h a t a s s h e earned money, a l l o f t h e s u r p l u s s h e could accumulate, s h e could u s e t o buy a n i n t e r e s t i n h e r s e l f . I have f o r g o t t e n what t h e e x a c t f i g u r e was, b u t let 's s a y s h e had a r e s p o n s i b i l i t y of e a r n i n g $20 o r $30 o r $50 a day. Everything s h e earned over and above t h a t s h e k e p t and e v e n t u a l l y used i t t o buy h e r s e l f o u t . One o f t h e g i r l s t h a t I e v e n t u a l l y had a s a w i t n e s s i s one who had bought h e r s e l f o u t .

Phelan p resen ted t h e s e f a c t s t o m e and I s a i d , "I 'll i n t e r v i e w I

h e r ." I in te rv iewed h e r and I was s a t i s f i e d t h a t s h e was t e l l i n g t h e t r u t h . I s a i d , "I t h i n k t h e j u r y w i l l b e l i e v e her . " W e p resen ted i t t o t h e grand j u r y , t h e grand j u r y accep ted i t , and t h e ind ic tment was r e t u r n e d . A t t h e f i r s t t r i a l , t h e j u r y was a hung jury-- i t was h e r word, a p r o s t i t u t e and s o f o r t h .

I n t h e second t r i a l , we found t h e o t h e r young l a d y , t h e one who had bought h e r s e l f o u t . She came and t o l d h e r s t o r y and on a second t r i a l w e go t a c o n v i c t i o n .

This was a famous c a s e f o r Chinatown because o f t h e n a t u r e of t h e peop le involved. I mean a man who owned t h i s b i g hardware s t o r e i n Chinatown was t h e prime i n v e s t o r i n t h e s y n d i c a t e t h a t bought h e r . He and two o t h e r l a d i e s bought t h i s g i r l and they were a l l conv ic ted . .So i t was a n i n t e r e s t i n g c a s e , a s I s a y , because t h e Chinese papers c a r r i e d a t r a n s c r i p t o f t h e t r i a l day by day.

Sharp: Was t h i s f a i r l y t y p i c a l of some o f t h e w h i t e s l a v e c a s e s ?

Z i r p o l i : There were q u i t e a number o f w h i t e s l a v e c a s e s i n t h o s e days. One r i n g was t r a n s p o r t i n g g i r l s from t h e Uni ted S t a t e s t o Hawaii and we prosecuted t h a t gang s u c c e s s f u l l y .

Also, d u r i n g t h i s same p e r i o d , t h e r e was a famous San Franc i sco p o l i c e g r a f t where t h e police were t a k i n g money from madams i n t h e houses o f p r o s t i t u t i o n i n t h e San Francisco area. That was one of t h e primary s o u r c e s o f g r a f t money. The FBI go t i n t o t h a t and I prosecu ted one o f t h o s e cases--in f a c t , t h e o n l y c a s e t h a t e v e r went t o t r i a l . None o f t h e s t a t e c a s e s went t o t r i a l , W e had a s u c c e s s f u l p r o s e c u t i o n t h e r e .

Sharp: Do you remember t h e name of t h a t c a s e ?

Z i r p o l i : I w i l l have t o t h i n k about i t . I know t h a t J a k e E h r l i c h was i n t h e case . J a k e E h r l i c h i s t h e lawyer who wro te t h e book, Never Plead G u i l t y . However, h e pleaded h i s c l i e n t g u i l t y i n t h a t c a s e . This was an important c a s e because i t a l s o involved t h e McDonough b r o t h e r s who were t h e p r i n c i p a l b a i l bondsmen o f San Franc i sco a t t h a t t i m e . They opera ted t h e i r b a i l bondsmen o f f i c e l i k e you would a bank. They had a t e l l e r ' s window and every th ing . They were v e r y weal thy. They had i n v e s t e d a l o t o f money i n t h e o l d Bank o f I t a l y and made a l o t o f money. They were u s i n g t h e i r money t o p u t up b a i l f o r people accused of crime i n San Franc i sco and they were t h e p r i n c i p a l b a i l b rokers . I f you jumped b a i l , they 'd send a man t o England o r wherever you were and b r i n g you back, s o t h a t they wouldn' t f o r f e i t b a i l . Sometimes t h e b a i l was p r e t t y high and, i n f a c t , t h i s d i d occur i n one i n s t a n c e which was $40,000 b a i l . They went t o England and brought back t h e defendant and t h e c o u r t r e m i t t e d t h e b a i l .

Sharp: F o r t y thousand d o l l a r s sounds l i k e a n e x t r a o r d i n a r y sum.

Z i r p o l i : A t t h a t t ime, i t was. These were some of t h e a c t i v i t i e s t h a t were t r a n s p i r i n g . There were o t h e r s . I would s a y , I must have p rosecu ted , a l l t o l d , maybe t e n o r f i f t e e n w h i t e s l a v e c a s e s i n t h a t pe r iod . I n l a t e r y e a r s , t h e government q u i t p r o s e c u t i n g those c a s e s ,

Sharp: They were too numerous, o r t h e p r o s e c u t i o n c o u l d n ' t g e t t h e evidence?

Z i r p o l i : I guess they would now, b u t they won't pay much a t t e n t i o n t o t h a t now. People move about r e g a r d l e s s o f t h e i r r e l a t i o n s h i p today, they d o n ' t f e e l t h e same moral o b l i g a t i o n t o p r o s e c u t e t h a t they d i d then .

Unravel ing t h e Ta le

Sharp: L e t ' s move on t o t a l k abou t t h e "Baby Face" Nelson m a t e r i a l .

Z i r p o l i : A l l r i g h t . I n 1933 when I came i n , t h e r e were v e r y few FBI a g e n t s , s o you knew them p e r s o n a l l y . There was a q u e s t i o n o f l o c a t i n g "Baby Face" Nelson. That q u e s t i o n a r o s e , So I t a l k e d t o t h e FBI and heard abou t IJoseph. Raymond, "Fatsot'] Negr i and I t h e n decided I would t r y t o h e l p them, I went undercover.

Sharp: L e t me j u s t s t o p you t h e r e . You s a i d went undercover ' as Tony Damico, Was t h a t something t h a t you vo lun tee red t o do o r was t h a t something t h a t was ass igned?

Z i r p o l i : No, t h a t wasn ' t a s s igned t o me. I was under no o b l i g a t i o n t o do any th ing o f t h a t c h a r a c t e r . They were t e l l i n g me about t h e i r problems. I i n d i c a t e d t h a t because of my knowledge o f I t a l i a n I might be a b l e t o t e lephone h i s mother and maybe a s a r e s u l t of t h a t , make a c o n t a c t w i t h Negri . So I took t h a t name, and we p u t a t a p on t h e phone o f h i s mother. It wasn ' t p roper t o do s o , b u t we d i d i t . W e had a n FBI agen t i n a n abandoned s e r v i c e s t a t i o n and I g o t my brother-in-law, who was then i n h igh school , t o b e excused f o r a week from s c h o o l s o h e cou ld s i t t h e r e a t t h e phone because of h i s knowledge o f I t a l i a n . He is now a lawyer.

. r p o l i : I g o t t o know something abou t FBI a g e n t s . These were t h e a g e n t s t h a t were ready t o shoo t t h i n g s o u t . These were n o t accountan t s o r i n v e s t i g a t o r s of bank embezzlement. These were a g e n t s who were t r y i n g t o t r a c k down gangs te r s . A s I s a y , they p u t t h e t a p on t h e phone of Negr i ' s mother, and, u n f o r t u n a t e l y , t h e t a p went on one day t o o l a t e . I f we had t h e t a p on a day sooner , I might have made a c o n t a c t wi th Negri . But anyway, I never made t h e c o n t a c t .

We a l s o knew t h a t John Pau l Chase was a f r i e n d o f "Baby Face" Nelson, s o what we d i d was t o t r y t o c o n t a c t peop le who knew Chase. Chase's g i r l f r i e n d more o r l e s s submi t t ed h e r s e l f t o a pickup by t h e FBI because Chase wanted t o know i f they had photos o f him. They took h e r t o t h e Shaw Hotel t o i n t e r r o g a t e h e r . They d i d n ' t t a k e h e r b e f o r e t h e n e a r e s t United S t a t e s m a g i s t r a t e , as they were o b l i g a t e d t o do. There was no m a g i s t r a t e then-- i t was t h e United S t a t e s commissioner.

An a t t o r n e y named Will iam F e r r i t e r then f i l e d a p e t i t i o n f o r w r i t o f habeas corpus f o r h e r r e l e a s e and I f i l e d a p l e a d i n g i n t h o s e days known a s a demurrer on t h e theory t h a t h e had n o t a l l e g e d t h a t he was doing t h i s a t h e r r e q u e s t . The c o u r t s u s t a i n e d my demurrer and dismissed t h e p e t i t i o n . I n t h e morning a f t e r t h e h e a r i n g i n t h e a f t e r n o o n , t h e FBI shipped h e r o u t o f t h e Shaw Hotel t o I l l i n o i s and when t h e a t t o r n e y f i l e d a new p e t i t i o n t h e n e x t day w i t h t h e p roper a l l e g a t i o n s , I f i l e d a r e t u r n t o t h e e f f e c t t h a t t h i s young l a d y was no l o n g e r i n t h e j u r i s d i c t i o n o f t h i s c o u r t , and t h a t ended t h e m a t t e r .

Zi rpo l i : She ta lked , and a s a r e s u l t of h e r conversat ion, they d i d ca tch up with "Baby Face" Nelson and John Paul Chase and Nelson's w i f e i n Barrington, I l l i n o i s , I n t h e shoot-out t h e r e , two FBI agents 1S.P. Cowley and H.E. Hol l i s ] were k i l l e d and ''Baby Face'* was a l s o k i l l e d . Af t e r c r u i s i n g around f o r q u i t e a while , they f i n a l l y w e n t t o look f o r a p r i e s t f o r t h e l a s t r i t e s f o r Nelson,

They picked up Chase and Nelson's w i f e THelen G l l l i s ] and then they s t a r t e d looking f o r Negri.

They eventua l ly picked up Negri i n Por t land , Oregon. Negri was coming ou t of church, midnight Mass 119341. He had been a t tending Mass with a madam up the re . A s he came ou t and walked down t h e l ane , t h e church was s e t back, he suddenly saw t h e FBI agents and a l l guns were po in t ing a t Negri. They took him immediately t o San Francisco. I n s o doing they d id no t have t o go through formal removal procedures because Negri consented t o t he removal, They brought him t o t h e j a i l i n Piedmont, a very e l i t e j a i l , but i t hadn ' t had any p r i sone r s f o r a long time.

Then from t h e j a i l , they brought him t o my o f f i c e f o r an i n t e r - view and t h e f i r s t ques t ion I asked him was, "How do you l i k e t h a t j a i l i n Piedmont?" He s a i d , "Oh, t h a t ' s t h e j a i l f o r you! They even give you napkins." I l augh te r ]

I then interviewed him and we had a s e r i e s of in te rv iews . Some of t h e s ta tements given by Negri a r e repor ted a t g r ea t l eng th i n t h e f i l e s .

Negri f i r s t met Nelson i n 1932 when Negri was working f o r Hans S t r i t m a t t e r and Joe Parente who were no tor ious rum runners a t t h e time. They h i r ed some of t he se fel lows a s toughs t o go wi th t h e t rucks t o avoid having t h e i r l i q u o r h i jacked . Chase was a l s o so employed. The employment a rose through Graham and Mc Kay, no tor ious Nevada gamblers and p r o p r i e t o r s of a h o t e l and gambling i n s t i t u t i o n , t h e Golden Hotel.

Nelson a c t u a l l y t o l d t h e s e people about t h e f a c t t h a t he had been an escapee from t h e p r i son i n J o l i e t [ I l l i n o i s ] and then they read i n newspaper a r t i c l e s and p a r t i c u l a r l y i n a magazine s t o r y about t h i s shoot-out wi th [FBI] Agent Baum, who was k i l l e d and [FBI] Agent Newman who was wounded. A t t h e time he was under indictment i n Wisconsin and was then a f u g i t i v e from j u s t i c e . The ILindbergh] s t a t u t e which appl ied t o i n t e r s t a t e f l i g h t then appl ied t o him and i t would apply t o anyone t h a t harbored and concealed him.

A s I say , Nelson came back t o t h i s a r ea . He wasn't a rum runner anymore. He was now a p a r t of t h e D i l l i n g e r gang and a bank robber. He went t o Spider ~ e l l y ' s c a f e on t h e Barbary Coast where Joe Negri was working a s a clean-up man, H e cleaned up the p lace ,

Z i r p o l i : washed t h e windows and t h e f l o o r s and t h e bathroom and e v e r y t h i n g e l s e . Nelson saw J o e Negri and asked him how h e was g e t t i n g a long . J o e s a i d t h i n g s were p r e t t y tough, h e d i d n ' t have any money, and "Baby Facet' peeled o f f $700 and gave i t t o him and s a i d h e would b e i n c o n t a c t w i t h him, "Baby Face" con tac ted him la ter . I have a l l o f t h e s e d a t e s w r i t t e n somewhere. Let me s e e . [pauses t o go through no tes ]

Negri had f i r s t m e t G i l l i s ("Baby Pace1') 2n March o r A p r i l of '32 w h i l e they were employed as t r u c k d r i v e r s f o r Hans S t r i t m a t t e r and J o e Paren te ,who had a l i q u o r smuggling gang a t t h e t ime. G i l l i s t o l d Negri t h a t w h i l e s e r v i n g a l i f e s e n t e n c e i n t h e s t a t e pen i ten- t i a r y i n I l l i n o i s on a bank robbery job , he escaped and made h i s way t o Reno, where h e con tac ted W i l l i a m Graham, of t h e n o t o r i o u s Graham and James Mc Kay gambling s y n d i c a t e . Graham provided r e f u g e f o r G i l l i s and t h e r e a f t e r s e n t him t o s e e James J. G r i f f i t h , p r o p r i e t o r o f t h e Andromeda Cafe on 155 Columbus Avenue i n San Franc i sco . At t h e t i m e G i l l i s saw G r i f f i t h , G i l l i s was u s i n g t h e name of Jimmy Burne t t and a l s o t h e name o f Jimmy Burne l l . G r i f f i t h in t roduced him t o S t r i t m a t t e r , p r o p r i e t o r o f t h e Bridge Cigar Company i n S a u s a l i t o .

The rum running a c t i v i t i e s o f S t r i t m a t t e r and P a r e n t e a t t h e t ime were e x t e n s i v e and r e q u i r e d t h e h i r i n g o f a number of toughs t o serve as armed guards . S t r i t m a t t e r gave G i l l i s a job i n which h e w a s working i n a s s o c i a t i o n wi th John Paul Chase and J o e "Fatso" Negri , Anthony ''Soap" Moreno, Louis Tambini ("Doc Bones"), who had read about Nelson 's a c t i v i t i e s i n True D e t e c t i v e magazine. I t h i n k i t was True D e t e c t i v e , J u l y of 1932.

Negri d i d n ' t s e e Nelson a g a i n u n t i l sometime b e f o r e Christmas o f '32 when h e m e t him i n S p i d e r K e l l e y ' s b a r . Then h e d i d n ' t s e e him a g a i n u n t i l January o f '34 when Nelson t o l d him t o meet him i n t h e V a l l e j o General H o s p i t a l . Negri was f a m i l i a r w i t h t h e h o s p i t a l because i t w a s a s top-over s t a t i o n f o r them d u r i n g t h e i r rum running days and i t w a s o p e r a t e d by IThomas C.] "Tobe" Wil l iams, a l s o known as t h e Guniff from Galway. Negri had heard t h a t "Tobet' w a s a l l r i g h t and cou ld b e t r u s t e d . H e went t o t h e h o s p i t a l and asked "Tobe" where Nelson w a s . "Tobe" t o l d him h e would be i n i n a l i t t l e whi le . He m e t Nelson i n t h e r e c e p t i o n room where i n a bookcase they had a book w i t h f a l s e covers i n which Nelson used t o keep some of h i s cash . For t h e purposes o f t h e t r i a l w e had him d e s c r i b e e x a c t l y where t h e r e c e p t i o n room was. We r e c o n s t r u c t e d t h a t room, t h e bookcase, and e v e r y t h i n g else.

A f t e r meet ing w i t h Nelson a t t h e h o s p i t a l they went t o a r e s t a u r a n t t o e a t w i t h Nelson's wi fe , who l a t e r checked i n t o t h e h o s p i t a l f o r medical a t t e n t i o n . Negri would make v a ~ i o u s t r i p s t o t h e h o s p i t a l and b r i n g h e r f lowers on some occas ions . There Negri m e t Chase and Nelson and they agreed t h a t t h e y would c o n t a c t him.

Z i r p o l i : Nelson and Chase asked Negr i i f h e wanted t o j o i n t h e i r gang, which meant h e was going t o j o i n "Baby Face'' and D i l l i n g e r and Hamilton and who were t h e others--"Pret ty Boy" Floyd. Anyway, h e would tie j o i n i n g up w i t h t h i s gang and he wanted t o know whether h e had t o p a r t i c i p a t e i n bank r o b b e r i e s . They t o l d h i m , "No, you d o n ' t have t o . We've got t h e mob t o do t h a t . You w i l l b e t h e messenger boy. l1

So h e knew t h a t t h a t was going t o be h i s assignment and they would l e t him know when they wanted him by send ing a l e t t e r t o "Frenchy" Mazet ( a l s o known as "Blondie"). H i s t r u e name was IEugene] Gene Mazet .

Sharp: R igh t , t h a t ' s t h e name t h a t I have,

Z i r p o l i : Gene Mazet, yes . When Negri f i n a l l y g o t a l e t t e r i n June of 1934, h e was t o l d t o go t o Chicago. He d i d go t h e r e , and t h e r e h e m e t D i l l i n g e r , Hamilton, Van Meter, Jack P e r k i n s , and some others- whose names I don' t r e c a l l .

I n one o f t h e i n t e r v i e w s Negri s a i d t h a t t h e day a f t e r t h e d i sappearance o f t h e Reno bank t e l l e r , F r i s c h , h e met Chase a t t h e bank h u f f e t r e s t a u r a n t on 22nd S t r e e t i n San Franc i sco , which was o p e r a t e d by "Soap" Moreno. Chase t o l d Negri h e had been i n Reno and had t o g e t o u t i n a h u r r y because t h i n g s were g e t t i n g too h o t f o r him--Chase's Buick had blood on t h e back s e a t and was suspec ted t o have been used i n connect ion w i t h t h e disappearance o f F r i s c h and e v e n t u a l l y was to rched .

F r i s c h was t o have been t h e s t a r w i t n e s s a g a i n s t Graham and Mc Kay, who were charged w i t h unlawful use o f t h e m a i l s t o de f raud . Of course , h i s d isappearance ended t h e p r o s e c u t i o n , s o t o speak, o f Graham and Mc Kay, b u t brought many FBI a g e n t s i n t o t h e Reno-San Franc i sco a r e a and prompted Chase and Negri t o go t o Chicago .

There they planned a b i g bank robbery i n t h e c o u n t r y s i d e and N e g r i w a s t o b e t h e messenger boy. They cased t h e p l a c e f i r s t and mapped o u t t h e roads . They committed t h e robbery and met Negri a t an i n t e r s e c t i o n and gave him t h e s u i t c a s e s w i t h t h e money, which h e then brought t o t h e h o t e l i n Chicago. When t h e members of t h e gang r e t u r n e d t o t h e h o t e l , they each gave Negri a t i p o u t of t h e i r r e s p e c t i v e s h a r e o f t h e money. So each one gave him $100 and h e ended up with. $600 o r $700 f o r h i s r o l e i n t h e robbery.

I n one of t h o s e r o b b e r i e s a n o f f i c e r was k i l l e d ,

Sharp : That was Baum, t h e FBI agen t?

Z i r p o l i : No, Baum was k i l l e d when "Baby Face" escaped from J o l i e t and t h e FBI was t r y i n g t o p i c k him up.

Sharp: That ' s r i g h t , bu t I a l s o have Cowley and Ho l l i s . Is that--

Z i rpo l i : No, Cowley and H o l l i s were t h e two agents t h a t were k i l l e d i n Barrfngton, I l l i n o i s . The f a c t t h a t an o f f i c e r was k i l l e d i n th.e bank robbery cons t i t u t ed some l eve rage -on Negri, and I am s u r e t h e FBI used i t t o g e t hi's f u l l confession.

Sharp: So the re a r e t h r ee agents t h a t were k i l l e d . The ones t h a t you a r e j u s t going t o t a l k about, Baum, Cowley, and H o l l i s . They were a l l agents t h a t were k i l l e d a s p a r t of t h e search f o r "Baby Pace" Nelson--

Z i rpo l i : Tha t ' s r i g h t , and Newman was wounded. Now, Newman became important t o us because he t e s t i f i e d before t h e grand ju ry i n Wisconsin and h e was t h e f i r s t wi tness we c a l l e d t o t he s t and because he was a b l e t o l a y t h e groundwork f o r t h e c o u r t ' s j u r i s d i c t i o n , f l i g h t i n i n t e r - s t a t e commerce.

Negri, t h e day before t h e t r i a l , was i n my o f f i c e with m e and Tom [Thomas C.] Lynch and Vernon [E.] Criss, t h e FBI agent . It was approximately noon hour. I s a i d t o Negri, "When you t e s t i f y tomorrow--" And h e s a i d , "Who me? I ' m no t t e s t i f y i n g tomorrow." I s a i d , "It ' s lunch hour. We a r e going t o go lunch, Tom Lynch and I. "

We l e f t him with Vernon Criss, t h e FBI agent , and I s a i d , "We'll meet aga in a t two o 'c lock."

Now, I don ' t know what Vernon Criss t o l d Negri, and I never inqui red . But a f t e r two o 'c lock when we came back, Negri s a i d he would go, he would t e s t i f y . Negri was scared s t i f f , n a t u r a l l y . These mobsters t h a t you a r e t a l k i n g about , no t on ly Nelson but t h e o t h e r people t h a t he was going t o impl ica te , would want t o seek t h e i r revenge i n some fash ion . But he agreed t o t e s t i f y and he d id . A s I say , we put agent Newman on f i r s t and, a s Tom Lynch s a i d , "We put Negri on and we go f o r broke. I f h e f a i l s i t , t h a t ' s t h e end of our case."

Well, he d i d n ' t f a i l us. I n f a c t , a f t e r he t e s t i f i e d - - f i r s t Newman was on--and a f t e r he t e s t i f i e d f o r about f i f t e e n minutes, I saw him INegri] down i n t h e marshal ' s cage. Negri s a i d t o me, t h a t a f t e r he had been t e s t i f y i n g f o r about f i f t e e n minutes, "I could s e e t h e pained expression on Johnny T a a f f e t s face." (He was ch ie f counsel f o r "Tobe" Williams and t h e o t h e r defendants . ) H e a l s o s a i d with ges tu re s of h i s f i n g e r s t h a t he could t e l l t h a t t h e muscles of Taaf fe ' s anus were twitching. [ l augh te r ] That was h i s way of expressing t h e e f f e c t of h i s testimony.

A s I say , t h e t r i a l took p lace , I th ink i t was i n March of '34 o r '35.

Sharp : I n '35.

Z i r p o l i : I n '35 and we had good lawyers ; i t w a s a g r e a t show. There was Judge Walter C, Lindley s i t t i n g t h e r e . He had t h i r t y - f i v e y e a r s exper ience as a p r e s i d i n g d i s t r i c t judge. He had p r e v i o u s l y t r i e d t h e Al Capone case ; h e was known throughout t h e coun t ry . The pro- s e c u t o r s were m y s e l f ; Robert 1B . I McM211an, who was a v e r y a b l e t r i a l lawyer (he was a s e n i o r lawyer , h e was w e l l a l o n g i n y e a r s , b u t a v e r y a b l e t r i a l lawyer w i t h a l o t o f p r i o r e x p e r i e n c e ) ; Tom Lynch, who later became [ s t a t e ] a t t o r n e y general*; 'Valent ine C. Hammack, who became one o f t h e p r o s e c u t o r s o f t h e Japanese war c r i m i n a l t r i a l s , t h e IHideki l Tojo t r i a l . * * We had a s s i s t a n t U.S. a t t o r n e y Miles P ike , who came down from Reno. He l a t e r became t h e c h i e f j u s t i c e o f t h e supreme c o u r t o f Nevada. Th is was t h e p r o s e c u t i o n crew.

Against u s we had some v e r y f i n e lawyers and I have l i s t e d them a l l . You may have a l ist of them t h e r e , I d o n ' t know.

Sharp : I do, y e s , among them John Taaffe .

Can I j u s t s t o p you r i g h t t h e r e because I have a l o t of q u e s t i o n s about t h e t r i a l ? Let m e j u s t a sk you about t h e lawyers f o r Will iam Schivo, [Ralph] Rizzo, and t h e o t h e r s . They had r e a l l y b i g name lawyers t o defend them, and I wondered how was i t t h a t they g o t t h e s e lawyers t o beg in wi th?

Z i r p o l i : They r e t a i n e d them. Of course , t h e r e was some f e e l i n g among some of t h e lawyers , Johnny Taaf fe i n p a r t i c u l a r , t h a t t h e government was going t o i n d i c t t h e s e people f o r h a r b o r i n g and concea l ing Nelson, b u t they weren ' t t o o s u r e . They made up a l i s t once a t a r a c e t r a c k and one o f these--I d o n ' t remember whether i t w a s Schivo o r Rizzo-- t a l k e d , s o we l e t him go. Of course , Negri pleaded g u i l t y . He. g o t a six-month sen tence .

But "Tobe" Will iams could w e l l a f f o r d t h e b e s t and Graham and Mc Kay had used Johnny Taaf fe a s t h e i r lawyer i n t h e m a i l f r a u d c a s e i n New York and they p a i d him w e l l . I n f a c t , t h e y p a i d him $25,000 f o r one o f t h e c a s e s . However, they won most o f i t back w h i l e p l a y i n g c a r d s on t h e t r a i n on t h e way o u t t o New York f o r t h e mai l f r a u d t r i a l .

*Readers a r e d i r e c t e d t o an o r a l h i s t o r y conducted w i t h Thomas C. Lynch, A Career i n P o l i t i c s and t h e ~ t t o r n e ~ General ' s O f f i c e , Regional Ora l H i s t o r y O f f i c e , The Bancrof t L ib ra ry , U n i v e r s i t y of C a l i f o r n i a , Berkeley, 1982.

**Tojo w a s t h e prime m i n i s t e r o f Japan d u r i n g World War 11. He was t r i e d as a war c r i m i n a l and executed.

Zirpol : Anyway, they were a b l e t o h i r e them. You had INathan C.] Coghlan, dean of t h e c r imina l ba r , t h e oldest-member of t he ba r ; Johnny Taaffe, undoubtedly t h e b e s t t r i a l lawyer s i n c e Ea r l Rogers; Harry McKenzie. There were two McKenzie broth-ers, they were bo th ab l e . McKenzie w a s a fellow- you had t o worry about because he could i n t ro - duce a l o t o f l e v i t y I n t o a trial and we wanted t h i s t o be a very s e r i o u s business .

We would plan every n lgh t . .We would meet i n t h e grand ju ry room and plan our s t r a t e g y f o r t h e next day. Be d i d a l o t of t h ings t h a t maybe you wouldn't do today. They thought we were going t o b r ing a witness t o t e s t i f y about one of t h e defendants whom they claimed had been beaten up by t h e FBI. We had no i n t e n t i o n of c a l l i n g t h e wftness , y e t we marked a l o t o f e x h i b i t s which r e l a t e d t o t h a t witness . This marking of t h e e x h i b i t s f o r identification caused t h e defendants ' a t t o rney t o prepare f o r evidence w e d id no t in tend t o in t roduce .

,I a Sharp: You mentioned e a r l i e r t h a t Negri and t h e o t h e r s were prosecuted under

t h e Lindbergh--

Z i rpo l i : The Lindbergh kidnapping gave r i s e t o t h e i n t roduc t ion of l e g i s l a t i o n i n Congress which made i t poss ib l e t o prosecute a l l of t he se i n t e r - s t a t e f l i g h t cases . So what we were doing was u t i l i z i n g t h e laws enacted by Congress a r i s i n g o u t of t he Lindbergh kidnapping,

Sharp: The law was passed i n 1934. So by t h e time you had t h i s case , i t was a r e l a t i v e l y new law.


Sharp: So you were prosecut ing him under e s s e n t i a l l y brand new l e g i s l a t i o n .

Z i rpo l i : Yes, and we d id i t under t h e conspiracy s t a t u t e , however, t o b r ing everyone i n , and t h e conspiracy s t a t u t e c a r r i e d a maximum pena l ty of only two yea r s .

Sharp: What I have i s a v i o l a t i o n of Sect ion 246 of T i t l e 18 and Sect ion 88.

Z i rpo l i : Eighty-eight would be t h e conspiracy s t a t u t e , a s I r e c a l l i t . Now, t h e code has been amended, but a s I r e c a l l i t , t h a t was t he s t a t u t e .

Sharp: So what r e a l l y was t h e connection between t h e so-called Lindbergh law and t h e t r i a l , t h e case of - U.S. v . Negri et. a l . ? *

*Judge Z i r p o l i ' s f i l e s show t h i s case numbered a s 25287-L, - U,S. v . Joseph Ray Negri, a l i a s , e t . a l .

Z i r p o l i : The Lindbergh law proceeded t o make f l i g h t i n i n t e r s t a t e a p a r t o f Congress ' s j u r i s d i c t i o n , i . e . , i n t e r s t a t e commerce. Once t h i s was e s t a b l i s h e d we then used t h e conspTracy s t a t u t e t o br$ng i n a l l t h e - named defendan ts .

Sharp: I f you hadn ' t had those changes by t h e t ime t h i s p a r t i c u l a r t r i a l had come a b o u t , how d i f f e r e n t l y would Negri and t h e o t h e r s have been t r i e d ?

Z i r p o l i : Probably by s t a t e a u t h o r i t i e s .

Sharp: And i t would have been p o s s i b l y a l e s s e r o f f e n s e ?

Z i r p o l i : I d o n ' t know whether i t would n e c e s s a r i l y be a l e s s e r o f f e n s e because t h e s t a t e crime v i o l a t i o n s c a r r i e d w i t h them i n many i n s t a n c e s more s e v e r e p e n a l t i e s than t h e f e d e r a l l aw c a r r i e s .

Sharp: What were t h e main problems o r main i s s u e s f o r t h e p rosecu t ion i n a c a s e l i k e t h i s one?

Z i r p o l i : The main problems f o r t h e p r o s e c u t i o n were t o prove t h a t t h e s e co-consp i ra to r s a c t u a l l y harbored and concealed "Baby Face" Nelson, and d i d something t o ha rbor and concea l him w i t h t h e knowledge t h a t h e was a pe rson who was wanted and w a s i n f l i g h t f o r t h e commission o f f e l o n i e s . So i t became important f o r u s t o have Negri t e s t i f y about t h e c o n v e r s a t i o n s h e had w i t h t h e de fendan ts , what they had read i n t h e newspapers, True D e t e c t i v e magazine, and what "Baby Face" himself t o l d him. They, t h e r e f o r e , had knowledge and having knowledge, i f they f u r n i s h e d him money o r housing o r t r a n s p o r t a t i o n o r d i d any- t h i n g o f t h a t c h a r a c t e r , they were a i d i n g and a b e t t i n g .

Now, t h e de fense was, f o r i n s t a n c e , t h a t "Soap" Moreno was fo rced t o do i t , t h a t "Baby Face" took him f o r a r i d e down t o t h e beach n o t too f a r from t h e C l i f f House. They went o u t on t h e beach, and Nelson took h i s gun o u t and t w i r l e d i t on h i s f i n g e r and t o l d him, "We need some he lp . " These f e l l o w s were q u i t e r e l u c t a n t t o h e l p "Baby Face" a t t h i s t ime. But even though they were r e l u c t a n t , t h e f a c t remains t h a t they d i d .

Sharp: I was i n t r i g u e d t o s e e t h a t t h e r e were s o many w i t n e s s e s . I counted t h i r t y - n i n e w i t n e s s e s , Who decided t h e s e l e c t i o n and t h e o r d e r of t h e w i t n e s s e s ?

Z i r p o l i : B a s i c a l l y , I d i d bu t w i t h th.e h e l p of [Robert] McMillan and IThomas] Lynch. Miles P i k e of Reno d i d n ' t p lay a s i g n i f i c a n t r o l e t h e r e . He

, came i n t o t h e c a s e because we had a s one o f - t h e de fendan ts , t h e f e l l o w from Reno, [Frank] Cochran, and we were unsuccess fu l i n g e t t i n g t h e removal o f Cochran's w i f e IAnna Cochran], and a l s o because of o t h e r i m p l i c a t i o n s a s they r e l a t e d t o Graham and Mc Kay and p o s s i b l y t h e disappearance o f Frisch. .

Z i r p o l i : But we had s o many wi tnesses because you had t o p u t e v e r y t h i n g t o g e t h e r . It i s n ' t enough j u s t t o have Negri t e s t i f y . I f Negri s a y s they were a t a p a r t i c u l a r h o t e l , w e wanted a r e g i s t e r o f t h a t h o t e l t h a t shows t h a t they were t h e r e . O r , i f t h e y s topped a t some m o t e l i n Nevada, we wanted t h e people from Nevada t h e r e t o c o r r o b o r a t e what t r a n s p i r e d . W e wanted t h e f lunky t h a t worked i n J o e !Paren tevs p l a c e t h e r e t o t e s t i f y as t o what happened,. W e were t r y r n g t o cor- r o b o r a t e Negri a l l o f the way down t h e l i n e , s o wherever h e s a i d h e was, we had someone who t e s t 2 f i e d t h a t t h a t ' s where h e was. Then we needed t h e n u r s e s and t h e d o c t o r s over i n t h e h o s p i t a l .

Sharp: I had down t h a t H.H. McPike was t h e U.S. a t t o r n e y .

Z i r p o l i : That ' s r i g h t , Henry McPike.

Sharp : --And t h a t h e ques t ioned Negri b e f o r e t h e San Franc i sco grand j u r y i n January o f ' 35.

Z i r p o l i : Y e s .

Sharp: I wondered i f h e then had a n a d d i t i o n a l r o l e once t h e t r i a l a c t u a l l y began?

Z i r p o l i : McPike? No, McPike d i d n o t go i n t o c o u r t t o t r y c a s e s . He r a n t h e o f f i c e o f t h e United S t a t e s a t t o r n e y . This was an impor tan t c a s e , s o h e became very much i n t e r e s t e d i n i t . When we a r r e s t e d t h e s e people , we would b r i n g them up t o h i s o f f i c e t o q u e s t i o n them. I remember "Soap" Moreno was brought t o t h e o f f i c e o f McPike. I was t h e r e and I was do ing t h e q u e s t i o n i n g i n t h e presence o f McPike.

Now, "Soap" Moreno had gone t o t h e same grammar school I had gone t o , s o I was t r y i n g t o s a y , "Look, Soap, f o r your own good, why d o n ' t you t a l k and t e l l us?" And every t ime I asked him any th ing , h i s r esponse was, "I have no th ing t o say." No m a t t e r what q u e s t i o n I asked him, h e s a i d , "I have no th ing t o say . " So we d i d n ' t g e t any th ing o u t o f Moreno. I w a s hopefu l t h a t h e would become a w i t n e s s .

None of t h e s e people t a l k e d excep t f o r Rizzo and Schivo.

They a l l had good lawyers , as I say--somebody p a i d them a l l - - . Then you look over t h e l i s t o f t h e i r a t t o r n e y s . Of course , now, Jake E h r l i c h r e p r e s e n t e d a man from Chicago, [Clarence] L e i d e r , b u t h e pleaded him g u i l t y . There were s e v e r a l of them t h a t p leaded g u i l t y , s o by t h e t i m e we went t o t r i a l , t h e number t h a t a c t u a l l y went t o t r i a l was n o t t h a t g r e a t .

Sharp: I have a p a r t o f t h e l i s t h e r e . Joseph Sweeney.

Z i r p o l i : A v e r y f i n e t r i a l lawyer; Frank Hennessy who l a t e r became U.S, a t t o r n e y ; Jake E h r l i c h , Nate Coglan, and Fred McDonald, who r e p r e s e n t e d Grace P e r k i n s , who was a c q u i t t e d . I don ' t t h i n k h e asked a q u e s t i o n dur ing t h e whole t r i a l . He j u s t sat Gack and as l o n g as s h e wasn' t mentioned h e wasn't goi-ng t o do anythi'ng, which was v e r y smar t . When t h e t h e came t o a r g u e t o t h e j u r y , h e s a i d , "I d o n ' t remember h e a r i n g .my c l i e n t % name mentioned."

Tom Riordan, former a s s i s t a n t U.S. a t t o r n e y ; Sol Abrams, a former a s s i s t a n t U.S. a t t o r n e y ; and IGeorge A.1 White ly of Reno, who r e p r e s e n t e d Cochran--

Sharp : I have Thomas Riordan, S o l Abrams, and Richard Fuidge?

Z i r p o l i : Fuidge r e p r e s e n t e d M r s . Nelson [Helen G i l l i s ] l a t e r . That was a v e r y important s i t u a t i o n t h e r e . She had se rved t ime i n t h e Milan [Michigan] p r i s o n and t h e r e was a l o t o f sen t iment t h a t was going up i n h e r f a v o r , t h a t a f t e r a l l , s h e w a s f o r c e d t o do t h i s , and s h e had h e r boy. It became a q u e s t i o n o f what should we do, s o we agreed t o g i v e h e r p r o b a t i o n because we found t h a t t h e b a s i c purpos-e of t h e p r o s e c u t i o n had been s e n r e d , and s h e had s e r v e d t ime and we d i d n ' t s e e t h a t we were going t o g e t any th ing by p r o s e c u t i n g h e r f u r t h e r .

Since s h e was prepared t o p lead g u i l t y on t h e p roba t ion , t h a t ' s what we d i d . Otherwise, we would have had t o go t o t r i a l and we d i d n ' t t h i n k t h e c a s e j u s t i f i e d going through t h i s v e r y d e l i c a t e s u b j e c t of correspondence between o u r o f f i c e and t h e o f f i c e of t h e a t t o r n e y g e n e r a l i n Washington, D.C., and t h e r e may b e some l e t t e r s i n t h e f i l e i n r e l a t i o n t o t h a t .

Sharp: I t h i n k you need t o name h e r f o r t h e purpose o f t h e t a p e .

Z i r p o l i : Helen G i l l i s , ["Baby Face"] Nelson's w i f e .

Sharp: I d o n ' t remember s e e i n g any exchange o f t h e l e t t e r s , b u t I d i d wonder about t h e hand l ing of h e r because s h e was a woman, how d i f f e r e n t l y s h e was handled because s h e was a woman.

Z i r p o l i : W e handled h e r d i f f e r e n t l y because s h e was t h e w i f e and we f e l t t h e r e was a c e r t a i n amount o f coerc ion a s f a r as s h e was concerned, and t h e y had h e r c h i l d . She had se rved t ime. This was a d e l i c a t e s u b j e c t f o r us . It was something we d i s c u s s e d . We wro te t o t h e a t t o r n e y g e n e r a l t o g e t h i s okay which we g o t . A s I s a g , Fuidge was going t o go t o t r i a l . Fuidge was doing e v e r y t h i n g h e could t o b u i l d up sympathy f o r h e r i n t h e p r e s s and e lsewhere and t h e p r e s s w a s responding.

Sharp: I had down t h a t sh.e was t r i e d s e p a r a t e l y and t h a t s h e pleaded g u i l t y .

Z i r p o l i : Yes, t r i e d s e p a r a t e l y . I n o t h e r words, we d i d n ' t t r y t o p r o s e c u t e h e r i n t h e main c a s e , She was i n Milan Tpr ison] and a f t e r i t was over , we brought h e r c a s e up. She was brought o u t h e r e on a w r i t and s h e pleaded g u i l t y , T h i s was s w e r a l m o n t h s l a t e r , q u i t e a number of months l a t e r ; I g u e s s a t l e a s t six months l a t e r .

Sharp :

Z i r p o l i :

Sharp :

Zirpo l i :

Sharp :

Z i r p o l i :

Sharp :

Zirpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

I had down a n o t e t h e n t h a t . y o u had w r i t t e n a l e t t e r under McPikevs s i g n a t u r e t o Homer Cummings, t h e U.S. a t t o r n e y g e n e r a l , i n May of '35, g h f n g d e t a i l s of t h e Negri t r i a l , how i t tu rned o u t and every- t h i n g . Also, you had asked a u t h o r i z a t i o n t o e n t e r a n o l l e p rosequ i as t o a l l o f t h e de fendan ts ' names i n t h e ind ic tment , which meant t h a t you weren ' t going t o p r o s e c u t e any f u r t h e r . I a m n o t s u r e i f I unders tand why you s e n t t h e l e t t e r and why a l l o f t h i s had t o b e done?

I ' don ' t remember. When was t h i s ?

I n May you s e n t a le t ter 15 May 19351.

Oh, y e s , we dismissed some of t h e people i n t h e c a s e . L e t ' s s e e i f I have a n i n d i c a t i o n who we dismissed a t t h e t r i a l .

I might have p a r t o f that--Arthur P r a t t , Ralph Rizzo, and W i l l i a m Schivo.

Y e s , d e f i n i t e l y two o f them became w i t n e s s e s , Rizzo and Schivo.

Grace Perk ins was a c q u i t t e d .

Yes, s h e was r e p r e s e n t e d by Fred McDonald.

Louis Tambini w a s a c q u i t t e d , Eugene Mazet was a c q u i t t e d .

Tha t ' s r i g h t .

But t h e d a t e o f t h e c o n v i c t i o n f o r t h e people who were conv ic ted I have as A p r i l 5 , 1935.

The c a s e was dismissed b e f o r e t r i a l a s t o Will iam Schivo and Ralph Frank Rizzo. They f u r n i s h e d evidence which cor robora ted t h e government ' s case . Anna Cochran s u c c e s s f u l l y r e s i s t e d removal from Nevada, and t h e c a s e a g a i n s t h e r was l a t e r d i smissed . The c a s e a g a i n s t Chase was dismissed because h e had a l r e a d y pleaded g u i l t y t o t h e murder charge and was on h i s way t o A l c a t r a z when t h i s t r i a l s t a r t e d .

Sharp : But with. Chase and Anna Cochran, they were t r i e d i n 1938?

Z i r p o l i : They were n w e r t r i e d . They were dismissed a t a later d a t e , probably 1938, Anna Cochran, t h e judge i n Nevada r e f u s e d t o remove h e r . So s h e never went t o t r i a l and we l a t e r d ismissed h e r c a s e . Chase we dismissed because h e was s e r v i n g a l f f e s e n t e n c e ,

Clarence Le ider , o f c o u r s e , p l e a d e d gui . l ty- and Arthur P r a t t pleaded g u i l t y .

Tliere were two ind ic tments r e t u r n e d . One was a c o r r e c t i v e ind ic tment , s o t h e one t h a t d i d n ' t go t o t r i a l , w e d i smissed t h a t ?n i t s e n t i r e t y . But I had Helen G i l l i s p l ead ing g u i l t y i n December of '35, and Negri p leaded g u i l t y .

Sharp : I ' l l have t o look a t t h a t f i l e a g a i n because I thought t h a t I had unders tood t h a t i n 1938 John Pau l Chase and Anna Cochran were t r i e d f o r a v i o l a t i o n o f t h e Na t iona l Motor Vehic le Thef t Act , f o r o b s t r u c t i o n of j u s t i c e and harbor ing a c r imina l , , and f o r t h e murder o f IFBr Agents] S.P. Cowley and H.E. H o l l i s .

Z i r p o l i : No, Chase had a l r e a d y been t r i e d and convicted f o r t h e murder. He was t r i e d and conv ic ted a c t u a l l y f o r t h e murder of o n l y one o f them. I have s a i d two i n more than one p l a c e , b u t they j u s t t r i e d him f o r t h e murder o f one of t h e two a g e n t s . As I s a y , we may have c a r r i e d h e r on t h e books and i t was n o t d ismissed u n t i l some t ime l a t e r , j u s t a s we may have c a r r i e d Chase on t h e books.

Sharp: I wondered some about t h e r o l e o f Judge S t . Sure.

. r p o l i : Judge S t . Sure p a r t i c i p a t e d i n a l l o f t h e p r e l i m i n a r y proceedings . The t ime t o d e p o s i t b a i l came up and we had t h e b a i l h e a r i n g s . Judge S t . Sure p res ided over t h e b a i l h e a r i n g s and motions. I remember a t one o f t h e b a i l h e a r i n g s f o r "Tobe" Will iams, Johnny Taaf fe made a motion f o r t h e r e d u c t i o n of t h e b a i l and McPike was wi th me a t t h e t ime. I asked Judge S t . Sure f o r t h e r i g h t t o i n t e r r o g a t e "Tobe" Will iams a s t o h i s a s s e t s and what would be a p roper b a i l , consis- t e n t wi th h i s p r i o r h i s t o r y . Johnny Taaf fe r e f u s e d t o pe rmi t t h e i n t e r r o g a t i o n o f h i s c l i e n t , and s a i d t h a t h e would d e p o s i t t h e b a i l . He wasn ' t going t o a s k f o r a r e d u c t i o n i f h i s man had t o b e I n t e r - viewed. Of course , we wanted t o i n t e r v i e w him because we knew t h a t h e had a p r i o r record o f blowing t h e s a f e i n Montana back i n 1888 when h e l o s t h i s l e g ( t h a t ' s why h e had t h e wooden l e g ) , This was something t h a t we wanted, and a s l o n g a s we were t h e r e , l e t " make a r e c o r d .

You have t o remember, t o o , t h a t when you g e t back t o 1933; '34, and '35, t h e n a t u r e o f t h e news was completely d i f f e r e n t from what i t i s today. Today t h e papers a r e f u l l of cr ime, i t ' s t r u e , b u t a c a s e l i k e t h e "Baby Face" Nelson c a s e o r t h e Chinese s l a v e c a s e , t h i s was b i g h e a d l i n e news. You weren ' t worrying about I r a n o r I s r a e l o r

Zi rpo l i : nuclear energy o r anything o f t ha t ' cha rac t e r . Th.es.e were t h e b i g news i t e m s ; any l i t t l e th ing t h a t happened i n cou r t was a b i g n e w s $tern.

In those days, T f i l e d p e t i t i o n s t o cancel a c e r t i f i c a t e of c i t i z e n s h i p of th ree persons. There wouldn't be a s i n g l e newspaper s t o r y about t h e t h r ee , r a t h e r t h e r e would be s epa ra t e s t o r i e s about each one! The na tu re of t h e news was s o d i f f e r e n t i n those days.

Sharp: That was one of t h e th ings t h a t I wanted t o ask you about because you had mentioned t h a t e spec i a l l y t h i s case got . j u s t a l o t of media a t t e n t i o n . How d i d you have contac t wi th t h e r e p o r t e r s ? Was i t a mat ter of them coming t o s e e you?

Z i rpo l i : They'd come t o s e e you every day! I f I t o l d something t o a r e p o r t e r of t h e a f te rnoon paper , t h e r e p o r t e r f o r t h e morning paper ( a woman) would come i n t o s e e me t h e next morning and she would be a s s o r e a s h e l l , and s a i d , " I ' m not going t o p r i n t your name i n t h e paper anymore, I ' m no t going t o do t h a t because you gave him a scoop." Well, I wasn't t r y i n g t o g ive anybody a scoop and people were f i g h t - i n g f o r scoops then, too. They wanted t o break t h e news f i r s t .

Sharp: What d id you th ink of t h e r epo r t i ng of ' t he "Baby Face" Nelson t r i a l ?

Z i rpo l i : Oh, i t was f a i r l y accura te , c e r t a i n l y a s accu ra t e a s what you ge t today, maybe b e t t e r . You had r epo r t e r s ass igned f u l l t i m e t o our cou r t . There was a r epo r t e r from t h e Examiner, f o r t h e Chronicle, t h e Cal l -Bul le t in , and t h e Daily News--four papers.

Of course, I have t o admit t h a t being a young lawyer, I wanted t o make my way i n my profess ion . I wanted my name t o become known and I was pleased t o be quoted i n the press . I don ' t g ive a damn today. I p r e f e r no t t o be quoted a t a l l . They can f o r g e t m e a l t o g e t h e r and I ' d be happy, but t h a t was a d i f f e r e n t yea r , a d i f - f e r en t per iod i n my l i f e , and I was looking forward t o t h a t .

So I was happy t o t a l k t o r e p o r t e r s , and t h e r e weren't t h e same s t r i c t r u l e s about t a l k i n g about cases t h a t you have now.

Sharp: You could say p r e t t y much whatever you thought?

Z i rpo l i : That 's r i g h t .

Sharp: Was McPike a s t i c k l e r about t a l k i n g t o r e p o r t e r s o r suggest ing how you handle r e p o r t e r s ?

Z i rpo l i : No, no, t h e only time I ever caught h e l l was from t h e Attorney General of t h e United S t a t e s when an a r t i c l e appeared i n True Detec t ive maga- z ine , "G-Men S t r ike . " He s a i d t h a t a U.S. a t t o rney should no t lend h i s name t o an a r t i c l e of t h a t na ture .

Sharp: I was going t o ask you about t h a t . How d i d you come about w r i t i n g t h a t ?

Z i rpo l i : There w a s a l o c a l w r i t e r . I c a n ' t even t h i n k of h i s name, a very well-known l o c a l w r i t e r who l a t e r wrote q u i t e a number of books and h e w a s i n t e r e s t e d and wanted t o write t h i s s t o r y . H e s a i d , "Al , I would l i k e t o w r i t e t h e s t o r y as t o l d by you."

So w e wrote t h e s t o r y as t o l d by m e and w e t a l ked about t h ings l i k e t he se mobsters meeting i n t h e back o f a red b r i c k house t o purchase bullet-proof v e s t s , t h a t Perkins w a s t h e salesman, and t h e b u l l e t s could s p l a t t e r aga in s t t h e r ed b r i c k w a l l of t h e school- house! [ l augh t e r ] So i t made an i n t e r e s t i n g s t o r y .

Sharp: Did h e come and s i t i n t h e courtroom and l i s t e n t o ge t t h e f l a v o r of i t ?

Z i rpo l i : I don ' t remember how much a t t e n t i o n he paid , bu t he was following t h e case and then h e wanted t o w r i t e t h e s t o ry . H e a l so wrote t he s t o r y on t h e whi te s l a v e t r a f f i c , t h e Chinese case . He made a b i g s t o r y ou t of t ha t . Although I prosecuted t h e case i t w a s "as t o l d by Valent ine C. Hammack." I s a i d , "Go ahead, you t e l l t h e s tory." That ' s t h e way i t w a s then.

Sharp: Did ydu wa i t u n t i l t h e t r i a l was a l l over t o s t a r t working wi th this--

Z i rpo l i : Oh, yes . Jennings w a s h i s name, the w r i t e r .

Habeas Corpus Questions and Alcatraz I s land Pr ison

Sharp: I would l i k e t o go on a l i t t l e more, i f you have t i m e , and ask you about t h e habeas corpus cases and Alcatraz . Some of t h e quest ions I , have a r e from t h e paper t h a t you gave, t h e remarks t h a t you made on t h e s ix th .* Some a r e from t h e book w r i t t e n by Warden [James] Johnston about h i s experiences i n Alcatraz.** There was a t e r r i f i c numbe~ of habeas corpus p e t i t i o n s f i l e d .

*See foo tno te on p. 27.

**See Alcatraz I s l and Pr i son and t he Eien Who Lived There, by Warden James A. Johnston, New York: Charles Scr ibner ' s Sons, 1949.

Zi rpo l i :

Sharp :

Zirpol i :

Sharp:

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Yes, Warden Johnston c a r r i e s a number i n excess of f i f t e e n hundred, but I s a i d approximately s ix t een hundred because t h e r e were o the r cases s i n c e t h e wr i t i ng of t h a t book, a number of cases .

But a t l e a s t i n Johnston's per iod a very small number of hearings were granted, something l i k e f i f t y o r fifty-two.

When you g ran t f i f t y hear ings , those were a l o t of hearings. You have t o remember t h a t some of those pr i soners f i l e d a s many a s f i f t y p e t i t i o n s .

I was amazed t o read what you s a i d and what Johnston himself s a i d , t h a t he thought i t was therapeut ic for--

~ o h n s t o n , t h a t was h i s theory. A s f a r a s Johnston was concerned, he d i d n ' t want them t o spend t h e i r time f i g u r i n g ou t ways t o escape, so he encouraged i t .

It s t r i k e s me t h a t t h a t could have been a r e a l d i s a s t e r i n terms of t he d i s t r i c t cour t .

Well, i t was. It crea ted q u i t e a problem. That 's what forced me t o innovate a s t o t h e method by which t o handle these cases , bu t those fel lows [pr i soners ] wrote p r e t t y good p e t i t i o n s , f a r b e t t e r than what you ge t ou t of t h e pr i sons today i n t h e f i n a l ana lys i s .

Of course, we had one of those fe l lows , Verhuel, who was a w r i t w r i t e r . He helped q u i t e a b i t , but Verhuel, I don ' t th ink he was ever successfu l . I don' t r e c a l l any i n which he himself was success- f u l and I ta lked t o him about i t a t one time. He did t e l l me t h a t h e brought about t h e r e l e a s e of a pr i soner once. It was when he wasn't i n j a i l and h e was on t h e ou t s ide . He had some cards p r in t ed "attorney-at-law" and then showed up i n pr i son wi th these cards. In t h e meantime, t h e man he was t o s e e had requested t h a t he t a l k t o h i s a t t o rney and h e named Verhuel o r whatever name he was carry- ing a s h i s a t t o rney . The a t to rney showed up wi th h i s card a t t he appointed time having been granted an appointment t o t a l k t o t he c l i e n t . He went i n t o t h e pr i son and then took a gun out of h i s b r i e f case and when t h e guard came i n wi th the pr i soner , he marched everybody out of j a i l . But they d idn ' t ge t very f a r . [ l augh te r ]

Le t ' s t a l k j u s t a b i t about t h e procedure of f i l i n g a w r i t i n those days. How did you begin t h e process of f i l i n g a w r i t ?

The pr i soner would prepare a p e t i t i o n f o r w r i t of habeas corpus and he would f i l e i t with t h e c l e rk . I f he was ind igent , h e would execute a pauper's oa th wi th i t . The c l e rk would then f i l e i t and t h e cour t would d i r e c t t h e issuance of an order t o show cause. Unless i t was t o t a l l y f r i vo lous on i t s face , he ordered a show cause.

Z i r p o l i : The o r d e r t o show cause would b e i s s u e d and would b e s e r v e d on t h e United S t a t e s a t t o r n e y .

The United S t a t e s a t t o r n e y would then have t o respond t o t h e o r d e r t o show cause by moving f o r a d i s m i s s a l o r f i l i n g a r e t u r n i n which h e would i n d i c a t e t h e reasons f o r t h e d e t e n t i o n , o r set f o r t h t h a t t h e r e w a s no v i o l a t i o n o f t h e r i g h t o f a s s i s t a n c e o f counse l , o r whatever t h e c l a i m happened t o be . The c o u r t would then review them.

For t h o s e t h a t had m e r i t , t h e judge would i s s u e t h e w r i t and d i r e c t t h e p roduc t ion o f t h e body of t h e p r i s o n e r i n c o u r t . That meant we had t o b r i n g t h e s e f e l l o w s i n c o u r t and we d i d n ' t r e l i s h t h e i d e a of b r i n g i n g t h e s e guys over h e r e [ t o San Franc i sco] under guard as o f t e n as i t would have been necessary . So when we had f o r t y of t h e s e c a s e s pending--approximately f o r t y , I d o n ' t r emem- b e r t h e e x a c t number--we t h e n evolved t h e i d e a o f do ing what they d i d i n t h e o l d d e p o r t a t i o n Chinese immigration c a s e s .

I t a l k e d t o Jack S h i r t z e r who was t h e c l e r k f o r Judge S t . Sure , who had been' around f o r n e a r l y f i f t y years . H e t o l d m e what they used t o do a t t h e t u r n of t h e cen tury .

So I worked up a program whereby we would name t h e United S t a t e s commissioner as a master t o h e a r t h e c a s e o f t h e p r i s o n e r a t t h e p r i s o n . H e would h e a r t h e test imony a t t h e p r i s o n and would r e p o r t t o t h e judge f o r d i s p o s i t i o n . That made i t f i n e . W e d i d n ' t have t o b r i n g t h e p r i s o n e r s over . W e on ly had one person t o go o v e r , t h e commissioner.

So I s e n t t h e p l a n t o t h e [U.S.] a t t o r n e y g e n e r a l [Homer S. Cummings]. H e s e n t m e back a w i r e a f f i r m i n g i t . A f t e r we were reversed by t h e [U.S.] Supreme Court , I go t an i n v i t a t i o n t o go t o Washington [D.C.] though I w a s on ly a n a s s i s t a n t , t o a t t e n d a conference o f United S t a t e s a t t o r n e y s . I c o u l d n ' t unders tand why they wanted m e t h e r e . But I brought a long a l l o f t h i s s t u f f on habeas corpus . When I got t o t h e Department o f J u s t i c e b u i l d i n g they s a i d , "You are wanted i n t h e s o l i c i t o r g e n e r a l ' s o f f i c e . I went up t o S o l i c i t o r General Char les Fahy, I came through t h e door , and Fahy s a i d , "Where i n h e l l d i d you g e t t h a t habeas corpus idea?" I reached i n my pocket and p u l l e d o u t my te legram a@ showed it t o M r . Fahy and t h a t ended o u r meeting! [ l a u g h t e r ]

il il

Sharp: Were t h e 2255 p e t i t i o n s handled t h e same way?

Z i r p o l i : The 2255 were handled t h e same way up u n t i l t h e amendment o f t h e code. Then you had t o f i l e your 2255 i n t h e c o u r t i n which you were convic ted and t h a t ' s why [Robert "Birdman"] S t roud had f i l e d

Zi rpo l i : a habeas corpus and then h e f i l e d a 2255. I th ink the l a s t one he f i l e d was back i n 1960. He was s t i l l making an argument of double jeopardy. He had a poss ib le b a s i s f o r h i s argument because he was t r i e d once and then twice. The second time t h e s o l i c i t o r general went i n and confessed e r r o r . So h e s a i d , "You can ' t t r y me a t h i r d time." But they d id and t h e [U.S.] Supreme Court sus t a ined i t .

Sharp: You t a l k about t h i s innovat ion of using t h e U.S. commissioner a s a master. I wonder i f t h a t was t h e ex t en t of t h e changes i n t h e Northern D i s t r i c t Court i n t h i s e a r l y period of t h i s huge inc rease i n t h e nunber of habeas corpus and 2255 p e t i t i o n s ?

Z i rpo l i : Most of them you could handle e a s i l y enough because a g rea t many of them--most of them--did not have mer i t . Many were r epea t p e t i t i o n s t h a t had a l ready been passed on. F ina l ly , some cour t s got t o t h e poin t where i f somebody f i l e d a s many a s those fel lows f i l e d a t Alca t raz , they would i s s u e a d i r e c t i o n t o t h e c l e r k of t h e cour t not t o permit f u r t h e r f i l i n g . Also, we got t o t h e poin t of eventua l ly us ing prepared forms f o r t hese fel lows s o t h a t they would have t o comply. The form was one i n which you had t o l is t all of your poss ib le grounds and exhaust them a l l , so you couldn ' t t r y one one time and another another time.

Sharp: I wondered i f t h a t c rea ted add i t i ona l bureaucracy, add i t i ona l forms.

Z i rpo l i : No, t h e law c l e r k s handled i t . When t h e number got g rea t because of t h e s t a t e f i l i n g s , and we reached over s i x hundred a year , and we had more than any o the r d i s t r i c t i n t h e country, then we had permission f o r t h e c r e a t i o n of a s p e c i a l law c l e r k known a s a w r i t c l e r k .

This w r i t c l e r k has a l l of t h e cases presented t o him. They a l l come t o him and he screens them and prepares a shee t a s t o what he thinks is an adequate d i spos i t i on . That then goes t o t h e law c l e r k of t he judge, t h e law c l e r k reviews i t , and i f he agrees, you can prepare an order .

I n most cases you can dismiss because i t ' s f r ivo lous , o r t he re i s no b a s i s , o r no c o n s t i t u t i o n a l quest ion. They may r a i s e a l o t of quest ions t h a t a r e not c a n s t i t u t i o n a l i n na ture and s o you can dismiss those without any problem.

One of t h e fel lows t r i e d to escape when he got here , too! [laughs ]

Sharp : You mentioned the four cases .

Z i rpo l i : There should r e a l l y only be th ree because I would exclude P r i ce .

Sharp: Okay, but t h e Waley [v. Johnston, 311 U.S. 649 (1940)], t he Walker [v. Johnston, 312 U.S. 275 (1940)], and t h e Holiday v. Johnston [313 U.S. 342 (194O)l--

Zirpol i : Yes.

Sharp: I need you t o t e l l m e about those and why they w e r e no tab le .

Z i rpo l i : They r a i s e d t h e ques t ion of a s s i s t a n c e of counsel and t h e d i s t r i c t cour t d i d n ' t g ive them a hear ing on i t . The cou r t of appea ls sus ta ined t h e d i s t r i c t cou r t and t h e Supreme Court reversed i t . Holiday, of course, was t h e one t h a t had t o do wi th t h i s new procedure t h a t we had innovated whereby t h e p r i sone r s were brought before t h e U.S. Commissioner f o r hear ing. The [U.S.] Supreme Court s a i d no, "You've got t o b r ing t h e body of t h e p a r t y be fo re t h e cour t t h a t i s sued t h e w r i t , you c a n ' t do i t otherwise."

That became a somewhat important p r i n c i p l e and t h a t i s r e f l e c t e d even t o t h i s day i n t h e r u l i n g of t h e [U.S.] Supreme Court dec l a r ing uncons t i t u t i ona l t h e s t a t u t e which gives t h e bank- rup tcy judge t h e powers of an A r t i c l e 111 judge when he is not an A r t i c l e I11 judge; t he re fo re , he cannot make a d e f i n i t i v e r u l i n g nor a c t u a l l y t r y a case. Under t h e bankruptcy law a s amended, w e were giving a l l of these powers t o t he bankruptcy judge and t h e Supreme Court s a i d no, you c a n ' t do i t , t h e commissioner was no t a judge.

Sharp: I thought I had seen t h a t connection, b u t I am glad t h a t you made i t r e a l l y c l e a r .

The l a s t ques t ion i s s o r t of a h h d s i g h t one, b u t I wondered genera l ly what your perspec t ive was on the expansion of t h e u se of habeas corpus by p r i sone r s , e s p e c i a l l y now having been a f e d e r a l judge and having been on t h e rece iv ing end of t h i s mul t i tude of cases .

Z i rpo l i : The habeas corpus i s abused, no ques t ion about t h a t , bu t t h e r e i s n ' t anything you can do about i t . This i s something t h a t i s provided f o r i n t h e c o n s t i t u t i o n and i f t h e c o n s t i t u t i o n has any meaning, t h a t ' s why i t has t o be preserved. We have had committees of t h e J u d i c i a l Conference of t h e United S t a t e s working on i t , to f i n d procedures which w i l l minimize t h e work and t h e r e s p o n s i b i l i t y of t h e judge.

There is a conunittee headed by Judge [Ruggero J . ] A l d i s e r t of t h e Third C i r c u i t which has prepared some s p e c i f i c r u l e s f o r habeas corpus and 2255 proceedings, and a l s o f o r p r i sone r r i g h t s proceedings so t h a t we ended up by preparing a s p e c i a l form. The p r i sone r has t o go through the form and h e s e t s f o r t h t h a t he has exhausted a l l of h i s s t a t e remedies, and s e t s f o r t h a l l grounds l i s t e d on t h e

Zirpol i : form t h a t can possibly apply. He a l s o has t o e s t a b l i s h t h a t he has exhausted h i s s t a t e remedies, otherwise, t h e cour t w i l l not en ter - t a i n j u r i s d i c t i o n .

So you a r e a b l e t o throw so many of them out f o r l a c k of exhaustion of s t a t e j u r i s d i c t i o n and t h a t takes c a r e of them immediately. O r , somebody w i l l make a claim t h a t obviously i s f r ivo lous and you throw i t ou t . Some people have w r i t t e n time and time aga in l i k e a fel low named Harper now who must have f i l e d t e n o r f i f t e e n s t a t e pr i soner p e t i t i o n s . Sometimes you give him l eave t o amend, and i f h e c a n ' t make a meaningful amendment, then you deny i t ou t r igh t .

Further Notes on Judge Louderback: The Herbert Fleishhacker Embezzlement T r i a l

Sharp: I thought we would s t a r t j u s t wi th a few notes on Fleishhacker. You had t o l d me the re was a t r i a l f o r embezzlement and a c q u i t t a l i n 1938. That was Herbert?

Zi rpol i : That was Herbert Fleishhacker, yes. He was pres ident and chairman of t h e board. The bank was i n g rea t d i f f i c u l t y . That was t h e Anglo Bank.

Sharp: The Anglo-California National Bank.

Zi rpol i : It was i n g rea t d i f f i c u l t y and they had t o ge t some he lp from the government.

Sharp: That was t h e $22 mil l ion t h a t t h e Reconstruction Finance Corpora- t ion--

. r po l i : Yes. In add i t i on , they got some a s s i s t ance , a s I r e c a l l i t , from Standard O i l . They named a new pres ident , whose name I don' t r e c a l l a t t h e moment. When t h e inves t iga t ion turned t o Herbert Fleishhacker, i t revolved around a r epo r t t h a t I had received from t h e FBI which ind ica ted malfeasance on t h e p a r t of Herbert Fleishhacker i n a number of s i t u a t i o n s . The s t a t u t e of l i m i t a t i o n s had run on most of them.

However, t he re was one in s t ance wherein t h e s t a t u t e of l imi t a - t i o n had not run and t h a t r e l a t e d t o some s tock t h a t he owned i n a shipping company t h a t owned some property i n China, and he had pledged t h i s s tock wi th t h e bank. He proceeded to s e l l t he s tock , which had been pledged t o t h e bank, and received checks. I th ink

Z i r p o l i : t h e r e were e leven checks o f , I t h i n k , $5000 each--I a m n o t p o s i t i v e o f t h e figure--which h e r e c e i v e d , endorsed, and cashed. So we charged him i n a n ind ic tment w i t h s e p a r a t e coun ts f o r each check. H e was r e p r e s e n t e d by Theodore Roche and a n o t h e r lawyer who became a judge i n San Mateo County. I c a n ' t t h i n k o f h i s n a m e a t t h i s v e r y moment, a very f i n e lawyer.

Because o f t h e importance o f t h e c a s e , Frank [ J . ] Hennessy o f t h e United S t a t e s a t t o r n e y ' s o f f i c e decided t o s i t i n t h e t r i a l w i t h m e s o t h a t I wouldn ' t have t o s h o u l d e r t h e f u l l r e s p o n s i b i l i t y , a l though I t r i e d t h e c a s e and t h i s was my ass ignment , bank embezzlement.

F le i shhacker was a g r e a t b e n e f a c t o r o f t h e c i t y and county o f San Francisco. H e gave them a l l t h e l a n d where they have t h e zoo, F l e i s h h a c k e r Zoo and t h e F le i shhacker Pool, a l though h e a l s o owned a d j o i n i n g l a n d s which acqu i red g r e a t e r v a l u e as a r e s u l t o f t h a t . So t h e r e was t h e problem of p r o s e c u t i n g a well-known f i g u r e i n t h e community and a community b e n e f a c t o r . The j u r y a c q u i t t e d him. W e t r i e d t o b e f a i r . There were t h i n g s t h a t w e could have brought i n t o t h e t r i a l which would have been p r e j u d i c i a l , b u t they wouldn' t have been f a i r , s o we d i d n ' t .

I remember when t h e j u r y went o u t i n t h e a f t e r n o o n , they d e l i b e r a t e d and t h e n they went t o d i n n e r . Theodore Roche was t e r r i b l y worr ied t h a t i f t h e r e was c o n v i c t i o n what would happen t o Mr. Fle i shhacker . I f h e wasn ' t e i g h t y , h e was p r e t t y c l o s e t o e i g h t y i n y e a r s ; h e was i n h i s l a t e s e v e n t i e s a t least. I t r i e d t o e x p l a i n t o F l e i s h h a c k e r ' s a t t o r n e y t h e procedure , and t h a t f o r purposes o f a p p e a l , h e could remain f r e e on h i s b a i l .

The j u r y went o u t t o d i n n e r a t s i x o ' c l o c k . The judge d i d n ' t go o u t t o d i n n e r u n t i l a t least s e v e n - t h i r t y and h e went t o t h e Bohemian Club. It was Judge Louderback. The j u r y came back w i t h a n o t e around e i g h t o ' c l o c k say ing , "May w e conv ic t him on some counts and a c q u i t him on o t h e r s ? " But, t h e judge d i d n o t come back from d i n n e r u n t i l n i n e o ' c l o c k . By t h a t t i m e t h e j u r y had decided t o a c q u i t him on a l l coun ts . When they came i n w i t h t h e v e r d i c t , i t was a v e r d i c t o f n o t g u i l t y . A t t h e t i m e , I w a s d i sappo in ted because t h i s w a s a b i g c a s e and I would have l i k e d t o have won t h e case . But wi th t h e passage o f t i m e , a l l f a c t o r s cons idered , I now d o n ' t r e g r e t t h e f a c t t h a t I l o s t .

Sharp: What was t h a t b i t o f evidence t h a t you could have brought i n , bu t you d i d n ' t ?

Z i r p o l i : H e used a check, f o r i n s t a n c e , on one occas ion f o r $700 o r $800 ( I t h i n k i t w a s $ 8 0 0 ) t h a t h e had made payable t o a lawyer. He then endorsed i t and had h i s s e c r e t a r y go down and cash i t . He bought

Zi rpo l i : s eve ra l copies of t h e book on t h e f i r s t hundred days of t h e Frankl in Delano Roosevelt adminis t ra t ion .

Sharp: So in t roducing t h i s would have strengthened--

Zi rpol i : It was a n ind ica t ion t h a t h e was disposed t o do t h i s , bu t I thought t h a t t h a t would be u n f a i r , so we d idn ' t do i t .

Sharp: Did t h i s p a r t i c u l a r case g ive you any more i n s i g h t i n t o Judge Louderback?

Z i rpo l i : Oh, he t r i e d i t wel l . I have no qua r re l with t h e way t h e judge handled t h e case. The only qua r re l I had was had he been back from dinner on time, i t might have been a d i f f e r e n t s t o r y . No, by t h i s time t h e impeachment proceedings were long p a s t and I have had no qua r re l wi th h i s conduct a s a t r i a l judge except t h a t h e was a s t r i c t d i s c i p l i n a r i a n . You had t o b e ca re fu l about approaching t h e w i t - ness box and how you handled e x h i b i t s and th ings of t h a t cha rac t e r .

The Northern D i s t r i c t During World War I1

The Alien Enemy Control Board

Sharp: I would l i k e t o move i n t o t a l k i n g about t h e Alien Enemy Control Board.* A s s o r t of an in t roductory quest ion, I wondered i f you had been involved i n any work i n t h e U.S. a t t o rney ' s o f f i c e with respec t t o t h e a l i e n s before t h e Alien Enemy Control Board.

Zi rpol i : Oh, yes , i n a small sense even before Pear l Harbor. I was involved i n t h a t I knew and was aware of t h e f a c t t h a t t h e FBI was pre- par ing l i s t s of poss ib l e enemy a l i e n s i n t h e event we were to f i n d

*Thus f a r , not too much i s known about t h e work of t h e Alien Enemy Control Board. In t e re s t ed readers may see Personal J u s t i c e Denied, t h e r e p o r t of The Commission on Wartime Relocation and Internment of C iv i l i ans (Washington, D.C . , 1982), pp. 285, 309 e spec i a l ly ; and, John Chris tgau 's a r t i c l e , "Coll ins v. t h e World: Wayne Col l ins , Sr . , and t h e Tadayasu Abo Case," i n The Hi s to r i ca l Reporter, vo l . 3, no. 1, Summer 1983, pp. 2-13.

Z i r p o l i : o u r s e l v e s i n a war. So they had a l r e a d y prepared l is ts of members of t h e German Bund, t h e I tal ian-American v e t e r a n s o f World War I , and c e r t a i n Japanese s o c i e t i e s . I n p a r t i c u l a r t h e one I r e c a l l , as I used t o c a l l i t , w a s Hokobei, a l though I d o n ' t s e e t h a t name i n any of t h e c o u r t o p i n i o n s (not t h a t t h e r e would b e any p a r t i c u l a r r eason t o have t h e i r names i n t h e r e ) . But t h e s e were s o c i e t i e s which were t r u l y Japanese i n n a t u r e w i t h c l e a r a l l e g i a n c e t o t h e emperor.

So t h e s e l is ts were prepared by t h e FBI and we picked them up t h e day of and t h e day fo l lowing P e a r l Harbor.

Sharp: Did t h a t set i n t o motion q u i t e a few a c t i v i t i e s w i t h i n t h e U.S. a t t o r n e y ' s o f f i c e ?

Z i r p o l i : It s e t i n motion t h e a c t i v i t i e s i n t h e s e n s e t h a t t h e s e arrests had t o b e on a so-ca l l ed p r e s i d e n t i a l w a r r a n t which I w a s a u t h o r i z e d t o i s s u e and t o seek approva l o f t h e p r e s i d e n t . What I would do was p r e p a r e a l i s t o f t h e people who were apprehended and i n d i c a t e t h e reason t h e r e f o r . So t h e l ist would be--the fo l lowing were members of t h e German Bund, t h e fo l lowing a l i e n s , and they were picked up; o r t h e fo l lowing I t a l i a n s were v e t e r a n s o f World War I, they were picked up because having once fought f o r I t a l y , they might be d i s - posed t o do something aga in ; and t h e s e fo l lowing were members of t h e Hokobei S o c i e t y .

I d o n ' t r e c a l l t h e exac t number t h a t w e p icked up. I t h i n k w i t h i n t h e f i r s t two days, we must have picked up a thousand t o f i f t e e n hundred people and they took them a l l down t o Sharp Park.

Sharp: They had made some arrangements f o r them t o b e k e p t a t Sharp Park?

Z i r p o l i : It was t h e immigration c e n t e r and they had t h e f a c i l i t i e s .

Sharp : I wasn ' t a t a l l c l e a r , and I t o l d you t h i s i n my l e t t e r , about t h e d a t e s t h a t t h e board was o p e r a t i n g . I wasn ' t r e a l l y s u r e when i t s t a r t e d and when i t f i n i s h e d i ts work. Do you r e c a l l ?

Z i r p o l i : I c a n ' t g i v e you t h e e x a c t d a t e , b u t t h e board was c r e a t e d f o r t h e purpose of h e a r i n g c a s e s a g a i n s t enemy a l i e n s , s o t o speak. For i n s t a n c e , a l l o f t h o s e who were picked up were given h e a r i n g s b e f o r e t h e board.

Sharp: So some t ime a f t e r P e a r l Harbor t h e board would have g o t t e n going?

Z i r p o l i : Tha t ' s r i g h t and we had on t h e board [Judge Edwin J . ] Owens of Santa Cla ra . I have f o r g o t t e n t h e name of t h e p r o f e s s o r from Stanford , b u t you have i t .

Sharp: Tha t ' s [Thomas S . ] Barclay.

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zirpol i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Zirpol i :

Barclay of Stanford; he ' s s t i l l a l i v e . Then we had a l o c a l con t r ac to r .

That was t h e c i t i z e n member?

Yes, bu t i t was t h e name you--you have t h e name Harrison t h a t I don' t r e c a l l .

You don ' t? I had an i n t e r e s t i n g n o t e about him. That is Leland Harrison and h e w a s a San Francisco a t to rney who was apparent ly from t h e Phleger firm--

Yes, Maurice Harrison.

I have Leland. I wonder why.

We a l s o had a man from t h e L i l l i c h firm, I r a L i l l i c h , bu t I r a L i l l i c h resigned s h o r t l y a f t e r he was appointed. I don ' t th ink t h a t h e had any sympathy wi th t h e program.

Do you mean h e opposed t h e program?

He opposed t h e program and i ts method of operation--with some poss ib le j u s t i f i c a t i o n .

But you don' t remember t h i s M r . Harr ison a t a l l ?

There i s Gregory and Maurice Harrison, t h e only two I know.

A l l r i g h t . Back t o t h e da t e s , d id t h e board then end i ts operat ions a f t e r t h e internment, t h e general internment began?

No, some of i t continued because I remember we even went down t o New Mexico t o conduct t h e hearings f o r t h e Japanese, some two hundred hear ings i n New Mexico near Santa Fe.

So i t would have gone on probably -through May o r even i n t o t h e summer?

Approximately, yes .

Could you j u s t s e t o u t t h e main i s sues t h a t t h e board had t o dea l wi th then?

The purpose of t h e board was, of course, to examine the ind iv idua l involved and a s c e r t a i n h i s l o y a l t y and whether t h e ind iv idua l was a s e c u r i t y r i s k . Now, i f an I t a l i a n was known t o have a F a s c i s t uniform o r a B a l l i l a uniform (which was f o r t h e young F a s c i s t group), then we would f e e l t h a t h e had some sympathy. For i n s t ance ,

Z i r p o l i : i f one of them was a r r e s t e d , and they found t h e uniform i n h i s home, h e would have a p r e t t y tough t ime convincing t h e board t h a t h e would no t c o n s t i t u t e a n a t i o n a l s e c u r i t y r i s k . I f we had someone e l s e who made F a s c i s t speeches and was known a t r a l l i e s t o r a i s e h i s hand i n s a l u t e t o t h e I1 Duce, we had a p r e t t y good i d e a t h a t h e would be o f q u e s t i o n a b l e l o y a l t y .

These q u e s t i o n s a l s o a r o s e la ter w i t h c i t i z e n s because c e r t a i n American c i t i z e n s of I t a l i a n o r i g i n were a l s o excluded from t h e a r e a . They were n o t i n t e r n e d , t h a t ' s t r u e , b u t they were excluded. Your background and your h i s t o r y determined whether you shou ld o r should n o t be excluded.

There was a r e f e r e n c e i n one o f t h e b r i e f s o f M r . P u r c e l l t o a prominent San Franc i scan who was excluded, and t h a t was S y l v e s t e r Andriano,who had been a member o f t h e [San Franc i sco] Board o f Superv i sors , p r e s i d e n t o f t h e P o l i c e Commission. H e was a ve ry a c t i v e church man, b u t h e happened, u n f o r t u n a t e l y , t o a l s o be t h e a t t o r n e y f o r t h e consul g e n e r a l o f I t a l y , which was a good r e l a t i o n - s h i p from t h e p o i n t of view of a n a t t o r n e y because i t brought him a tremendous amount o f b u s i n e s s , p a r t i c u l a r l y p roba te b u s i n e s s (peop le who d ied h e r e and had r e l a t i v e s o r h e i r s abroad) . H e was a l s o p r e s i d e n t o f t h e I t a l i a n school . He w a s a l s o p r e s i d e n t o f t h e I tal ian-American Chamber of Commerce. The s a d p a r t about t h a t i s t h a t t h e reason h e was e l e c t e d p r e s i d e n t o f t h e I tal ian-American Chamber o f Commerce is because we d i d n ' t t r u s t t h e cand ida te who was opposing him whom we f e l t was a F a s c i s t . Now, as I s a y , Adriano d i d n o t t r y t o t e s t t h e c o n s t i t u t i o n a l i t y o f t h e o r d e r .

Sharp : He l e f t , y e s .

How l o n g would t h e h e a r i n g s t a k e f o r , s a y , one person?

Z i r p o l i : Oh, I would s a y , depending upon t h e p a r t i e s invo lved , normally they wouldn' t t a k e more t h a n s a y twenty minutes t o h a l f a n hour . What would happen is, as t h e U.S. a t t o r n e y , I would p r e s e n t t h e c a s e t o t h e board, which c o n s i s t e d o f having t h e FBI read and g i v e us a l l o f t h e evidence i t had (much of which was undoubtedly h e a r s a y ) , b u t we weren ' t going by t h e u s u a l r u l e s of evidence t h a t app ly i n a c o u r t o f law.

Based upon t h e r e p o r t o f t h e FBI and o u r i n t e r r o g a t i o n of t h e a l i e n involved, we would make--not I, b u t board--would make a d e t e r - minat ion.

The on ly c o n t r o l over t h e a g e n t t h a t I suppose e x i s t e d was e x e r c i s e d by me. I f h e g o t t o o f a r a f i e l d o r i f t h e agen t o f f e r e d a n op in ion , I would c a l l him on i t and t e l l him h e had no b u s i n e s s o f f e r i n g a n op in ion , t h a t a l l h e was t h e r e t o do was t o g i v e us t h e

Z i r p o l i : f a c t s , and t h a t t h e d e c i s i o n as t o whether t h e person was l o y a l o r d i s l o y a l was up t o t h e board, n o t t o t h e a g e n t .

I remember I g o t i n t o a l i t t l e squabble w i t h one agent who was t r y i n g t o o f f e r a n op in ion .

Sharp: There was some mention t h a t some of t h e a g e n t s were a l i t t l e over- zea lous .

Z i r p o l i : T h a t ' s r i g h t , and when t h a t happened, I would t e l l t h e agen t (we'd have a c o u r t r e p o r t e r ) , I ' d s a y , "Let ' s p u t your comment on t h e record." "If you f e e l t h i s way about i t , le t ' s p u t i t on t h e record , " and they would back o f f . So, as I s a y , t h e s e were problems we had.

Now, f o r i n s t a n c e , we had one f e l l o w t h a t worked f o r t h e Bank o f America who was a d e f i n i t e F a s c i s t . He used t o wear t h e F a s c i s t emblem and e v e r y t h i n g else. Of course , h e c l e a r l y was a s e c u r i t y r i s k , a l though h e was w e l l a long i n y e a r s , because h e was such a r a b i d F a s c i s t . There wasn ' t any doubt as t o where h i s sympathies l a y . So we were confirmed i n o u r op in ion as t o him because even a f t e r h e was r e l e a s e d from Missoula [Montana], h e s t i l l i n d i c a t e d h i s a l l e g i a n c e t o I1 Duce.

Sharp: A real s t a l w a r t s o r t o f f i g u r e .

I had a l s o seen a n o t e t h a t t h e O f f i c e o f Naval I n t e l l i g e n c e also--

Z i r p o l i : A l l of t h e i n t e l l i g e n c e o f f i c e s r e p o r t e d t o m e ; t h a t is, t h e army i n t e l l i g e n c e , t h e navy i n t e l l i g e n c e , and t h e i r r e p o r t s , I found, were exaggerated f o r t h e most p a r t .

Sharp: More s o than some of t h e FBI?

Z i r p o l i : Oh, d e f i n i t e l y . The FBI r e p o r t s were f a r more o b j e c t i v e than t h e navy r e p o r t s . The navy would l e a r n about a name and i f i t happened t o b e t h e name of a Japanese admira l , they would conclude t h a t t h e r e was a blood r e l a t i o n s h i p between him [and t h e admira:L]. Some of t h o s e Japanese names are l i k e Smith. J u s t because Smith was a n admiral o f t h e American navy, f o r i n s t a n c e , d i d n ' t mean t h a t a n o t h e r Smith was h i s nephew o r h i s son , and I found r e p o r t s o f t h a t c h a r a c t e r .

Other problems which we had, o f course , were problems which a r o s e pursuant t o t h e requirement t h a t a l l enemy a l i e n s t u r n i n t h e i r f i r e arms, s i g n a l i n g d e v i c e s , and e x p l o s i v e s of any k ind o r c h a r a c t e r . So we had cases where some farmer w a s p icked up who happened t o b e a German a l i e n and h e had dynamite t h a t h e used t o

Zi rpo l i : blow up t r e e stumps on h i s ranch. W e would r e l e a s e t he se fel lows. We would g ive them a hear ing and w e would r e l e a s e them. This caused t h e d i sp l ea su re of General [John] D e W i t t , who then repor ted t o t h e s ec re t a ry of defense, who even went s o f a r a s t o r epo r t i t t o [Pres ident ] Roosevelt because I got back an FBI r e p o r t ask ing f o r an explanat ion.

When they got overzealous and a fe l low had an ordinary s ea rch light--everybody has--it would be considered a s igna l ing device.

The arms were a l l turned i n t o t h e marshal. He c o l l e c t e d hundreds and thousands of arms from Japanese, Germans, and I t a l i a n s . One of t he se was a Japanese gun s t o r e t h a t caused tremendous s c a r e headl ines because they repor ted t h e number of guns s e i zed and t h e amount of ammunition s e i zed . The next day they se ized another gun and another twenty rounds of ammunition and t h e r e would be t h e same headl ine, j u s t having t h e f i g u r e augmented by another gun o r another twenty rounds of ammunition.

This was t h e type of h y s t e r i a t h a t p reva i led . Of course, t h e r e was tremendous f e a r f o r t h e personal s a f e t y of t h e Japanese them- se lves . The way people f e l t , you would never know what t h e i r r eac t ions might be.

Sharp: Did you and some o f t h e o t h e r a s s i s t a n t U.S. a t t o rneys who were working on these cases on t h e board, s e e yourselves a s s o r t of a moderating in f luence , I mean t r y i n g t o s o r t out--

Z i rpo l i : Oh, i n a small way t h a t ' s t r u e . A moderating in f luence i n t h e sense t h a t I guess I had a b e t t e r recogni t ion of c e r t a i n of t h e p r a c t i c a l problems involved.

I may have t o l d you a l ready about my d iscuss ions wi th D e W i t t , and members of h i s s t a f f more than DeWitt, a s i t r e l a t e d t o t h e opera t ion of t h e F [ s t r e e t l c a r i n San Francisco. This was t h e c a r t h a t had i t s o r i g i n i n t h e Marina and i t would take you downtown. It passed along Beach S t r e e t and General DeWitt wanted t h e south s i d e of Beach S t r e e t a s t h e po in t o f exclusion. I s a i d , "It should be t h e nor th s i d e . These people have no o t h e r p r a c t i c a l means of g e t t i n g downtown. They t ake t h a t s t r e e t c a r every morning."

Well, I f i n a l l y won ou t . The moderation was t h a t merely because a fe l low happened t o have a gun o r merely because h e happened t o have some dynamite, i t doesn ' t neces sa r i l y mean t h a t he should be in te rned even though h e was an enemy a l i e n . So t o t h a t degree t h e r e was moderation.

As U.S. a t t o rney , you could r e l e a s e some of these people without t h e neces s i t y of a formal hear ing, too. I n o t h e r words, I would r e fuse t o prosecute .

J u s t because the re wasn't enough evidence? Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

--Dynamite, they would blow up t r e e stumps, which t h e FBI r epor t would c o r r e c t l y r e f l e c t . I wasn't going t o i n t e r n him and r equ i r e him t o go through a hearing. We had enough hearings a s i t was.

La ter on, by mid-December o r s o , supposedly General DeWitt became very, very d i s s a t i s f i e d wi th t h e Department of J u s t i c e i n general , t h a t you j u s t weren't doing your job, t h a t you weren ' t prosecut ing enough a l i e n s and you weren't i n t e rn ing a s many a s you should.

I don ' t know how d i s s a t i s f i e d he was.

I know h e was d i s s a t i s f i e d , f o r i n s t ance , wi th r e l a t i o n t o curfew and hours of "black out1' (no l i g h t s v i s i b l e from t h e ou t s ide ) because t h e Marin Shipyard was opera t ing twenty-four hours around t h e clock and w e weren't going t o prosecute Marin Ship. He i n s i s t e d on i t and so we d id f i l e a complaint with t h e commissioner. Then Washington s e n t word t o General DeWitt d i r e c t l y , not through our o f f i c e , and General DeWitt then asked us t o dismiss t h e case. I s a i d I would do i t when I got a request t he re fo r under h i s s igna ture . Since h e had gone t h a t f a r , I wanted i t i n w r i t i n g from him and I got i t and we dismissed.

We mentioned j u s t a few minutes ago Thomas Barclay and Ed Owens. They were on t h e board and I wondered how you might have i n t e r a c t e d with them o t h e r than present ing t h e case.

My i n t e r a c t i o n with them was t h e p re sen ta t ion of t h e case. Beyond t h a t i t became s o c i a l . For ins tance , when we were down i n Santa Fe i n New Mexico and we a l l had dinner toge ther , b reak fas t toge ther , lunch together , th ings of t h a t charac te r . We became very f r i end ly . They were very f i n e gentlemen, both of them. He is a very f i n e professor , Barclay, a t Stanford. Owens was a t [ t h e Universi ty o f ] Santa Clara and then h e was dean of t h e i r law school and became a supe r io r cour t judge. These were a l l highly respected men--Ira L i l l i c h was a l eade r i n t h e bar here . Maurice Harrison, he was a l eade r i n t h e bar and he was a l s o a l eade r i n t h e Democratic pa r ty .

How might these men have been appointed to t h e board? How would t h a t have come about? Do you have any idea?

I don' t r e c a l l . I th ink they were appointed by t h e pres ident . Someone would des igna te them, but I don' t r e c a l l .

And Thomas C . Clark?

Tom Clark happened t o b e i n Ca l i fo rn i a a s head of the a n t i t r u s t d iv i s ion on December t h e seventh o r e ighth . I n f a c t , w e were engaged i n a ju ry t r i a l . I was with Tom Clark because h e had had no t r i a l

Zirpol i : jury experience. I had been asked t o e n t e r i n t o t h e case and I d i d . We were t o argue t h e case on Monday morning. Pear l Harbor was Sunday and we argued i t Monday morning and r a i s e d t h e f l a g b e t t e r than t h e defendants d id . We had g r e a t e r opportuni ty t o do i t and we got convict ions.

So Tom Clark received i n s t r u c t i o n s t o serve a s t h e l i a i s o n man wi th t h e Department of J u s t i c e and t h e m i l i t a r y f o r purposes of na t iona l s ecu r i ty .

I r e c a l l when they ordered t h e Germans and t h e I t a l i a n s t o move ou t of t h e a r e a t o t h e south of Beach S t r e e t t h a t I presented t o him t h e s i t u a t i o n of a man whose son had been k i l l e d i n Pear l Harbor and we were t e l l i n g him, "You move out." So I c a l l e d Tom Clark i n and I s a i d , "I want you t o l i s t e n t o t h i s s tory ." There wasn't anything you could do r e a l l y .

But then because t h e r e wasn't a c l e a r understanding between t h e m i l i t a r y and t h e Department of J u s t i c e , they s e n t Ed [Edward J . ] Ennis o u t here from Washington. Ed Ennis came o u t and entered i n t o a formal agreement of some kind, a w r i t t e n agreement. I have never seen i t s ince . I saw i t a t t he time. It was between t h e Department of J u s t i c e and t h e m i l i t a r y a s t o what t h e r i g h t s of t h e m i l i t a r y would be i n t h i s connection.

Sharp: M r . Ennis--

Z i rpol i : He became general counsel f o r t h e American C iv i l L i b e r t i e s Union, he ' s s t i l l l i v i n g . I guess he was general counsel f o r t h e American C i v i l L i b e r t i e s f o r t h e l a s t f i f t e e n o r twenty years .

Sharp: We had done an o r a l h i s t o r y with M r . Ennis, and wi th Tom Clark a s wel l , a s p a r t of t he Ear l Warren pro jec t .* M r . Ennis comes o u t i n t h e o r a l h i s t o r y a s very much i n oppos i t ion t o t h e m i l i t a r y and t o General DeWitt and very suppor t ive of t h e Department of J u s t i c e t ry ing t o be t h i s moderating inf luence .

Zi rpol i : There is some t r u t h i n t h a t , but i n t h e f i n a l ana lys i s , t he Depart- ment of J u s t i c e f i n a l l y gave i n .

Sharp: Right, I want t o ask youabou t t h a t , but a l i t t l e b i t l a t e r on, because I th ink your views would be an important p a r t of t h a t .

*See Ennis 's and Clark ' s interviews i n Japanese-American Relocation Reviewed, Vol. I: Decision and Exodus, Regional Oral Bistory Office, The Bancroft Library, Universi ty of Ca l i fo rn i a , Berkeley, 1976.

Sharp: I wondered about t h e U.S. a t t o rney ' s o f f i c e and whether o r not any members took p a r t i n t h e Tolan committee hearings [held i n San Francisco i n February and March 1942].*

Zi rpol i : No, and I remember very l i t t l e about i t . I do know t h a t they were here and I knew [John H. ] Tolan very wel l and beyond t h a t my memory doesn ' t he lp me.

Sharp: Do you remember i f t he re was any s p e c i f i c o r general e f f e c t of t h e committee hearings on t h e Alien Enemy Control Board's work?

Zi rpol i : I don' t t h i n k , i t had any genera l e f f e c t on t h e work of t h e board, but i t d id have an e f f e c t on t h e evacuation program because t h e r e was s o dang much testimony about t h e h o s t i l i t y t o t h e Japanese.

Sharp: So i t r e a l l y speeded i t up, i t seems.

. rpo l i : That 's r i g h t , t h e testimony a s t o t he h o s t i l i t y of t h e Japanese and a l s o t h e unwillingness of t h e people i n t h e inne r s t a t e s t o accept un res t r i c t ed movement of t h e Japanese. So t h e r e had t o be, i n t h e f i n a l ana lys i s , war r e loca t ion cen te r s because t h a t ' s t h e only th ing t h a t was u l t ima te ly acceptable t o t he governors of t h e var ious s t a t e s . There was s t rong resentment t o having t h e Japanese come i n t o those s t a t e s .

Sharp: When t h e board was i n t e r n i n g those a l i e n s t h a t were not convicted but a t l e a s t committed t o these internment camps, was the re q u i t e a b i t of r e s i s t a n c e even a t t h a t po in t i n t h e surrounding co rnun i t i e s

. t o having t h e camps loca t ed the re l i k e t h e one i n Missoula, t he re was i n Texas--

Z i rpo l i : I don' t know of any s p e c i f i c r e s i s t a n c e t o t h e camp a s long a s i t was under t h e cont ro l of t h e m i l i t a r y . Missoula was under t h e con- t r o l of t h e m i l i t a r y and s o I don' t know of any. I don' t r e c a l l any.

Sharp: I have down fou r t h a t were s p e c i f i c a l l y Alien Enemy Control Board camps. I ' m no t s u r e i f t h i s was r i g h t o r no t , but two f o r t h e Japanese, one i n Texas and one i n New Mexico, which were t h e ones you mentioned, and then two f o r I t a l i a n s , one i n Minnesota and one i n Montana. Were the re more?

Z i rpo l i : Oh, I am s u r e t h e r e were more even on t h e East Coast. I ' m s u r e , but I can ' t t e l l you where they were loca ted .

Sharp: In your own tape t h a t you made about a month ago, you ta lked about your work wi th t h e board. You mentioned Sharp Park, a s wel l a s these camps.

*The f u l l t i t l e f o r t h i s congressional c o r n i t t e e was t h e Se l ec t Com- mi t t ee Inves t iga t ing National Defense Migration.

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp Park w a s j u s t a p l ace f o r them pending t h e hea r i ng . Once t h e hea r i ng w a s conducted, i f they were ordered i n t e rned , they were s e n t on t o Missoula, t h e I t a l i a n s , f o r i n s t ance .

You d id then go t o &me of t h e camps, some of t h e s e p a r t i c u l a r c en t e r s ?

I have never been t o Tule Lake.

But you mentioned t h a t you went t o New Mexico t o do some of t h e hea r i ngs t h e r e .

Yes, t h e r e we were conducting hea r i ngs and t h e on ly hea r i ngs t h a t I p a r t i c i p a t e d i n were held i n San Francisco and i n New Mexico.

But you never s a w any of t h e camps, e i t h e r t h e board ones o r t h e genera l in ternment camps?

No.

Did t h e a l i e n s have defense ' counse l? Did they have lawyers who represen ted them i n f r o n t of t h e board 's hea r i ngs?

Some of them d id . I n t h e hea r i ngs b e f o r e t h e board i t s e l f , no t r e a l l y . I don ' t remember any lawyer appear ing a t any of them, The only t ime t h e lawyers appeared would b e i f somebody w a s picked up on a complaint l i k e t h a t man w i th t h e dynamite o r an I t a l i a n having a gun o r something o f t h a t cha r ac t e r . Then a lawyer would appear , because normally a complaint would be f i l e d w i t h t h e U.S. commissioner and then we would o r d e r i t dismissed.

I had s een some mention t h a t t h e J u s t i c e Department forbade Hoover and t h e FBI from publ i sh ing t h e names o f t h e people t h a t were a r r e s t e d f o r t h e s e hea r i ngs i n o r d e r , I presume, t o s ave t h e f a m i l i e s from some s o r t of embarrassment of t h e p u b l i c i t y o f be ing a r r e s t e d . Do you remember having t o dea l w i th t h a t a t a l l ?

No. I do know t h a t a l l o f t h e r e p o r t s were c o n f i d e n t i a l and t h e r e were reasons f o r t h a t . You might be a German a l i e n o r an I t a l i a n a l i e n , and i f your nephew d i d n ' t l i k e you o r your s i s te r - in - law d i d n ' t l i k e you o r somebody l i k e t h a t , they might b e t h e ones who would b e g iv ing in format ion de t r imen t a l t o you because t h e FBI i n t e r r o g a t e d a l o t of people. I f they wanted t o know about you, they would go and t a l k t o your f r i e n d s and even members of your family and f i n d o u t what you know about t h e i r a c t i v i t i e s .

For i n s t a n c e , we had an I t a l i a n l ady who used t o always be a t t h e I t a l i a n consu l a t e and a l s o go t o a l l of t h e s o c i a l even ts a t t h e German consu l a t e . She w a s a c i t i z e n who w a s ordered t o l e ave t h e a r e a . One of h e r r e l a t i v e s d i d n ' t l i k e h e r and had a l o t of bad t h ings t o s ay about h e r .

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Of course, a f t e r t h e war and many yea r s a f t e r i t , a number of t he se I t a l i a n s , a t l e a s t by way of i l l u s t r a t i o n , who were ordered ou t of t h e a r e a o r i n t e rned , were always anxious t o t a l k t o m e t o see i f I could t e l l them who w a s respons ib le f o r what happened t o them. Of course, I never d i d make any d i sc lo su re s of t h a t cha rac t e r . Of course, t h e informants a l l bore numbers. They never had a name. I could g e t t h e name from t h e FBI, bu t i t would be, say , according t o 234 o r according t o 243, X d id t h i s o r t h a t .

The informants were no t brought i n t o cou r t then, s o t h e r e was no conf ronta t ion .

Oh, no, never. That would j u s t appear i n t h e FBI r e p o r t and t h a t ' s a l l .

The person, t h e a l i e n , would then be confronted wi th t h i s l is t of a c t i v i t i e s t h a t people t o l d t h e FBI, o r whomever, about?

Yes, they would b e confronted, t h a t ' s r i g h t , with whatever--the agent would make h i s r epo r t and t h e a l i e n would be t h e r e and would hear i t . Then i t would become h i s t u r n t o answer. Now, w e had one [case] where a nava l i n t e l l i g e n c e r e p o r t s a i d t h a t t he f a t h e r of t h i s Japanese w a s an admiral i n t h e Japanese navy and when he heard t h a t , he s t a r t e d t o laugh. I mean i t was s o r i d i cu lous !

There has been some comment, and you have r a i s e d i t , too, t h a t t h e r e were few r e s t r i c t i o n s on what was admissible evidence i n t o these hear ings. Did t h a t bo the r you a t a l l t h a t i t was somewhat loose?

I f you had t o g ive every one o f these people a f u l l t r i a l , t h e equiva len t of a f u l l t r i a l , you would never finish--they'd be t h e r e and you would be t h e r e f o r months. W e gave them an opportuni ty t o answer, t h e r e was no ques t ion about t h a t . Whatever went i n t o t h e record , they heard i t a l l and they could give t h e i r response t o i t .

In h i s o r a l h i s t o r y , Tom Clark mentioned t h a t t h e Germans and I t a l i a n s were handled s o r t of on a one-by-one b a s i s .

Yes.

He mentioned t h a t o r i g i n a l l y he thought t h a t poss ib ly t h e Japanese could have been handled t h e same way.

Yes.

Was t h e r e much f e e l i n g wi th in t h e department t h a t t h a t was pos s ib l e , too?

Z i r p o l i : I t h i n k t h e r e was f e e l i n g t h a t i t was p o s s i b l e . They had a n example i n England t o fo l low i f they wanted t o f o l l o w i t and they d i d n ' t . But t h e number was s o g r e a t , p a r t i c u l a r l y when i t came t o t h e Japanese. The emergency was s o g r e a t and t h e number was s o g r e a t t h a t t h e y cou ldn ' t do i t .

Sharp: So you t h i n k t h a t t h e numbers, t h e s h e e r f a c t o f t h e numbers, i s one o f t h e important c o n s i d e r a t i o n s ?

Z i r p o l i : Y e s , and then a s u b s t a n t i a l number o f t h e Germans and I t a l i a n s were asked t o l e a v e t h e a r e a by t h e genera l , p a r t i c u l a r l y t h o s e few who were c i t i z e n s t h a t they were concerned abou t , and they would do i t v o l u n t a r i l y . So t h e r e was never any need f o r any h e a r i n g . They l e f t . Some o f them went t o Chicago. A s I s a y , one o f them, a lawyer, went t o Chicago and went t o work f o r t h e I n t e r n a l Revenue Serv ice i n Chicago.

Sharp: I had a n o t e t o a s k you about General D e W i t t ' s d i s s a t i s f a c t i o n .

Z i r p o l i : I on ly m e t him twice .

Sharp: He doesn ' t seem l i k e a very amicable person.

Z i r p o l i : Bendetsen was t h e person you d e a l t w i t h , Colonel [Kar l ] Bendetsen.

Sharp: He was a c t u a l l y i n charge o f t h e evacua t ion from what I had read.*

Z i r p o l i : Y e s , h e was a lawyer and h e was i n charge. T h a t ' s . r i g h t .

Sharp: Now, wi th DeWitt 's d i s s a t i s f a c t i o n , which most of t h e h i s t o r i c a l sources make q u i t e a b i g d e a l o f , i t is s a i d t h a t h e pushed and pushed and pushed. I wondered i f t h a t f i l t e r e d down t o your own work i n t h e p rosecu t ion of t h e a l i e n s , your work w i t h t h e board, i f you were hearing--?

Z i r p o l i : Oh, I know. I knew t h a t I was under some k i n d of p r e s s u r e from him. I could f e e l t h a t . I mean t h e ve ry f a c t t h a t h e r e p o r t e d to--

Sharp : A l l t h e way up--

Z i r p o l i : A l l t h e way up on t h i s dynamite i n c i d e n t was some i n d i c a t i o n t o m e , b u t t h a t r e a l l y d i d n ' t worry m e . The o n l y o t h e r t h i n g I was worrying abou t , D e W i t t might n o t have l i k e d m e because I was I t a l i a n and t h a t was something t h a t I had t o g ive some thought t o , e s p e c i a l l y when we were a rgu ing about t h a t boundary l i n e [on Beach S t r e e t ] .

*Bendetsen was d i r e c t o r o f t h e Wartime C i v i l Control Admin is t ra t ion .

Sharp: Because t h a t looked p r e t t y susp ic ious? I mean he might have thought t h a t you looked f a i r l y susp ic ious?

Z i rpo l i : No, h e might have thought t h a t I had some sympathy f o r t he se I t a l i a n s . He had no sympathy f o r t h e enemy a l i e n s a t a l l , and f o r t h e Japanese h e had none whatsoever and, a s a mat te r of f a c t , used t h e expression t h a t "a Jap was a Jap" and th ings of t h a t cha rac t e r , even when h e t e s t i f i e d be fo re the--

Sharp: Is t h a t r i g h t ? Before t h e Tolan c o m k t t e e ?

Z i rpo l i : I th ink so .

Judge [William] Denman made some re fe rence t o i t i n h i s d i s sen t ing opinion.*

Sharp: Was t h e r e pressure on your o f f i c e from any of t h e Ca l i fo rn i a s t a t e o f f i c i a l s l i k e t h e a t t o rney general?

Z i rpo l i : None. The a t t o rney general f i l e d a b r i e f . [Ea r l ] Warren w a s t h e [Ca l i fo rn i a ] a t t o rney general succeeded by--I c a n ' t t h ink of t h e

. name of h i s successor--Kenney.

Sharp: Robert Kenney?

Z i rpo l i : Y e s , h e was succeeded by Robert [W.] Kenney and they f i l e d an [amicus] b r i e f , bu t t h e i r concern was p r imar i l y f e a r of r i o t i n g and r e t a l i a t o r y measures on t h e p a r t of t h e populace.

Sharp: Did you hea r from t h e publ ic a t a l l ? Did people p i cke t t h e U.S. a t t o r n e y ' s o f f i c e o r w r i t e letters o r make nas ty phone c a l l s ?

Zi rpol i : No.

Sharp: Were they even aware t h a t t h i s was going on?

Zi rpol i : Oh, s u r e , they w e r e aware i t was going on. The curfew made headl ine news; t h e neces s i t y f o r t r a v e l permits and a l l of t he se th ings w e r e c a r r i e d i n t h e p re s s . Of course, t h e Japanese complied very w e l l . They w e r e adequately regimented i n t h e i r r eac t ions .

Sharp: What about Mayor [Angelo] Rossi? I had seen a no t e t h a t he had in te rvened on behalf of some members of t h e I t a l i a n community whom I th ink had been a r r e s t e d .

*This i s a re fe rence t o Judge Denman's d i s s e n t i n t h e Ninth C i r c u i t Court of Appeals case , Toyosaburo Korematsu v. United S t a t e s , 140 F. 2d 289 (1943).

Zi rpo l i : The. only one t h a t I can th ink of t h a t h e might have intervened i n behalf of would be Sy lves t e r Andriano.

Sharp: Yes, because h e had been mayor q u i t e a whi le , l i k e twelve o r t h i r t e e n years .

Z i rpo l i : Yes, he had been mayor. That 's r i g h t , because h e was e l ec t ed around '30-'31.

Sharp : I n '31, I think.

Zirpol i: I w a s i n h i s campaign, s o I remember. I was supposed t o make t h e opening campaign speech i n t h e Lafaye t te Club and t h e mayor s e n t f o r m e a t my home. H e s e n t h i s c a r t o pick m e up and my mother was /

g r e a t l y impressed t o see t h a t t h e mayor's c a r was picking m e up. I was only twenty-five years o r twenty-six years of age. I got t o t h e c lub t o make t h e speech, b u t t h e d inner t h a t t h e mayor a t tended was over and h e managed t o ge t t o t h e club before i t was t i m e t o make my speech s o I never made i t! [ laughter ]

Sharp: Oh, t h a t ' s too bad!

There was a l s o mention of a group of I t a l i a n s who had c a l l e d on t h e a t t o rney general , on M r . Warren, t o plead some s o r t of recon- s i d e r a t i o n of hardship i n s e v e r a l of t h e a l i e n con t ro l board cases .

Z i rpo l i : Who d i d they meet?

Sharp: They c a l l e d on Attorney General Ea r l Warren.

Z i rpo l i : I am no t f a m i l i a r wi th i t .

Sharp: Okay, I j u s t d idn ' t know i f you had any memories o r i f you r eca l l ed i t a t a l l . I had o r i g i n a l l y thought t h a t t h e internment began i n May, bu t a c t u a l l y i t began i n March of '42, t h e more general i n t e rn - ment.* The contac t wi th t h e process of internment f o r your o f f i c e , f o r t he U.S. a t t o r n e y ' s o f f i c e , what was t h a t ?

Z i rpo l i : None, un less somebody v i o l a t e d t h e o rde r . Otherwise, w e had none. I n o the r words, t he army j u s t took care of t he whole t h ing .

Sharp : Now, I th ink i t ' s i n '43, a yea r l a t e r then, t h a t t h e War Relocation Authori ty went i n t o c i v i l i a n con t ro l and t h a t was headed by Di l lon q e r , who passed away r ecen t ly .

*On 22 March 1942 t h e f i r s t group of Japanese and Japanese Americans moved from Los Angeles t o t he Manzanar Assembly Center.

Zi rpo l i : Eisenhower s t a r t e d i t , Milton Eisenhower, and then Myer.

Sharp: I th ink Eisenhower was j u s t very, very b r i e f l y .

Z i rpo l i : That 's r i g h t . He was given another assignment by the p re s iden t . It had t o do wi th war information.

Sharp: Was t h e r e any change f o r t h e involvement o f t h e U.S. a t t o rney ' s o f f i c e once i t became a c i v i l i a n se tup?

Z i rpo l i : A s f a r a s , f o r ins tance , what happened i n those r e l o c a t i o n cen t e r s under t h e War Relocat ion Authority w e had none. The only i nc iden t I had was Mitsuye Endo.*

Sharp : I had seen a remark t h a t s a i d t h a t a s t h e evacuat ion, t h e genera l evacuat ion and t h e internment o f t h e West Coast Japanese, was implemented, t h a t t h e r e s t r i c t i o n s on t h e Germans and t h e I t a l i a n s were somewhat re laxed a t t h a t po in t .

Z i rpo l i : The only r e s t r i c t i o n s on t h e Germans and t h e I t a l i a n s were sou th of Beach S t r e e t , t r a v e l , curfew, bu t those a r e t h e same r e s t r i c t i o n s t h a t appl ied t o almost anyone. Curfew, le t ' s take l i g h t s ou t , t h a t appl ied t o everyone r ega rd l e s s of your background. Travel and being ou t a f t e r 6 p.m. appl ied t o I t a l i a n s and Germans un less you had a permit , b u t i t was a very simple t h i n g t o g e t a p e r m i t .

W e i s sued some of them i n l o t s of t e n o r twenty a t a t i m e . For i n s t ance , when t h e scavengers wanted a permit , I d idn ' t l i s t e n t o each and every scavenger. So whoever represented t h e scavengers , genera l ly a lawyer, would come i n and ask f o r a permit f o r t h e scavenger and g ive you t h e l is t o f names and you would proceed t o gran t t h e permits . The crowd of people would come i n and it would only be a mat te r of a few minutes and you would give them a t r a v e l permit.

Sharp: But t h i s w a s more o f a f e e l i n g t h a t once t h e internment of t h e Japanese s t a r t e d i n March, t h e wholesale internment, t h a t t h a t s o r t of took t h e pressure o f f and t h a t r e s t r i c t i o n s aga ins t and hard f e e l i n g s even aga ins t t h e Germans and t h e I t a l i a n s somehow d i s s ipa t ed .

*Zi rpol i r e f e r s h e r e t o h i s w r i t i n g of t h e "Brief i n oppos i t ion t o p e t i t i o n f o r w r i t of habeas corpus" f o r t h e case I n t h e Matter o f t h e Applicat ion of Mitsuye Endo f o r a w r i t o f habeas corpus, No. 23688-S, i n t h e Northern D i s t r i c t Court, 26 August 1942. Z i r p o l i ' s r o l e is discussed l a t e r i n t h i s interview.

Zirpol i : It d i s s ipa t ed because, f i r s t o f a l l , you couldn ' t t e l l who was a German o r an I t a l i a n o r a Frenchman o r an Englishman from personal appearance. They became p a r t of what we would c a l l t h e American scene i n every r e a l sense because they in te rmarr ied and we had a l l of t hese problems. The Japanese always remained unto themselves and t o a degree maybe even today they do more than any o t h e r r a c i a l group. We weren't worrying about a German invas ion on t h e West Coast o r an I t a l i a n invasion on the West Coast.

On h inds ight , t h e i r f ee l ings were wholly exaggerated bu t , a s I s a i d before, t h e War Department went so f a r a s t o conclude t h a t i f t he re was a Japanese invasion, we wouldn't s t o p them s h o r t of t he Rockies. When they made t h a t kind of a r epo r t , i t ' s an ind ica t ion of t h e i r f e e l i n g .

Sharp: It sounds p r e t t y i n c r e d i b l e now t o look back on i t .

Zi rpol i : Yes, and t h a t ' s one th ing you have t o bear i n mind when you consider t hese cases . When you consider Yasui, Hirabayashi, Korematsu, and Mitsuye Endo,* t h e time period involved changed. Yasui, Korematsu, and Hirabayashi a r e r e f l e c t i o n s of t h e condi t ions i n December [1941], January, and February [1942]. Mitsuye Endo's case had t o be t e s t e d by the condi t ions t h a t ex i s t ed th ree years l a t e r approximately.

Sharp: Was the re any r o l e f o r t h e Northern D i s t r i c t Court i n t h e process of the internment?

Zi rpol i : The d i s t r i c t court?

Sharp: Yes, a s a f ede ra l cour t .

Z i rpol i : The only way t h e d i s t r i c t cour t f o r t h e Northern D i s t r i c t of Ca l i fo rn i a got involved was, f o r ins tance , i n t h e case of Korematsu and Mitsuye Endo. Those a r e t he only two. There was one i n Port land and one i n S e a t t l e and t h a t ' s a l l . There was one o t h e r seaman's case t h a t had some s igni f icance . There t h e problem involved was h i s r i g h t t o sue and c o l l e c t f o r damages f o r i n j u r i e s received on board a sh ip . The defense was t h a t he had no r i g h t t o prosecute h i s c laim a s an enemy a l i e n . (This was a Japanese a l i e n . ) The cour t s a i d , "No, no, he has t h e r i g h t t o access t o the cour t and, therefore , h i s case may proceed. ''

*Pasui v. United S ta t e s , 320 U.S. 115 (1943); Hirabayashi v. S t a t e s , 320 U.S. 81 (1943); Korematsu v . United S t a t e s , 323 (1944); Ex p a r t e Endo, 323 U.S. 283 (1944). Both Korematsu o r ig ina t ed i n t h e Northern D i s t r i c t Court; Korematsu a s U.S Toyosaburo Korematsu, 27635-W, Ju ly 8, 1942; s e e f o o t n o t e p Endo.

United U.S. 214 and Endo v. Fred 72 f o r

Sharp: When would t h i s have come about?

Z i r p o l i : Oh, t h i s would be--there i s a mention t o i t i n one o f t h e b r i e f s some t i m e around-I don ' t know, some t i m e around '42 o r '43 when t h e c a s e w a s pending. Th is was f o r i n j u r i e s h e had rece ived as a s e a m n .

Sharp: Okay, I remember t h a t .

Z i r p o l i : Le t m e see, I may have something on a d a t e , 1'11 g i v e i t t o you. This was a l s o a n important case . I j u s t happened t o r u n a c r o s s i t by a c c i d e n t , Ex p a r t e Q u i r i n . * It had t o do w i t h t h e l a n d i n g o f t h e s a b o t e u r s on t h e Eas t Coast and I r e l i e d i n small measure on t h i s [U.S.] Supreme Court r u l e which permi t t ed t h e c r e a t i o n o f t h e c o d s s i o n , a s p e c i a l commission, t o t r y them. This was argued i n t h e Supreme Court i n October o f 1942. He f i l e d h i s s u i t i n A p r i l o f '41 and a f t e r P e a r l Harbor, they t r i e d t o a b a t e t h e proceedings. They wanted abatement o f t h e s u i t d u r i n g t h e war and t h e Supreme Court, o f course , s a i d , "No, h e h a s t h e r i g h t t o a c c e s s t o t h e c o u r t l i k e anyone else, c i t i z e n and a l i e n a l i k e , as l o n g as t h e c o u r t s a r e open c e r t a i n l y f o r purposes of c i v i l l i t i g a t i o n . "

Sharp: I had more o f a p e r s o n a l q u e s t i o n f o r you and t h a t w a s I was won- d e r i n g about your f a t h e r .

Z i r p o l i : My f a t h e r was a former s e c r e t a r y o f t h e I t a l i a n c o n s u l a t e , which h e l e f t i n 1939 because h e saw t h e war coming. So h e saw t h e war coming and h e r e s i g n e d f o r t h a t ve ry reason . He d i d n ' t want t o b e a s s o c i a t e d w i t h t h e c o n s u l a t e i n t h e event o f a war. My f a t h e r d i e d i n '42. Of course , h e wor r ied about m e , a s h e would.

My f a t h e r had a c o u s i n i n I t a l y who was a g r e a t photographer . He was photographer o f t h e House o f Savoy and l a t e r a c t u a l l y o f f i c i a l photographer f o r t h e government o f I t a l y . H e would send my f a t h e r a copy o f a l l o f t h e photographs t h a t he would t a k e o f Musso l in i and H i t l e r and Goering and a l l o f t h e s e people , and my mother had a tremendous c o l l e c t i o n o f g r e a t h i s t o r i c v a l u e . But wi th P e a r l H a r - bor s h e burned them a l l , p u t them a l l i n t h e c o a l burner o f t h e s t o v e t h a t we had, and burned a l l o f t h e s e v a l u a b l e photographs.

Sharp: Was s h e f e a r f u l t h a t t h e r e would be some r e p r i s a l against--?

Z i r p o l i : ' Y e s , s h e was. Of course , my f a t h e r t r i e d i n whatever way he could t o b e o f a s s i s t a n c e , t o o , based on h i s knowledge o f who would o r would n o t b e a p o s s i b l e danger t o t h e community.

*The U.S. Supreme Court decided t h i s c a s e on J u l y 31, 1942, and wrote a formal op in ion l a t e r .

Sharp: Did you t a l k t o him about some o f t h e cases that--

Z i r p o l i : Not p a r t i c u l a r l y . No, no t p a r t i c u l a r l y .

Sharp: He w a s f a i r l y c l o s e t o t h e a c t i o n i n t h e s e n s e of be ing i n t h e consu la te . A t l e a s t i n t h e r e cen t pa s t he had been i n t h e consu la te .

Z i r p o l i : Of course , my f a t h e r d i d n ' t l i v e very l ong a f t e r t h e w a r . [pause]

U. S. v . Fred Toyosaburo Korematsu -

Sharp: The rest o f my ques t i ons are about t h e cases , Korematsu f i r s t and then some about Endo a f t e r t h a t . For Korematsu, i n t h e b r i e f f o r t h e p e t i t i o n e r i n oppos i t ion t o t h e demurrer w r i t t e n by Wayne [M.] Co l l i n s (who w a s t h e ACLU* a t t o r n e y ) , I wondered what you thought w a s most noteworthy about t h a t p a r t i c u l a r b r i e f ? . H e a t t a cked t h e government's p o s i t i o n from s e v e r a l ang les from what I could see. H e t a l ked about t h e p rosecu t ion hav ing t o prove t h i s martial l a w theory.

Z i r p o l i : Y e s , they went on t h e theory t h a t under m a r t i a l l a w you cou ldn ' t do t h i s . My theory w a s t h a t we ' re n o t t a l k i n g about martial l a w a t a l l . This i s n o t a ques t i on of martial l a w , t h i s i s a ques t ion of exer- c i s i n g t h e power o f t h e p r e s iden t w i th t h e approval of Congress.

I n o t h e r words, I went on t h e theory t h a t t h e s e were w a r powers. Therefore , whatever measures were necessary i n t h e n a t i o n a l i n t e r e s t could be t aken and t h a t t h e t h e a t e r of m i l i t a r y ope ra t i on was no t t h a t which e x i s t e d f o r t y o r f i f t y o r a hundred yea r s before .

So, I had t o a rgue on t h e ques t i on of q u a l i f i e d m a r t i a l l a w and w a r power i n a s ense because t h e cou r t asked about i t . That w a s one of t h e ques t ions they i n t e r r o g a t e d of m e when we had an o r a l presen- t a t i o n .

When t h e t i m e came t o w r i t e t h e b r i e f , I commented. I s a i d , "We don ' t have t o even cons ider i t . But i f w e have t o cons ider i t ," then I went on t o say , "you have t o conclude t h a t i n today ' s ve r s i on of war fa re , t h e m i l i t a r y zone i s no t t h a t which w a s a m i l i t a r y zone i n Mi l l i gan ' s t i m e i n 1867.**Therefore, t h e r e would be need f o r what one might c a l l a form of q u a l i f i e d martial l a w . "

I wasn ' t making t h i s as a s t r o n g argument. I would have pre- f e r r e d n o t t o have t o argue i t a t a l l . But t h i s w a s one of t h e b i g arguments t h a t they made on beha l f of Korematsu and Mitsuye Endo and

*American C i v i l L i b e r t i e s Union.

**This i s a r e f e r ence t o Ex p a r t e Mi l l igan , 4 W a l l . 2 (1867).

Zirpol i : s i n c e they made t h i s argument and t h e cour t questioned me about i t , I t r i e d t o meet i t and I t r i e d t o meet i t i n t h e b r i e f .

But our primary argument was t h a t t h a t t h i s was an exe rc i se of the war power on t h e p a r t of t h e pres ident and of t h e Congress.

il il

Sharp: An important i s s u e i n t h e defendant 's b r i e f , f o r me, was about t h e war powers--what Col l ins s a i d was t h e war powers of t h e f e d e r a l government - a r e sub jec t t o provis ions and l i m i t a t i o n s of t h e Consti- t u t i o n , which is no t superseded by war. I mean what h e was saying was t h a t i t i s not unlimited.

Zi rpol i : I know, but I argued t h a t when t h e very l i f e of t h e na t ion is a t s t ake , some of t hese c o n s t i t u t i o n a l r i g h t s have t o g ive way. You have your c o n s t i t u t i o n a l r i g h t of f r e e speech, bu t i t is not absolu te and you can ' t , t o use t h e o l d expression, "Holler o r shout ' f i r e ' i n t h e t h e a t e r and cause a stampede." I mean you can be prosecuted.

So my argument w a s t h a t we had t o weigh and balance these c o n s t i t u t i o n a l r i g h t s one aga ins t t h e o t h e r and s e e what predominates i n time of war, and is t h e power of t h e government t o defend i t s e l f paramount i f t h e very l i f e of t h e government o r t h e na t ion depends on i t .

The o t h e r argument is, what i s the good of saving t h e na t ion i f you have t o des t roy c o n s t i t u t i o n a l r i g h t s i n so doing?

So these were counterva i l ing arguments, bu t never the less t h a t was t h e argument.

Sharp: Col l ins then c l e a r l y came r i g h t ou t and sa id t h a t Publ ic Law 503 (which was t h e congressional law), Executive Order 9066, and then t h e Japanese Exclusion Order 34 ( t h a t was DeWitt's o rder ) were uncons t i tu t iona l f o r a l l of these reasons, p r imar i ly because of t h e r i g h t s of t he p r i v a t e person t h a t were squashed.

Z i rpo l i : Yes, but t h e r i g h t s of p r i v a t e persons, many of t h e r i g h t s of p r i v a t e persons, have t o g ive way and they a r e surrendered i n time of war. It depends upon how you i n t e r p r e t your war, bu t i f t h e war i s of such a na ture and t h e t h r e a t i s such, you can r e s t r i c t t h e a c t i v i t i e s of c i t i z e n s whether they a r e Japanese o r German o r I t a l i a n o r French o r English. I am t a l k i n g of r e s t r i c t i n g the r i g h t s of American c i t i - zens. A l l American c i t i z e n s had t o put t h e i r l i g h t s ou t regard less of t h e i r e t h n i c background.

Sharp: What a r e your observat ions of Wayne Col l ins and M r . [Clarence E . ] Rust?

Zi rpo l i : J i m [James C.] Pu rce l l and Wayne Co l l i n s and [Ernes t ] Besig, they were a l l good lawyers, they were g r e a t c i v i l l i b e r t y lawyers. Wayne Col l ins , I had g rea t admirat ion f o r him. They wrote good b r i e f s , they made good arguments, and u l t ima te ly they succeeded wi th Mitsuye Endo. But, of course, Mitsuye Endo was no t Hirabayashi o r Korematsu. - Mitsyue Endo was i n 1943 o r '44. I have fo rgo t t en t h e yea r when t h e [U.S.] Supreme Court ru l ed [1944]. When t h e Supreme Court ru l ed , i t ru l ed based on condi t ions e x i s t i n g then, not on condi t ions e x i s t i n g a t t h e t i m e of Pea r l Harbor o r immediately t h e r e a f t e r . I th ink t h e Supreme Court made i t p r e t t y c l e a r t h a t you had to draw these d i s t i n c t ions .

Sharp: Besig 's r o l e was p a r t i c u l a r l y i n t e r e s t i n g . I not iced t h a t he pu t up h i s own t r ea su ry bond f o r b a i l f o r Fred Korematsu.

Z i rpo l i : Y e s .

Sharp: That s o r t of personal involvement su rp r i s ed me. I d i d n ' t expect t h a t h e would s o r t o f go ou t on a limb l i k e t h a t .

Z i rpo l i : He was head of t h e American C i v i l L i b e r t i e s Union i n t h i s a r e a [San Francisco] and Co l l i n s d id a l o t of work f o r them and became par- t i c u l a r l y i n t e r e s t e d i n t h e Japanese. H e developed a tremendous Japanese following. He was t h e p r i n c i p a l a t t o rney f o r t h e r e t u r n of t h e p r o p e r t i e s of t h e Japanese t h a t had been se i zed during t h e war. H e a l s o was a t t o rney i n t h e defense of Tokyo Rose [ Iva Toguri dlAquino].

Sharp: Tha t ' s r i g h t . I hope w e ge t around t o t a l k i n g of t h a t . Tha t ' s a much l a t e r case a c t u a l l y , '53 o r '55.

Z i rpo l i : I don ' t remember. I was i n p r i v a t e p rac t i ce . I n f a c t , I represented [Major ] Wallace E. Ince, who became a witness i n t h a t case.

Sharp: Next t i m e I th ink I would l i k e t o ask you about t h a t .

Was t h e ACLU a s s t rong an organiza t ion i n terms of g e t t i n g t he se cases worked out--

Z i rpo l i : It was f a i r l y s t rong . By t h i s t i m e , you had A l Wirin i n southern Ca l i fo rn i a whose name a l s o appears on some of t he b r i e f s . Oh, no, they were f a i r l y e f f e c t i v e . They were doing a p r e t t y good job then. The b i g problem, t h e unfor tuna te problem, about t he American C i v i l L i b e r t i e s Union i s t h a t some of t h e people i n t h e American C i v i l L i b e r t i e s Union *re labe led a s Communists by people l i k e Senator [Joseph] McCarthy.

Sharp: It gives you a bad name without any r e a l s u b s t a n t i a t i o n .


Sharp: The amicus b r i e f s en te red by Herbert Wenig i n Korematsu and i n Endo I thought were r e a l l y i n t e r e s t i n g . It was p a r t of Ear l Warren's r o l e a s a t t o rney genera l and then, of course, a s governor by t h i s time, t h a t I hadn ' t seen. He was p r e t t y much suppor t ing the U.S. a t t o rney ' s o f f i c e and s tand .

Z i rpo l i : They w e r e suppor t ing t h e o f f i c e pr imar i ly because they s a i d , "If t h e m i l i t a r y doesn ' t handle t h i s s i t ua t . i on , then we've got t o do i t and we don' t have t h e p o l i c e fo rce t o do i t o r t h e f a c i l i t i e s t o do it; the army can do i t , bu t we c a n ' t . Who is going t o p a t r o l t h e so- ca l l ed Japanese d i s t r i c t i f t h e Japanese a r e permit ted t o remain t h e r e ? Who is going t o prevent bloodshed i n t h a t a r ea? Who is going t o prevent r i o t i n g when t h i s becomes t h e r e s p o n s i b i l i t y of t h e s t a t e t h a t w e a r e no t equipped t o handle?" This was p r e t t y much t h e i r argument.

Sharp: They seem r e a l l y q u i t e f e a r f u l of what was going t o happen.

Z i rpo l i : The-Supreme Court d i d n ' t go i n t o t h a t i n any d e t a i l a t a l l t o speak of b u t t h a t was t h e i r b a s i c f e a r .

Sharp: It 's a very impressive b r i e f , some of t h e language. I don ' t know who wrote i t , i f Warren wrote it--

Z i rpo l i : Wenig wrote i t , Herb Wenig.

Sharp : -Very persuasive.

Z i rpo l i : Judge [William T.] Sweigert of t h i s cou r t was t h e ch ie f deputy t o Ear l Warren a s a t t o rney general and a l s o became h i s execut ive s e c r e t a r y when h e became governor. Warren assigned Herb Wenig t o t h i s l i t i g a t i o n .

Sharp: I n your b r i e f i n support of t h e demurrer, i t ' s t h e m i l i t a r y neces s i t y argument. It 's very s i m i l a r t o t h e b r i e f t h a t you wrote f o r Endo.

Z i rpol i : No, t h e b r i e f I wrote f o r Korematsu was s i m i l a r t o t h e b r i e f I wrote i n Endo. Oh, yes , because from my poin t of view t h e argument had t o be t h e same. I was t r y i n g t o j u s t i f y t h e o r i g i n a l de ten t ion , p u t t i n g them i n t h e camp, because I was arguing, I was saying, "She hasn ' t exhausted h e r admin i s t r a t i ve remedies. Un t i l s h e exhausts he r adminis t ra t ive remedies, s h e has no r i g h t t o habeas corpus."

So t h e only t h i n g l e f t f o r m e t o argue was b a s i c a l l y t h e o r i g i n a l o rde r . " I f what was done o r i g i n a l l y was proper , then s h e can ' t com- p l a i n now because she has an admin i s t r a t i ve procedure she can fol low t h a t w i l l enable h e r t o be re leased . Pending t h a t hear ing , t h i s so- c a l l e d temporary de t en t ion i s permiss ib le because i t ' s t h e very t h i n g we were t r y i n g t o support i n Korematsu."

Sharp: I don ' t know i f you remember what you were th inking a t t h e time, bu t i n t h e o r i g i n a l b r i e f t h a t you wrote f o r Korematsu, do you remember having a choice of ways t h a t you could argue what you did?

Zi rpol i : Korematsu was a cr iminal t r i a l and t h e only problem t h a t I had was t h a t i f I declined prosecution, i t would be d i f f i c u l t t o enforce General DeWitt's o rders f o r then they could be disobeyed and the re would be no prosecut ion. The of fense involved would be a t t h e most a misdemeanor. The p r o b a b i l i t i e s a r e t h a t t h e person would ge t probation, s o we f e l t t h a t i t was b e t t e r t o enforce i n t h i s l imi t ed fashion.

The b i g problem t h a t a r o s e with r e l a t i o n t o Korematsu was, what do you do a f t e r you ge t a convict ion? Do you want an appeal? The answer i s no, we d idn ' t want an appeal. We d idn ' t want a t e s t case. So t h e cou r t put him on probat ion and suspended t h e en t ry of judgment. I f e l t t h a t t h i s might be t h e means by which we could prevent t h e ca se from going up t o t h e Supreme Court because we d i d n ' t want i t to . Even though t h e Supreme Court might r u l e i n our favor , we d idn ' t want one [a t e s t ca se ] .

That was a sub jec t of d i scuss ion between myself and [Edward] Ennis and [John] Burling. I d i d n ' t t a l k t o Burling personal ly, bu t i t was a sub jec t of d i scuss ion between me and t h e Department of Jus t i ce , l e t us say, and t h a t was my idea because I had a l o t of experience i n c r imina l law and en te r ing of judgment and suspension of en t ry of judgment. I f igured t h i s would not be a f i n a l order and hence was not appealable . When t h e [Ninth C i r c u i t ] cou r t of appeals got t h e order , they s a i d , "Is i t appealable?" We don' t know. "

So they c e r t i f i e d t h e ques t ion t o t h e [U.S.] Supreme Court and, of course, [Judge William] Denman d i d n ' t l i k e t h a t . He s a i d , "Why don ' t you t a l k about what is involved here and l e t ' s d i scuss t h i s matter." I n h i s f i r s t d i s s e n t , h e wasn't neces sa r i l y anxious t o r u l e aga ins t t h e government. What he wanted was a presenta t ion of a l l of t h e f a c t s t o t h e Supreme Court and not a simple quest ion, "Is t h i s an appealable order?" Well, t h e Supreme Court s a i d i t was an appealable order , but by t h i s time t h e Department of J u s t i c e was convinced i t was an appealable o rde r , too.

Sharp : Yes, s o you were s tuck.

Zi rpol i : So although they went up the re , they d i d n ' t p ress t h a t a t a l l r e a l l y by t h e time i t got t o t h e Supreme Court.

Sharp: Let me back you up a l i t t l e b i t back down t o t h e d i s t r i c t cour t l e v e l and Judge [A.F . ] S t . Sure. I wanted t o ask you about h i s r o l e i n t h e case. We haven't r e a l l y ta lked too much about him a s a person o r him a s a judge and what kind of judge he was. I was hoping you would remember some of how h e was.

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zirpol i :

Judge S t . Sure was considered, t o use t h e s lang , a tough judge. [ laughs] He gave f a i r l y heavy sentences. H e was a very a b l e judge and, o f course, t h e r e was a p l ea of g u i l t y i n e f f e c t a s f a r a s Korematsu was concerned s o t h a t a l l t h a t was l e f t was f o r t h e judge t o decide what t he punishment s h a l l be. As I s a i d , we persuaded him t o suspend t h e execut ion of t h e judgment and he d id . But h i s r o l e was very minor i n t h e f i n a l ana lys i s . I mean he heard t h e case , he heard t h e c o n s t i t u t i o n a l arguments, h e ru led a g a i n s t t h e arguments, and Korematsu was found g u i l t y and h e suspended t h e execut ion of t h e sentence, pu t Korematsu on probat ion.

J u s t t h e way what Korematsu d id , i t e s s e n t i a l l y s a i d t h a t h e was g u i l t y j u s t by going ahead and t e s t i n g t h e curfew; j u s t t h e way he s e t i t up, h e meant f o r i t t o b e a test case almost i n j u s t t he way h e d id i t .

Not s o much, f o r ins tance , a s maybe Mitsuye Endo. Mitsuye was d e l i b e r a t e . Korematsu i s s t i l l a l i v e .

Is t h a t r i g h t ? I d i d n ' t know t h a t he was.

There was an a r t i c l e i n t h e paper r ecen t ly t h a t Korematsu i s going t o f i l e a l awsui t .

For r epa ra t i ons?

H e wants a new hear ing t o p re sen t f u r t h e r evidence t o s e t a s i d e t h e convict ion, I don ' t know. I saw t h i s i n t h e paper about a week ago, bu t h e i s cons ider ing doing t h a t .

Is he s t i l l i n Ca l i fo rn i a?

No, I th ink h e i s i n S e a t t l e .

I f you move up t h e ladder then up t o t h e Ninth C i r c u i t , t h e d i s s e n t t h a t Judge Denman wrote and t h a t you showed m e , I found myself wondering who Judge Denman was r e a l l y t a l k i n g t o , who h i s audience was meant t o be i n h i s w r i t i n g t h a t d i ssen t . "

I don ' t know who h i s audience would be. I suppose h i s audience was whoever would be disposed t o read a d i s sen t ing opinion. I mean he had h i s views and they were s t r o n g i n t h a t regard and he f e l t t h a t t h e r e was a form of d i sc r imina t ion tak ing p lace . He f e l t t h a t t h e cou r t should consider everything, t h e cou r t should have considered the c o n s t i t u t i o n a l quest ions. It shouldn ' t have passed them on t o t he Supreme Court, s o he proceeded t o s e t f o r t h a l l of t h e problems

*Toyosaburo Korematsu v . United S t a t e s , 140 F. 2d 289 (1943), pp.291- 300.

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

t h a t ex i s t ed and t h a t had t o be t e s t e d and determined. He was somewhat of a l i b e r a l judge, although you never would have expected i t neces sa r i l y from h i s background. It 's t r u e t h a t he was a Democrat, bu t he was b a s i c a l l y an admiral ty lawyer before he went on the bench.

I d i d n ' t e n t i r e l y understand everything he was saying i n t he opinion. He was d i s sen t ing from t h e grounds of t he majori ty opinion, bu t d i s - s e n t i n g i n p a r t . It seemed he was s i t t i n g on the fence.

He was d i s sen t ing i n p a r t because he was saying t h e majori ty opinion-- "I a m d i s sen t ing because a l l they want t o do is c e r t i f y i t and they don' t want t o w r i t e an opinion; they don ' t want t o give t h e i r reasons the re fo r . These a r e a l l of t h e problems t h a t e x i s t . Shouldn't we explore t hese problems? I f we're going t o send i t on, send i t on with a t l e a s t an ind ica t ion t h a t we have explored i t o r we ought t o reso lve i t and l e t them a f f i rm o r reverse, bu t l e t ' s no t j u s t pass t h i s on without taking ou r f u l l r e s p o n s i b i l i t y i n t h e case."

Why couldn ' t they do t h a t ? Why couldn ' t t h e cour t r e a l l y address--

The cour t d i d n ' t want to . The vo te was aga ins t him. I th ink Chief Judge Cur t i s D. Wilbur was t h e pres id ing judge a t t h e t ime. C i r - c u i t Judge Albert L. Stephens wrote a concurring opinion.

Chief Judge Wilbur wrote t he opinion.

Judge Denman d i d n ' t concur wi th t h e r e s u l t . He s a i d , "That's no way t o do it," and s o he went on f o r q u i t e a number of pages. I th ink he had w r i t t e n a d i s s e n t i n Hirabayashi on t h e quest ion of c e r t i f i c a t i o n . That 's r i g h t , he was saying, "You a r e doing what you d id i n Hirabayashi, you ' re avoiding t h e i s sues again."

Right, and i t made me wonder what kind of person Denman was.

Denman? [laughs]

He has come up before.

Oh, I had enough experience with Denman before and experience with him l a t e r a s f a r a s t h a t goes. I kind of l i k e d him. He took a g r e a t i n t e r e s t i n h i s work. He worked hard. It was obvious t h a t he had some l i b e r a l views, although one would never have suspected i t based on h i s e a r l i e r background and those views were expressed i n habeas corpus proceedings before and a f t e r .

He seemed somewhat of a maverick.

Zi rpol i : Yes, he was.

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

I have a sense of t h e r e s t of t h e members of t h e cou r t , h i s col leagues, s o r t of going, "Here we go again, Denman is s t i c k i n g ou t l i k e a s o r e thumb and no t l e t t i n g t h i s t h ing r i d e by." Were the re repercussions, ill f e e l i n g aga ins t Denman?

I have a f e e l i n g t h a t t he re was some, bu t I have no way of measuring i t a t a l l . I j u s t have t h a t f e e l i n g based on these var ious experiences I had with Denman, including t h e f a c t t h a t h e went i n t o cour t t o l i s t e n t o an argument i n a case where h e was b a s i c a l l y s i t t i n g a s a d i s t r i c t judge i n t h e habeas corpus case. I f t h e judge w i l l t ake t h e t roub le t o go i n t o , t he courtroom and s i t down i n t h e f r o n t row and l i s t e n t o what h i s col leagues have t o say about him i n h i s case, t h a t ' s some ind ica t ion .

What d id h e look l i k e ?

Oh, a very handsome man, a b i g man, whi te h a i r , a very handsome man. You c a n ' t imagine one who was more dis t inguished-looking a s a judge than Denman.

Did he do t h i s o f t en , t h i s s o r t of d i s s e n t ?

Oh, o f t en enough, yes . [laughs] That was another problem with him.

I n textbooks on c i r c u i t cou r t judge behavior and c o l l e g i a l dec is ion making, t h e r e a r e always references t o judges who d i s s e n t and t h e animosity o r a more g e n t l e term, ill fee l ing , t h a t begins t o grow aga ins t t h e one who s t i c k s o u t and j u s t s o r t of won't go along with the--

That i s something t h a t is hard t o measure because nobody is going t o come ou t and say t h a t t h e s i t u a t i o n e x i s t s . You j u s t have t o draw your own conclusions based upon what you s e e and you experience. I would say t h a t t h e r e probably was not t h e f r i e n d l i e s t of f e e l i n g s between Chief Judge Wilbur and Denman.

From t h e d i s t r i c t cou r t perspect ive i n eventual ly r e a l i z i n g t h a t t h i s was going t o go up t o t h e c i r c u i t cour t , was t h e r e some f e e l i n g t h a t t h e defendant i n t h i s ca se would have had an a l l y i n Denman? Was i t s o r t o f p red ic t ab le?

No, they never gave i t a thought. The only time t h a t t h a t t h ing ever broke out i n t h e open was i n t h e habeas corpus case r i s i n g ou t of Alcatraz when Judge Denman d i r ec t ed t h e issuance of a w r i t based on a p e t i t i o n t h a t a l ready had been denied by Judge Dal Lemon. Then t h e d i s t r i c t cour t i n banc reversed him and s a i d , "He has no au tho r i ty t o d i r e c t us what t o do o r what not t o do, bu t i n deference t o h i s pos i t i on , we f i n d that there i s no meri t t o h i s order" [ i n E x p a r t e Stidman].

Sharp: That 's a l l of t h e ques t ions t h a t I had f o r Korematsu. I wondered i f you had any e x t r a notes t h a t perhaps you had w r i t t e n t h e r e t h a t you would l i k e t o include.

Zi rpol i : No, a s I s a i d , t h e only observat ion we always have t o keep i n mind i s t h a t t h e Korematsu dec is ion i n t h e [U.S.] Supreme Court was decided on t h e condi t ions t h a t e x i s t e d a t t h e time t h a t Korematsu c o d t t e d t h e offense. I n Mitsuye Endo, t h e o rde r of t h e cou r t ' s r u l i n g was based upon t h e condi t ions e x i s t i n g a t t h e time t h e cour t ru l ed , which was t h r e e o r fou r years l a t e r . I don' t know i f I have the d a t e f o r Mitsuye Endo h e r e o r no t , but i t ' s 323 [U.S.] 383. [pause t o review papers]

Sharp: I th ink i t was '44, bu t I ' m no t su re .

Z i rpol i : Yes, t he re you a r e , October of '44. So by t h a t t ime a l l of t h e condi t ions e x i s t i n g t h a t j u s t i f i e d a c t i o n i n Korematsu no longer ex i s t ed . I f Korematsu had asked f o r r e l e a s e himself from a pr i son camp--if you want t o c a l l a pr i son camp an internment camp--they would have undoubtedly granted i t t o Korematsu o r Hirabayashi o r Yasui .

I n t h e Matter of t h e Applicat ion of Mitsuye Endo f o r a W r i t of Habeas Corpus

Sharp: Then t h e few quest ions t h a t I have about Endo.* How did you go about w r i t i n g t h e "Brief i n oppos i t ion t o t h e p e t i t i o n f o r t h e wr i t of habeas corpus"? That seemed l i k e i t would have been p r e t t y s t r a i g h t - forward because of t h e adminis t ra t ive remedies t h a t she hadn' t exhausted.

*As p a r t of h i s review of t h i s interview, t h e interviewer-edi tor asked Judge Z i rpo l i t o consider s eve ra l add i t i ona l quest ions regarding t h e Endo case. The ques t ions and answers fol low below.

Sharp: Were you aware of t h e d ismissa l of o the r Japanese American Ca l i fo rn i a s t a t e employees, bes ides Endo?

Zi rpol i : No.

Sharp: During t h e Endo cour t proceedings, was t h e i s s u e of f i r i n g these Japanese Americans ever presented o r discussed?

Zi rpol i : No.

Zi rpo l i : Yes, bu t t h a t was t h e bas i c argument and t h a t ' s an argument with which I was f ami l i a r . I had been handl ing habeas corpus ou t of Alca t raz a l l of these previous years . By t h i s time, I had been handl ing them f o r about s i x years , so I was looking f o r a procedural method t o avoid t h e ques t ion e n t i r e l y . The procedural method was t o say t h e r e had been no exhaustion of adminis t ra t ive remedies. But Pu rce l l made a good argument. He made a very good argument. He s a i d t h a t t h e adminis t ra t ive remedy wasn't f r e e l y t h e r e i n t h e f i n a l ana lys i s . She wanted t o go back t o Sacramento. You know t h a t they would have denied h e r the r i g h t t o go back t o Sacramento. It would have been a f u t i l e a c t f o r h e r t o seek h e r r e l ea se , bu t t h e argument aga ins t t h a t was, "You say i t ' s a f u t i l e a c t , but you c a n ' t te l l - - ."

Sharp: Un t i l you t r y .

Z i rpo l i : "--Until you t r y , and you've got t o t ry . " "If they e n t e r an o rde r which i s a proper r e s t r i c t i o n on he r r i g h t of movement o r whatever i t happens t o be , then you a t l e a s t exhaused your remedies. That is t h e proper time t o seek a w r i t . "

Now I th ink t h e cour t has s i n c e bought t h a t argument more than i t bought any o t h e r . Eventually when they argued i n t h e [Ninth C i r c u i t ] cour t of appeals , t h a t is t h e same argument t h a t t h e

Sharp : What were t h e reasons f o r no t s u m m i n g Lieutenant General john DeWitt t o t e s t i f y on behalf of t he army?

Zi rpol i : He was no t needed. You don' t put on new evidence i n a habeas corpus case of t h e na tu re he re involved.

Sharp : Colonel J. F. Watson, Judge advocate, Western Defense Command, apparent ly a t tended t h e hear ings a s an observer . Did he provide any a s s i s t a n c e t o you? Ever make any comments on t h e case?

Z i rpo l i : Yes, h e b r i e f ed me on t h e army procedures involved.

Sharp: Do you r e c a l l any of t h e publ ic f e e l i n g about t h e case?

Z i rpo l i : No.

Sharp: Did you ge t a chance t o t a l k about t h e ca se with Judge Roche? Any sense of h i s p r i v a t e f e e l i n g s ?

Z i rpo l i : No.

Sharp: Do you r e c a l l your r eac t ion t o t h e U. S. Supreme Court ' s overturning of Judge Rochefs ru l ing?

Z i rpo l i : I thought t he Supreme Court was r i g h t .

Z i r p o l i : a t t o r n e y g e n e r a l made, a l though I had no th ing t o do w i t h t h a t b r i e f myself . I was of counse l b u t they wro te t h a t b r i e f .

Sharp: Did you have any i n p u t from M r . Hennessy f o r t h i s b r i e f ?

Z i r p o l i : No, Mr. Hennessy was t h e head man and he j u s t wanted t o b e s u r e I worked hard. No, I g o t some i n p u t from t h e Department o f J u s t i c e . I wouldn' t want t o s t a t e t h a t I d i d n o t g e t i n p u t t h e r e . I g o t i n p u t from t h e Department o f J u s t i c e because o u r approach and o u r s t r a t e g y was discussed. .

Sharp: I n a meeting s o r t o f arrangement?

Z i r p o l i : I n meet ings and c o n v e r s a t i o n s .

Sharp: With whom?

Z i r p o l i : I had meetings w i t h Ed Ennis, s e v e r a l ; p r i m a r i l y w i t h Ed Ennis. I p r i m a r i l y m e t Ennis and [had] some d i s c u s s i o n s back and f o r t h . But they d i d n o t want t o a rgue M i l l i g a n o r m a r t i a l law. I agreed i n t h e f i n a l s e n s e w i t h t h a t , b u t I had s a i d I had t o a rgue i t . The judges r a i s e d t h e q u e s t i o n and hav ing r a i s e d t h e q u e s t i o n , I had t o a rgue i t , s o t h a t I t h i n k t h a t i f t h e Department o f J u s t i c e were t o e v a l u a t e my r o l e , they would s a y t h a t I was very good on t h e t e c h n i c a l a s p e c t s , and maybe n o t a s good a s they might have hoped f o r on some of t h e o t h e r a s p e c t s .

Sharp: You had a r a t h e r broad i n t e r p r e t a t i o n of t h e war powers i n bo th Korematsu and Endo. It 's a de fense o f t h e war measures t h a t were taken.

Z i r p o l i : They i n t e r p r e t e d them s t r i c t l y and I i n t e r p r e t e d them broad ly . I s a i d , "In t imes o f war you c a n ' t p a r t i c u l a r i z e i n t h e same way you could f o r o t h e r measures because Congress cannot f o r e s e e every th ing t h a t is l i k e l y t o occur o r t o happen, and t h e y have t o g i v e broad powers." That was my argument anyway.

When t h e Mitsuye Endo d e c i s i o n came down from t h e [U.S.] Supreme Court , I thought i t was a good d e c i s i o n . I mean I d i d n ' t q u a r r e l w i t h i t . I thought t h a t P u r c e l l and C o l l i n s d i d a good j o b when they were s a y i n g , "You t a l k about a d m i n i s t r a t i v e remedies, b u t i n t r u t h and r e a l i t y they a r e n ' t t h e r e . "

Sharp: And e s p e c i a l l y because s h e was a C a l i f o r n i a s t a t e employee and t h e Personnel Board i n Sacramento probably wouldn ' t have even considered r e h i r i n g h e r r e a l l y .

Z i r p o l i : General DeWitt would n o t have l e t h e r i n t o Sacramento.

Sharp : Yes, s h e couldn ' t have ' l i v e d t h e r e .

Zi rpo l i : She had t o have t h e i r okay wherever s h e went. They would r e l e a s e her but i n \ o r d e r t o go i n t o whatever a r e a was involved, s h e needed t h e okay of t h e m i l i t a r y command.

Sharp: Who was Pu rce l l ?

Z i rpo l i : J i m Pu rce l l , and h e had an a s s o c i a t e , [William E.] F e r r i t e r , he was a genera l p r a c t i t i o n e r i n t h i s a r ea and p a r t i c i p a t e d i n some cr imina l work. How h e got t h i s case, I don ' t know. H e must have known Mitsuye Endo.

Sharp: But i t is c l e a r he wasn't an ACLU lawyer.

Z i rpo l i : No, h e d e f i n i t e l y was no t . H e was a general p r a c t i t i o n e r , but I thought he did a good job. I mean i t was a kind of a job t h a t I wasn't expect ing from him.

Sharp: In t h e records t h e r e is a le t ter t o Judge [Michael] Roche regarding t h e leave r egu la t i ons which appl ied t o Endo--

Z i rpo l i : An a f f i d a v i t .

Sharp: Y e s , and i t s a i d t h a t i t was u se l e s s f o r he r t o apply because s h e couldn ' t r e t u r n t o work i n Sacramento. That was obviously p a r t of P u r c e l l ' s argument.

Z i rpo l i : That was i n response. What happened i s t h e d i r e c t o r of t h e reloca- t i o n cen t e r o r t h e war au tho r i t y center submitted an a f f i d a v i t , which I had requested, i n d i c a t i n g t h a t she could apply f o r l eave . I wanted t o support t h e f a i l u r e t o exhaust admin i s t r a t i ve remedies and t h a t t h i s n o t i c e was given i n t he usual manner, inc lud ing t h e paper i n t h e camp, and s h e knew about it, and a t no t i m e d i d she ever ask f o r l eave , f o r i n d e f i n i t e l eave . So I f i l e d t h a t t o show the re was no exhaust ion and P u r c e l l answered by saying, "This doesn ' t mean anything i n e f f e c t , " and f i l e d a counter s ta tement .

/I /I

Sharp: I wasn't r e a l l y su re . Was i t ~ u d ~ e Roche o r Judge S t . Sure then who wrote t h e opinion?

Z i rpo l i : I n which case?

Sharp : I n Endo.

Z i rpo l i : In Endo i t was Judge Roche and i t w a s very s h o r t . It wasn't an opinion. It was j u s t an order , a s t h e t r a n s c r i p t shows. Le t ' s t ake a look a t i t here . [pause t o review t r a n s c r i p t ] He merely s a i d s h e ' s [ reading] "not e n t i t l e d t o t h e w r i t and i t f u r t h e r appearing t h a t s h e has no t exhausted he r admin i s t r a t i ve remedies under t h e provis ions of t h e execut ive order , i t i s ordered t h a t t h e w r i t of

Z i r p o l i : habeas corpus be . . . den ied , " s igned by Judge Roche. By t h e t i m e o f J u l y 2, 1943, and by t h e t i m e t h e Supreme Court hea rd i t i n November o r October o f '44, a f u l l y e a r had gone by.

Sharp: What do you t h i n k was t h e impact o f Hirabayashi , Korematsu, and Endo?

Z i r p o l i : Well, Hi rabayash i and Yasui and Korematsu merely s u s t a i n e d t h e curfew o r t h e o r d e r d i r e c t i n g you t o p r e s e n t y o u r s e l f i n a n assembly c e n t e r , and they were predica;ed upon c o n d i t i o n s t h a t e x i s t e d a t t h e t i m e . By t h e t ime you got t o Mitsuye Endo, t h e r e was enough language i n t h e Supreme Court s a y i n g t h a t i f t h i s was something t h a t they were p u t t i n g i n t o e f f e c t now, l e t ' s s a y i n ' 43 o r '44 i n Korematsu, we might r u l e d i f f e r e n t l y . Having s a i d t h a t , they then tu rned t o Mitsuye Endo and s a i d , "We look a t t h e problem as i t e x i s t s today and we have t o d e c i d e i t a s o f today and, t h e r e f o r e , as of today we a r e s a t i s f i e d t h a t t h e r e was a n u n c o n s t i t u t i o n a l d e p r i v a t i o n o f t h e r i g h t s of Mitsuye Endo." So t h e s p e c i f i c language made a s u b s t a n t i a l d i f f e r e n c e . P u r c e l l was ve ry c l e v e r i n t h a t r e g a r d because h e r e f e r r e d t o c o n d i t i o n s "now." [pause t o review t r a n s c r i p t ] I a m t r y i n g t o f i n d i t . Maybe i t was i n h i s r e p l y b r i e f , b u t t h e r e was an emphasis on t h e c o n d i t i o n s e x i s t i n g "now." [pause] I am s u r e h e d i d . Hirabayashi r e f l e c t e d v i o l a t i o n o f a "curfew" o r d e r and had no b ind ing e f f e c t i n t h e Endo c a s e . The H i r a b a y a s h i ' c a s e s p e c i f i c a l l y r e s e r v e d t h e q u e s t i o n o f whether f a i l u r e t o r e p o r t f o r t r a n s f e r t o a r e l o c a t i o n c e n t e r was a crime. The c o u r t r e s t r i c t e d d e t e n t i o n t o temporary d e t e n t i o n s o t h a t t h e Supreme Court was t r y i n g t o avo id d e c i d i n g t h e q u e s t i o n o f whether such a r e s t r i c t i o n a p p l i e d a f t e r P e a r l Harbor (1942) would be v a l i d today (1944).

P u r c e l l hung o n t o t h a t argument. Even i n '43 ( t h e d a t e of t h e Hirabayashi d e c i s i o n ) , h e s a i d , "The v a l i d i t y o f even a curfew r e s t r i c t i o n might b e a n o t h e r m a t t e r today. What is t h e s t a t u s o f d e t e n t i o n nown--and h e emphasized t h e word now--"of a l o y a l c i t i z e n beyond t h e exclus ionary." So t h a t was h i s p o s i t i o n .

Sharp : I n t h e s e s o r t s o f c a s e s , t h e s t r i n g o f c a s e s d e a l i n g w i t h t h e Japanese in ternment and t h e m i l i t a r y n e c e s s i t y , i t s t r i k e s m e t h a t you g e t s o r t o f a t i m e warp s i t u a t i o n t h a t t h e m i l i t a r y n e c e s s i t y may o r may n o t e x i s t , bu t t h e r e was a n agreement t h a t i t d i d e x i s t a t a c e r t a i n p o i n t b u t then l a p s e d . The m i l i t a r y n e c e s s i t y evapora ted .

Z i r p o l i : It evaporated g r a d u a l l y . It e x i s t e d f o r q u i t e a w h i l e because we were l o s i n g t h a t war. A f t e r a l l , w h i l e t h i s was go ing on , P e a r l Harbor--they took Hong Kong , they took Singapore, they invaded Borneo, they took t h e P h i l i p p i n e s e v e n t u a l l y , they d e f e a t e d us a t Wake I s l a n d . I have f o r g o t t e n t h e name o f t h e bay. They had d e f e a t e d o u r f l e e t i n ano ther b a t t l e . There had been some so-ca l l ed s h e l l i n g o f Santa Barbara and some ba l loons a l l e g e d l y l a n d i n g on t h e Oregon c o a s t . A l l o f t h e s e t h i n g s were t r a n s p i r i n g and f o r t h e f i r s t s i x

Zirpol i : o r e igh t months of t h e war, we were lo s ing , we weren't winning i n t h e Pac i f i c .

Sharp : Now, f o r me, i t is genuinely d i f f i c u l t t o s e e t h a t and t o understand t h e pressures and t h e r e a l i t y of t he feeling--

Zi rpol i : Yes, t h a t i s t h e grea t d i f f i c u l t y , i f you d i d n ' t l i v e through t h e scary period and t h e scary headl ines and a l l of t h e th ings t h a t you were ge t t i ng , b i g headl ines of,llSan Francisco Bay i s being Mined." "Mining San Francisco Bay." That means you were a f r a i d t h a t sub- marines were going t o come i n , o r they were going t o bomb the br idge, and somebody would t a l k and they would give you a headl ine about t h e s h e l l i n g of Santa Barbara--

Sharp: Goleta Bay--

Zi rpol i : --Or ba l loons were landing on t h e Oregon coas t [chuckles] and then we were l o s i n g these b a t t l e s . Boy, we weren't playing up our l o s s e s a s g r e a t l y i n a sense a s we should, our l o s s e s i n t h e Pac i f i c . When you consider a l l of t h e a r ea t h a t t h e Japanese took over i n t he Pac i f i c , they had taken over Hong Kong and invaded China and taken over Singapore and i n t o Borneo, you've got a p r e t t y good idea of how f a r t h e i r opera t ions had gone.

Sharp: Oh, yes , i t was a very ex tens ive a rea .

Z i rpol i : And a l s o t h e problems of f i f t h column a c t i v i t y which were evident i n Europe.

Sharp: Are t h e r e o t h e r comments t h a t you would l i k e t o make?

Zi rpol i : No, I th ink t h a t w e have p r e t t y wel l exhausted i t .

I V THE INTERIM YEARS, 1944-1961 ///I

Tokvo Rose and Other P r i sone r o f War Cases

Sharp: This in te rv iew today i s r e a l l y about what seems l i k e s o r t of an i n t e r i m per iod i n your l i f e t o m e . It i s a mixture of p o l i t i c a l a c t i v i t i e s , p r i v a t e p r a c t i c e and work on t h e [San Franc isco] Board of Supervisors . I thought w e might s t a r t by t a l k i n g about your r ep re sen t a t i on of Major [Wallace E . ] Ince. I j u s t wanted t o be s u r e t h a t your r ep re sen t a t i on of him was a s p a r t o f t h e a c t u a l Tokyo Rose t r i a l . Is t h a t r i g h t ?

Z i rpo l i : Not n e c e s s a r i l y a s p a r t o f t h e a c t u a l Tokyo Rose t r i a l . Major Ince was then under i n v e s t i g a t i o n on t h e s u b j e c t o f pos s ib l e indictment by t h e United S t a t e s a t t o rney f o r t h e o f f ense of t r e a son because Major Ince became a broadcas te r f o r t h e Japanese i n Engl ish, and presumably would b e broadcas t ing wi th American t roops a s h i s t a r g e t , j u s t a s Tokyo Rose was.

Major Ince had been captured and taken p r i sone r and he was he ld i n t h e p r i son camp. I have fo rgo t t en t h e name of t h e camp now. There w e r e q u i t e a number o r Americans who w e r e t h e r e . I n f a c t , dur ing t h e Tokyo Rose t r i a l , many of them w e r e c a l l e d a s wi tnesses . I remember t h a t w e a l l had a reunion a t a r e s t a u r a n t i n San Francisco i n Chinatown i n which they r e l i v e d some of t h e i r days i n t h e Japanese p r i son camps.

Major Ince was taken ou t and he was obviously under a t h r e a t of death i f h e d i d n ' t comply. So h e would broadcast and he would t a l k about s u b j e c t s of cu r r en t i n t e r e s t , bu t h e was a l s o a very i n t e l l i - gen t man and h e knew t h a t i f could convey some messages i n t h e course of h i s broadcast t h a t might be h e l p f u l , he r e a l i z e d i t would pay him t o do s o . So h e showed an i n t e r e s t i n s p o r t even t s , p a r t i - c u l a r l y t enn i s , and t h a t gave him an oppor tun i ty t o comment about t h e weather--"this i s , a b e a u t i f u l day f o r tennis1'--which h e had hoped would be a s i g n a l t o t h e American fo r ce s t h a t t h i s is t h e time t o come over f o r some bombing.

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Zirpol i :

Sharp :

I n a l l events , h e was never i nd i c t ed , of course, and they d id c a l l him a s a witness i n t h e Tokyo Rose case, j u s t a s they d id a l l of t h e o t h e r prisoners--not a l l of them, bu t those o t h e r p r i sone r s whom they brought t o t h e West Coast t o t e s t i f y . Now, Wayne Co l l i n s was t h e defense a t to rney f o r Tokyo Rose. I am t r y i n g t o t h ink of t he name of t h e a t t o rney who prosecuted. H e w a s a s p e c i a l p rosecutor ou t of t h e Department of J u s t i c e who came down t o prosecute on ,behalf of t h e government.

Tom DeWolfe and James Knapp.

Yes, t h a t ' s r i g h t .

Your r ep re sen t a t i on of him--what d id i t c o n s i s t of then?

I merely accompanied him t o t he courtroom and s a t by whi le he t e s t i f i e d and was t h e r e t o p r o t e c t h i s i n t e r e s t t o whatever degree was necessary.

How would i t come about t h a t you were r ep re sen t ing him i n s t e a d of somebody e l s e ?

Because h e came t o see m e t o r e t a i n him.

Did h e know about you from somebody e l s e ?

Zi rpol i : Oh, I don ' t r e c a l l t h e circumstances t h a t caused him t o come t o my o f f i c e . H e came t o my o f f i c e and asked m e t o r ep re sen t him and t o l d m e h e was under i n v e s t i g a t i o n and he f e l t he should have the b e n e f i t of a lawyer.

Sharp: What were t h e main i s s u e s involved i n r ep re sen t ing him?

Z i rpo l i : The main i s s u e involved i n represen t ing him was t o i n d i c a t e t h a t he was under coercion and t h r e a t of death pr imar i ly , and t h a t i n h i s broadcast he was at tempting t o b e b e n e f i c i a l t o whatever degree p o s s i b l e by t h e na tu re of h i s broadcast i f they had charged him. They never d id charge him.

Sharp : I read about him and t h e t r i a l i n t h e book Tokyo Rose.* Apparently he t e s t i f i e d t h a t Iva Toguri dlAquino, who was considered t o be Tokyo Rose, had a s s i s t e d him wi th food and medicine. I wondered i f you could t a l k more about what h i s r o l e was a s a defense wi tness .

*&say0 Duus, Tokyo Rose, Orphan of t h e P a c i f i c (New York: Harper and Row, 1979).

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

I c a n ' t t e l l you more than h i s desc r ip t ion of t h e circumstances e x i s t i n g a t t h e time. Of course, t h e r e was more than one Tokyo Rose i n a sense. She [Iva Toguri dlAquino] got t h e name and she was ind ic t ed but t h e r e were o the r s . She had t h e necessary background and they could qua l i fy h e r a s a rad io commentator.

The f e e l i n g of t h e author of t h i s p a r t i c u l a r book was t h a t Iva had been p r e t t y much used a s a scapegoat because the re were o t h e r people, o t h e r women, who c e r t a i n l y could have been Tokyo Rose, but t h e r e was no one p a r t i c u l a r Tokyo Rose and t h a t she was s o r t of g e t t i n g i t a l l . Did you th ink s o a t t h e time?

I thought p r e t t y much so , yes , a t t h e time, I r e a l l y d id . I mean I s a i d , "They pick t h i s g i r l o u t and why?"

Do you know who represented Norman Reyes? Do you remember him a t a l l ?

No.

He was another one of t h e defense wi tnesses . He had been imprisoned wi th Major Ince and he seemed t o get--at l e a s t from t h e book--a r e a l l y tough going over by Tom DeWolfe and James Knapp. H i s s t o r y was p r e t t y much d i sc red i t ed by some of t he FBI inves t iga t ion . I wondered i f you remembered very much about t h a t , because i t seemed f a i r l y s t r i k i n g .

No, what was h i s . name again?

Norman Reyes [ s p e l l s name].

No, t h e name sounds f ami l i a r . He may be one of those t h a t was t h e r e when we a l l met f o r dinner .

Do you remember very much about Judge [Michael] Roche a t a l l ?

Judge Roche?

Yes, h e was chief judge of t h e Northern D i s t r i c t Court then and was the judge who t r i e d t h i s case.

Judge Roche was a very passive judge on t h e bench very f rankly and he was. thetype t h a t would permit t h e evidence from both s i d e s , so t o speak, without , l e t us say , any scho la r ly d i s t i n c t i o n a s t o types of evidence. He was n o t a l e g a l scholar , but he was a man of p r e t t y good judgment and common sense. But t h a t ' s t h e kind of a t r i a l where both s i d e s kind of open up.

Sharp: I wonder i f you r e c a l l very much about h i s i n s t r u c t i o n s t o t h e jury.

No. Zi rpol i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zirpol i :

Sharp :

There was some f e e l i n g t h a t h e r e a l l y undercut t h e defense by h i s i n s t r u c t i o n s t o t h e jury, l ay ing ou t p r e t t y s t r i c t i n s t r u c t i o n s so t h a t they could seem t o only come t o one conclusion, t h a t she was a U.S. c i t i z e n a t t h e time of h e r of fense and t h a t she d id indeed c o d t t reason .

No, I don't r e c a l l t h e i n s t r u c t i o n s , bu t a t r i a l of t h a t cha rac t e r , i t could very well b e t h a t t h e a c t i v i t y of o the r s becomes immaterial and a l l you a r e i n t e r e s t e d i n i s t h e a c t i v i t y of j u s t t h i s young lady.

Does anything s t and ou t a s s o r t of a major impression of t h e whole t r i a l and a l l t h a t went on?

Nothing o t h e r than t h a t I rode down t o my o f f i c e once with h e r i n the marshal's van when they were tak ing h e r back t o j a i l . [ laughs]

Did you t a l k t o he r?

Oh, yes , bu t I don't remember what t h e conversat ion was. We were both i n t h e van, t h e marshal 's van. The marshal 's van was j u s t l eav ing when I was leaving t h e courthouse myself and they o f f e red me a r i d e , s o I went along wi th them. They took her down t o t h e o l d Hall of J u s t i c e on Kearny S t r e e t and my o f f i c e was on Montgomery one block away.

Was the re anything p a r t i c u l a r l y d i s t i n c t i v e about he r?

Did s h e seem v i l l a i n o u s or--?

Did she?

Yes.

Oh, no, she d idn ' t c r e a t e any such impression a t a l l . I mean she was a f f a b l e and made no complaints.

It is i n t e r e s t i n g t o have you s e e t h e U.S. a t t o rney ' s o f f i c e from the o the r s i d e . I th ink I r e c a l l t h a t Frank Hennessy made one of t h e major summations, I guess, a t t h e end of the t r i a l . I wonder what p a r t i c u l a r impressions you had from see ing M r . Hennessy and see ing theU.S . a t t o rney ' s o f f i c e opera te from t h e o the r s i d e s i n c e you were now i n p r i v a t e p rac t i ce .

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

No, o the r than your normal observat ions t h a t anyone would make. I mean t h e prosecutor has one ob jec t ive and t h a t i s t o present t h e evidence t h a t would i n d i c a t e g u i l t beyond a reasonable doubt. By reason of your t r i a l experience, you have a p r e t t y good idea what t he defendant 's counsel ' s r o l e i s and when you leave t h a t o f f i c e , you j u s t t ake on t h e r o l e of defense counsel.

The b e n e f i t of being a prosecutor i s t h a t you l e a r n your r u l e s of evidence and you l e a r n your cr iminal law and you a r e b e t t e r a b l e t o u l t imate ly apply i t even a s defense counsel.

There were some for ty- f ive o r s o defense witnesses , h a l f of whom I th ink had j u s t a f f i d a v i t s t h a t they s e n t i n , bu t a p r e t t y l a r g e number of defense witnesses . I wondered i f t he re was a c e r t a i n amount of meeting with t h e o t h e r lawyers ahead of time t o plan the s t r a t e g y of h e r defense.

Not p a r t i c u l a r l y t h a t I r e c a l l . Of course, t h e r e were some deposi- t i o n s taken i n Japan.

Oh, is t h a t r i g h t ?

Yes, and Wayne Col l ins t r ave l ed t o Japan t o p a r t i c i p a t e i n those deposi t ions. You have t o ge t approval of t h e cou r t , which was provided f o r , and h i s expenses were paid t o go t o Japan f o r t h a t purpose.

Are the re o the r th ings t h a t s t r i k e you about t h i s t r i a l t h a t seem worth commenting on?

No, t he re weren't any, bu t I mean the re i s no quest ion t h a t she broadcast . The only quest ions t h a t a rose were t h e condi t ions and the circumstances under which she broadcast . They were t ry ing t o e s t a b l i s h t h a t she was forced t o do so under t h r e a t . That is b a s i c a l l y a s I remember i t .

There was another i n t e r e s t i n g case t h a t you j u s t gave a few notes on. That was t h i s pr i soner of war case, t he I t a l i a n rancher.

That is not p a r t i c u l a r l y s i g n i f i c a n t . It i s i n t e r e s t i n g . What happened was t h a t toward t h e end of t h e war t he re were I t a l i a n pr i soners a t Val le jo and they were given t h e weekend o f f . They would come t o San Francisco, some of them, t o v i s i t r e l a t i v e s o r f r i e n d s of people i n t h e I t a l i a n community. Then they would r e t u r n t o t h e camp. This man went down t o Half Moon Bay t o v i s i t a farm the re and he remained. He never went back t o t h e camp and t h e owner of t he ranch was then ind ic t ed f o r harboring a pr i soner of war, and we were going t o t r i a l .

Zi rpo l i : The judge i n t h e case was Judge J.F.T. O'Connor of southern Ca l i fo rn i a , Los Angeles, who was a former c o n t r o l l e r genera l o f t h e United S t a t e s and a Roosevelt appointee. I had m e t him i n 1932 and I was very c l o s e t o him through t h e years . H e became a candida te f o r governor and A.P. Giannini asked me t o he lp him because A.P. was on f r i e n d l y terms wi th s e v e r a l of t h e candidates a t t h e t i m e . So, I was a l s o c l o s e t o him i n t h a t r e spec t .

When t h e ca se was c a l l e d and I appeared w i t h my c l i e n t , he [O'Connor] d idn ' t even show any s i g n of recogni t ion [ laughs] , which i s understandable.

I was ready t o go t o t r i a l on Monday, bu t Sunday my c l i e n t t o l d m e t h a t he knew t h a t my defense was t h a t he d i d n ' t know t h a t h i s gues t was a p r i sone r o f war. He then t o l d m e t h a t he had read about i t i n t h e I t a l i a n papers. So I couldn ' t l e t him commit per jury . W e went i n and I s a i d , ''We a r e j u s t going t o have t o plead g u i l t y , t h a t ' s a l l . "

So h e en te red a p l ea of g u i l t y and then t h e judge r e f e r r e d i t t o t h e probat ion o f f i c e r . The proba t ion r epo r t came i n two o r t h r ee weeks l a t e r , I don ' t r e c a l l when. I submitted a w r i t t e n s ta tement t o t h e probat ion o f f i c e r a s w e l l which was t o be read by t h e judge, of course, and when w e appeared and he i nd i ca t ed t h a t he had read t h e probat ion o f f i c e r r epo r t , I s a i d I had read i t , too, and I thought i t was t r u e and c o r r e c t i n a l l r e spec t s .

H e [O'Connor] then commented from t h e bench, "This man does no t need probat ion. Except f o r t h i s o f fense , he has l i v e d an exemplary l i f e , a hard-working farmer t h a t ha sn ' t been t o t h e c i t y i n t he p a s t twenty years . Therefore, t he re i s no need f o r probat ionary super- v i s i o n . A $250 f ine ."

That ended t h e case, which I thought was a very j u s t and com- pass iona te ending. It was a r e a l understanding of t h e judge. It would have been r i d i c u l o u s t o send him t o j a i l . It wouldn't have served any u s e f u l purpose.

Sharp: Were t h e r e o t h e r s o r t s of cases l i k e t h i s involving t h e var ious p r i sone r s o.f war?

Zi rpol i : There was one German who was prosecuted by t h e a s s i s t a n t U.S. a t to rney , William Licking. I don ' t remember too much about t h a t t r i a l . William Licking was t h e a s s i s t a n t U.S. a t to rney t h a t prosecuted. I remember t h e fel low got a ten-year sentence. He had engaged i n sone type of sabotage o r a c t of sabotage.

Comments on P o l i t i c a l A c t i v i t i e s ; Changes i n North Beach

Sharp: I want t o ask you about t h e ind igent defendant program t h a t was e s t ab l i shed , i n 1951, but a r e t h e r e o the r s o r t s of h igh l igh t s of your p r i v a t e p r a c t i c e t h a t you would l i k e t o put ' i n he re and t a l k about?

Z i rpo l i : Do you want m e t o t a l k on t h e ind igent defendant program f i r s t ?

Sharp: No, l e t ' s see i f we can ge t i n some o the r h i g h l i g h t s f i r s t .

Z i rpo l i : During t h e per iod , you have t o remember, from '32 u n t i l I went on t h e bench, I was p o l i t i c a l l y a c t i v e , going back t o my p a r t i c i p a t i o n with A.P. Giannini i n t h e '32 campaign, a s s t a t e pres ident of t h e Young Democrats i n 1935 and 1935, and Roosevelt de lega te t o t h e Democratic na t iona l convention i n '36, and t h e r e a f t e r I would be se rv ing i n one capac i ty o r another . I was nor thern Ca l i fo rn i a campaign manager f o r Adlai Stevenson i n both campaigns.

The most i n t e r e s t i n g aspec t of t h a t p o l i t i c a l e r a i s t h a t i n 1948, I had t h e f e e l i n g t h a t [Harry] Truman could no t be re-elected. I discussed t h i s wi th William Malone, t h e Democratic pa r ty l e a d e r i n San Francisco, and s t a t e d t o him t h a t I thought i t would be b e t t e r f o r m e t o ge t some backing f o r [Dwight] Eisenhower i n t h e Democratic par ty s o t h a t i f Truman were not t h e nominee, w e wouldn't be replaced by o t h e r Democratic l e a d e r s .

I then s e n t a l e t te r t o Sacramento and reserved two names, Cal i forn ians f o r Eisenhower and Ca l i fo rn i a Democrats f o r Eisenhower. A t t h e t o t a l c o s t of $4--$2 each--I thereby preserved these names f o r a per iod of t h i r t y days. I f e l t t h a t t h i s would give m e ample t i m e t o explore t he p o s s i b i l i t y of General Eisenhower becoming t h e Democratic candidate .

So I wrote a le t ter t o General Eisenhower and received a response from him t h a t he wasn't i n t e r e s t e d i n being a candidate f o r p r e s iden t , a t t h a t t i m e a t l e a s t . Ear l Behrens was t h e [San Francisco] Chronicle p o l i t i c a l writer a t t h e t i m e and h e phoned m e when h e learned about t h e r e se rva t ion of t h e names and asked m e i f I would contac t him and l e t him know what General Eisenhower sa id .* I never d id , bu t t h e r e

*See ~ e h r e n s ' s own notes on Eisenhower i n "Gubernatorial Campaigns and Par ty I ssues : A P o l i t i c a l Reporter ' s V i e w , 1948-1966," i n Reporting from Sacramento, Regional Oral His tory Off ice , The Bancroft Library, Universi ty of Ca l i fo rn i a , Berkeley, 1981.

Zi rpo l i : was a fe l low i n New England who d i d t h e same th ing , wrote a l e t t e r , and when h e received h i s response, h e caused i t t o be turned over t o t h e press and i t became a cen te r two-full-page spread i n L i f e magazine.

A t t h a t time, I a l s o went down t o Santa Barbara t o speak a t a p o l i t i c a l caucus a t which r ep re sen ta t ives of t h e various candidates were inv i t ed t o speak. There I spoke on behalf of General Eisen- hower a s a Democratic candidate . Then we were sub jec t t o i n t e r ro - ga t ion from t h e audience. I remember one of t h e ques t ions t h a t I was asked r e l a t e d i n p a r t t o h i s l i b e r a l views and h i s a t t i t u d e toward blacks. I had t h e answers t o those ques t ions . There hadn' t been any d iscr imina t ion i n h i s army conduct. A l l t h e orders t h a t he had i ssued c l e a r l y ind ica ted t h a t t h e r e was no such d iscr imina t ion . I s e n t a copy of my speech t o t h e general and I received a thank you l e t t e r .

But f e e l i n g a s I d id , I got o t h e r people i n t e r e s t e d i n Eisenhower a s a Democratic candidate inc luding J i m y Roosevelt (President Roosevelt 's son) , s o t h a t when t h e Ca l i fo rn i a de lega t ion went back t o t h e Democratic na t iona l convention, t h e r e was a group of them who were d iscuss ing t h e poss ib l e nomination of Eisenhower. That group was l ed by Jimmy Roosevelt. I th ink t h e r e were about e i g h t o r t e n of them i n t h e de lega t ion . There was a l i t t l e hard f e e l i n g t h a t was engendered i n p a r t t he re . But, of course, I had protected my bases--my p o l i t i c a l bases--with my d iscuss ions with William Malone i n advance.

A s I say , t h a t was t h e '48 campaign. Then i n '52 we had [Adlai] Stevenson. He came ou t h e r e and we had a tremendous r a l l y f o r him i n North Beach, probably t h e b e s t p o l i t i c a l r a l l y they ever had i n North Beach. We blocked o f f Grant Avenue and used Washington Square. There was a lady, Rena Nicolai , who operated a r e s t a u r a n t on Grant Avenue, La Pantera . She was providing food and snacks f o r everybody t h a t a t tended t h e r a l l y . They had b ig , huge bowls of s p a g h e t t i ou t t he re t h a t they were serving. Then Stevenson had lunch i n t h e r e s t au ran t and they took h i s p i c t u r e e a t i n g spaghe t t i . It became a r a t h e r c l a s s i c p i c t u r e i n a way. I t wasn't used i n t h e campaign, bu t she had an enormous enlargement made of i t and posted i t up i n h e r r e s t au ran t .

Sharp: It was p r e t t y good f o r business , I imagine. [ l augh te r ]

Zi rpol i : This r e s t au ran t became a ga ther ing p lace f o r most of t h e Democratic l eade r s and pa r ty workers.

Sharp: Were t h e r e a l o t of s t r a t e g y se s s ions?

Zi rpol i : Oh, no, those were mostly s o c i a l . We would go t h e r e and e a t and dr ink and enjoy ourse lves .

Sharp: Now, t h i s was '52 o r '56 because--

Z i rpo l i : In '52 was t h e b i g one. It was t r u e i n '56 a s wel l ; '56 was much more d i f f i c u l t i n a s ense beeause he re you had t h e p re s iden t [Eisenhower], an incumbent. I n '52, you had h igh hopes. We had Stevenson r i d e t h e c a b l e c a r and have h i s p i c t u r e taken and p i c t u r e s o f . t h a t na ture . We had p i c t u r e s of t h e Democratic donlcey and t h e candidates . I remember one t h a t I have got somewhere with m e and Ben Swig of t h e Fairmont Hotel. [ laughs]

Sharp: Oh, g r e a t , I would love t o have a copy of t h a t i f you can d i g i t out .

What persuaded you t o work f o r Stevenson?

Z i rpo l i : I was a Democrat, a l o y a l Democrat. I t would take a g rea t dea l t o persuade m e n o t t o support a Democratic candidate . I had no phi losophica l a f f i n i t y wi th t h e Republican pa r ty and t h e i r pos i t i on . I was a young l i b e r a l !

Sharp: I j u s t wondered i f you knew him persona l ly .

Z i rpo l i : No, t h e f i r s t t i m e I persona l ly m e t him was when he came here f o r t h e campaign. I enjoyed meeting him. I thought he was a very f i n e gentleman. H e was a n i ce person t o t a l k t o . But o t h e r than t h a t , I had no r e a l connection wi th him.

Sharp: Was your main func t ion i n t h e campaign a s one of t h e lower l eve l o rganizers ?

Zi rpo l i : I was s o r t of an o rgan ize r i n a s ense f o r nor thern Ca l i fo rn i a . I would make speeches throughout nor thern Ca l i fo rn i a , contac t people i n t h e var ious communities, t h e county chairmen i n t h e var ious count ies throughout nor thern Ca l i fo rn i a , and prepare f o r speakers t o go the re o r f o r Adlai Stevenson t o go the re , and th ings of t h a t charac te r .

This i s one way i n which I got t o know C l a i r Engle who was l a t e r e l ec t ed t h e United S t a t e s Senator . I served a s h i s nor thern Ca l i fo rn i a campaign manager i n a way.

Of course, I was a l s o endeavoring t o i n t e r e s t t h e I t a l i a n community i n vo t ing Democratic. The I t a l i a n community had been h i s t o r i c a l l y Republican i n i ts p o l i t i c a l makeup. I remember making a speech i n 1936 a t t h e Columbus Civic Club i n which I s a i d t h a t t h i s was t h e l a s t s t ronghold of t h e elephant and t h a t t he elephant wouldn't be around any more. [ l augh te r ]

Sharp: Was t h a t t r u e ?

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

~ i r p o l i :

Z i r p o l i :

Sharp :

Z i r p o l i :

That was a p o l i t i c a l group. The Columbus C i v i c Club was organized i n 1931 t o assist Mayor IAngelo] Rossi i n h i s campaign f o r mayor. I p a r t i c i p a t e d i n t h e o r g a n i z a t i o n o f t h e Columbus Civic Club and i n t h a t campaign. I wro te t h e c o n s t i t u t i o n and t h e bylaws of t h e c lub .

That was p r i m a r i l y a p o l i t i c a l c l u b ?

That was t o become a n Ital ian-American p o l i t i c a l a r m . I n o t h e r words, i t would be a p l a c e where c a n d i d a t e s would appear o r b a l l o t p r o p o s i t i o n s would be d i s c u s s e d . Then t h e Columbus Civ ic Club would v o t e on them and endorse c a n d i d a t e s o r i s s u e s .

Was t h e r e a real t u r n i n g around of t h e I t a l i a n community?

No. I n San Francisco, I would s a y , t h a t I t h i n k i t is s t i l l predominantly Republican. Of a l l of t h e e t h n i c groups, i t is probably t h e c l o s e s t one t h a t s t i l l h a s s t r o n g Republican t i e s .

Of course , as I s a y , then we were i n t h e '56 campaign and t h e n came t h e '60 campaign. But p r i o r t o t h e '60 campaign, I had b r e a k f a s t w i t h Senator [John F.] Kennedy a t t h e Fairmont Hotel . H e i n v i t e d m e t o b r e a k f a s t and asked m e t o commit myself t o him f o r t h e 1960 e l e c t i o n . I t o l d him a t t h e t i m e I would c o n s i d e r i t . I was a s u p e r v i s o r a t t h a t t i m e of t h e c i t y and county.

Then, o f course , when t h e t i m e came, I decided I would suppor t Kennedy f o r t h e 1960 e l e c t i o n . Red Fay [ s p e l l s name], who became u n d e r s e c r e t a r y o f t h e navy f o r Kennedy and had been one o f Kennedy's shipmates d u r i n g t h e war, and I became co-chairmen f o r t h e Kennedy campaign i n San Franc i sco . Following t h a t 'campaign and t h e e l e c t i o n of P r e s i d e n t Kennedy, I t h e n wrote a le t ter t o t h e p r e s i d e n t , t o h i s b r o t h e r Robert Kennedy, t o Clair Engle, and t o t h e s tate chairman [Roger Kent] of t h e Democratic p a r t y s t a t i n g t h a t I would b e i n t e r e s t e d i n being named a United S t a t e s d i s t r i c t judge, and I w a s a d v i s i n g them of t h i s f a c t e a r l y because I d i d n o t want i t t o b e s a i d at some later date--"We d i d n o t know you were i n t e r e s t e d . " Of course , i n ' 6 1 I was appointed t o t h e bench.

Now, d u r i n g a l l o f t h e s e same y e a r s , of course , I was a c t i v e i n t h e I ta l ian-American community.

Righ.t, I was going t o a s k you.

That s t a r t e d i n 1928. I n 1928, I was admi t t ed t o p r a c t i c e and I jo ined t h e Order o f t h e Sons of I t a l y . I n f a c t , my f i r s t c a s e came from a n o f f i c e r of t h e Order o f t h e Sons o f I t a l y . I a l s o jo ined t h e I t a l i a n Mutual B e n e f i t S o c i e t y , a s o c i e t y t h a t was organized i n 1858 w i t h a c h a r t e r from t h e s t a t e l e g i s l a t u r e . It may

Z i r p o l i : be t h e o l d e s t mutual b e n e f i t s o c i e t y i n C a l i f o r n i a . It is s t i l l a c t i v e . It was a d i f f i c u l t s o c i e t y t o g e t i n t o because they j u s t p e r m i t t e d r e l a t i v e s and Genoese t o become members, b u t anyway, they accepted m e and my dues were then $1 a month. They have remained $1 a month s i n c e 1928 t o t h i s day. I have a p l o t i n t h e cemetery by reason t h e r e o f . I am e n t i t l e d t o c e r t a i n h o s p i t a l b e n e f i t s , medical b e n e f i t s , and p r e s c r i p t i o n b e n e f i t s f r e e , which I have no t e x e r c i s e d .

Th is i s an i n d i c a t i o n of t h e c a p a c i t y of t h e s o c i e t y and t h e a b i l i t y o f i ts d i r e c t o r s t o c a p i t a l i z e on t h e i r s m a l l investments . Of 'course , t h i s is a n o n p r o f i t s o c i e t y , s o t h e money cou ld never go t o any o f t h e members. So even though t h e s o c i e t y may be worth s e v e r a l m i l l i o n d o l l a r s today and h a s a ve ry s m a l l membership of t h r e e t o f o u r hundred, t h e only b e n e f i t you r e a l l y u l t i m a t e l y g e t i s your p l o t i n t h e cemetery.

That was t h e beginning o f my Ital ian-American a c t i v i t y . I immediately jo ined t h e Ital ian-American Chamber of Commerce. I e v e n t u a l l y became t h e a t t o r n e y f o r t h e I tal ian-American Chamber o f Commerce and toward t h e l a t e r y e a r s ( i n f a c t , t h e y e a r s j u s t p reced ing my coming o n t o t h e bench) , I was p r e s i d e n t o f t h e I t a l i a n - American Chamber of Commerce, which was, i n c i d e n t a l l y , o rgan ized i n 1885. I was a l s o a t r u s t e e o f t h e I t a l i a n School, which was organized i n 1885. I had jo ined t h e Italy-America S o c i e t y a n d ' s e r v e d a s a d i r e c t o r and e v e n t u a l l y as t h e p r e s i d e n t o f t h a t s o c i e t y . I was a member o f t h e Leonardo d a Vinc i S o c i e t y and s e r v e d as a d i r e c t o r . I e v e n t u a l l y became and se rved as grand venerab le of t h e Order o f t h e Sons o f I t a l y f o r t h e e n t i r e s tate of C a l i f o r n i a and a t t h a t t i m e , we had approximately f i f t y - f i v e lodges s c a t t e r e d throughout t h e s t a t e .

Sharp: Th is speaks of q u i t e a l a r g e Ital ian-American p o p u l a t i o n i n C a l i f o r n i a .

Z i r p o l i : At t h a t t i m e , I c a n ' t t e l l you what t h e percentage was, b u t you have t o b e a r i n mind t h a t a t t h a t t ime, i n 1928, about 1 6 percen t o f t h e popula t ion of San Franc i sco was I t a l i a n . I f t h e c a n d i d a t e had t h e conf idence o f t h e I t a l i a n peop le and p a r t i c u l a r l y i f h e happened t o b e o f I t a l i a n o r i g i n , you were p r e t t y much assured of n e a r l y 100 p e r c e n t o f t h a t 16 p e r c e n t v o t e . So i t became a v e r y i n f l u e n t i a l v o t i n g b l o c .

Sharp: W h e n M a y o r R o s s i w a s a c a n d i d a t e , t h a t w a s a p r e t t y i m p o r t a n t n e t - work, I imagine.

Z i r p o l i : Oh, y e s , h e had t h a t v o t e s o l i d .

Sharp: For ,twelve yea r s , he w a s mayor. ,

Zi rpo l i : It could be; I don ' t remember whether he was twelve--it may very we l l be t h r e e terms, yes.

My f i r s t i n t e r e s t i n Italian-American a f f a i r s s t a r t e d a t t h e Univers i ty of C a l i f o r n i a when I w a s p r e s iden t of t h e I t a l i a n c lub , I1 Circo lo I t a l i a n o , and then I a l s o became p re s iden t o f Pi Mu I o t a , t h e I t a l i a n Honor Soc ie ty , and I moved r i g h t from t h a t c i r c l e i n t o these I t a l i a n s o c i e t i e s a f t e r my graduat ion, and I d id a l o t of speaking. I would speak a t I t a l i a n func t i ons . I made s e v e r a l speeches i n Washington Square. I made a Columbus Day speech i n Sacramento w i t h then Governor [James] Rolph and I r e c a l l r i d i n g i n t h e Columbus Day parade w i t h him. ( I may have mentioned t h i s before . ) He w a s i n t h e c a r ahead of m e , an open c a r , and w e rode along J S t r e e t , o r , I have f o r g o t t e n which s t r e e t i t w a s i n Sacramento. There were some houses of p r o s t i t u t i o n on t h e upper f l o o r s and t h e l a d i e s would a l l b e looking o u t t h e window a t t h e parade. He would t i p h i s h a t t o t h e l a d i e s a s h e went by. [ l augh te r ] Somehow o r o t h e r t h a t impressed m e . A s I say , t h i s was my Italian-American a c t i v i t y .

Now a l l o f t he se a c t i v i t i e s I maintained u n t i l I came on t h e bench. Then a f t e r I came on t h e bench, I ceased my p o l i t i c a l a c t i v i t y .

My Italian-American a c t i v i t y , I cont inued and t o a degree cont inue t o t h i s day. I was a l s o p r e s iden t of I1 Cenacolo (which means " l a s t supper"), which was organized i n 1929, and t h a t was a luncheon c lub . It s t a r t e d o u t w i t h c lub rooms i n t h e Fairmont Hotel which w e gave up dur ing t h e war because t h e r e was a housing sho r t age f o r t h e m i l i t a r y , s o we never d i d g e t a permanent home t h e r e a f t e r . But t h e c lub would d e f i n i t e l y meet once a week f o r luncheons.

It was composed of I t a l i a n bus iness and p ro fe s s iona l men p r imar i l y . We had a number of i l l u s t r i o u s members. I could po in t t o A.P. . Giannini by way of i l l u s t r a t i o n o r Emilio Segre ( t h e Nobel l a u r e a t e ) a s a f u r t h e r i n d i c a t i o n of t h e makeup. So w e had ord inary businessmen and, a s I say , p ro fe s s iona l men. It was about a s r e p r e s e n t a t i v e of t h e community a s you could g e t , t h e I t a l i a n - American community, a l though you d id n o t have t o be of I t a l i a n o r i g i n t o become a member because we have a s u b s t a n t i a l number of members who a r e non- I ta l i ans who have a n i n t e r e s t i n I t a l i a n c u l t u r e .

The purpose of t h e luncheon was t o hea r from speakers on c u r r e n t s u b j e c t s every week and to e n t e r t a i n and hear from I t a l i a n v i s i t o r s . I f some I t a l i a n s e n a t o r o r deputy o r m i n i s t e r v i s i t e d San Francisco, w e always t r i e d t o g e t him a t our c lub f o r luncheon and t o speak.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp:

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Was t h i s a lmost e n t i r e l y men then?

A l l male? E n t i r e l y male [ l aughs] excep t f o r t h e opera o u t i n g s . We would g i v e a n opera o u t i n g i n October o f each y e a r a t which we would i n v i t e t h e d i r e c t o r o f t h e opera of San Franc i sco and a whole group of opera s t a r s . We'd have them a l l up t h e r e a t t h e Louis M a r t i n i winery and ranch f o r a b i g Sunday o u t i n g . It was a beau t i - f u l o u t i n g . We would have one o f t h e major c h e f s o f San Franc i sco . I n later y e a r s , O r s i o f O r s i ' s [ r e s t a u r a n t ] would come up and p repare t h e e n t i r e luncheon f o r u s , a p i c n i c luncheon, and a savor ing o f a l l o f t h e v a r i o u s Louis M a r t i n i wines , and t h a t con- t i n u e s t o t h i s day, t h e t r a d i t i o n .

Let m e back you up a b i t because I have some q u e s t i o n s . I remember you t e l l i n g m e t h a t t h e r e were a number o f I t a l i a n s who l e f t San Francisco as p a r t o f t h e a l i e n exc lus ion . A f t e r t h e war then , was i t a m a t t e r o f many of t h e s e peop le coming back i n t o t h e I t a l i a n c o m u n i t y , o r d e c i d i n g n o t t o come back?

A l l o f them; I d o n ' t know o f any who d i d n ' t . Of a l l t h o s e I know, they a l l came back.

Was i t a d i f f i c u l t t r a n s i t i o n f o r many of them?

No, they had no problems. Some o f them were t aken o u t of t h e camp and brought down t o t h e m i l i t a r y schoo l on t h e pen insu la t o t each I t a l i a n t o t h e m i l i t a r y government o f f i c e r s d u r i n g t h e war. Some of them were g r a d u a l l y r e l e a s e d . I f they f e l t someone was n o t a r i s k , h e would b e r e l e a s e d . As I s a y , by t h e c l o s e of t h e war they a l l came back wi thou t excep t ion a s f a r as I know.

What were t h e changes i n t h e North Beach area dur ing t h e World War I1 per iod and a f t e r w a r d s ?

Changes i n t h e a r e a ?

Yes.

Oh, b a s i c a l l y none excep t t h e s low and g r a d u a l i n f u s i o n o f t h e Chinese i n t o t h e a r e a . The Chinese have t aken over most of North Beach now except f o r some b u s i n e s s e s and some r e s t a u r a n t s , c a f e s , p a s t r y shops , and d e l i c a t e s s e n s , and t h i n g s o f t h a t n a t u r e . With those excep t ions , North Beach i s b a s i c a l l y Chinese today.

Was t h i s i n f l u x o f t h e Chinese a matter of d i s t r e s s f o r t h e I t a l i a n community?

A m a t t e r of d i s t r e s s ? No, I wouldn' t s a y i t ' s a m a t t e r o f d i s t r e s s . It may b e a m a t t e r o f r e g r e t because they s e e t h e t r a d i t i o n a l North Beach-Li t t le I t a l y d i sappear . This was a n a r e a where you could h e a r

Zirpol i : I t a l i a n spoken on t h e s t r e e t s and t h i s was an a rea where you would buy your I t a l i a n paper. (There were two I t a l i a n d a i l i e s during t h i s per iod.)

What happened was t h a t a s t h e I t a l i a n s became more a f f l u e n t , they purchased homes. I n t h e beginning of 1922, they s t a r t e d purchasing homes i n t h e Marina d i s t r i c t and most of t h e people who r e s i d e i n t h e Marina d i s t r i c t today--I don't say most, bu t a g rea t majori ty of them--are I t a l i a n because a s they acquired a l i t t l e weal th and purchased property, they moved the re -and some of them moved down t o t h e peninsula. The r i c h e r you got , t h e f a r t h e r away you went from North Beach.

Sharp: So t h a t community was r e a l l y dispersed--

Z i r2o l i : It was dispersed because they were prosperous. So the re was no d i s t r e s s involved. As you became wealthy, s o t o speak, you wanted a b igger home and you wanted grounds and everything e l s e and you j u s t moved out t o ge t a bigger home. You d i d n ' t want t o l i v e i n a f l a t any longer o r above a grocery s t o r e o r r e s t au ran t o r something of t h a t charac te r .

A t yp i ca l family t o i l l u s t r a t e t h a t po in t would be maybe t h e P e t r i family. They had a c i g a r f ac to ry and they prospered. Then they went i n t o t h e wine business and prospered and continued t o prosper . They l i v e d i n North Beach i n one of t h e f l a t s and, of course, they moved out . They bought a b i g home. Angelo P e t r i bought a b ig home on Russian H i l l and a s t h e ch i ld ren grew up and became a d u l t s and married, they bought enormous e s t a t e s . One of them bought an enormous e s t a t e on t h e peninsula . One of them bought a tremendous mansion i n P a c i f i c Heights and then purchased the top f l o o r of a b ig condominium. This is t h e na ture of t h e progress economically of t hese people. I use t h a t merely a s an i l l u s t r a t i o n .

Origins of t h e Indigent Defendant Program

Sharp: L e t ' s t a l k about t h e ind igent defendant program then t h a t was e s t ab l i shed i n 1951. You made a few notes about t h i s on your own tape. You mentioned t h a t Louis Goodman was chief judge [of t h e Northern D i s t r i c t Court] a t t h i s po in t and t h a t t h e r e were some eighty a t to rneys involved.

Zirpol i : Louis Goodman was chief judge. George Harr is* suggested t o Louis Goodman t h a t t h e cour t s e t up an ind igent defendant program and t h a t I be asked t o s e rve a s chairman of t h e committee. I was asked t o serve a s chairman of t h e committee and I s a i d I would. I then caused no t i ce s t o be published i n The Recorder ask ing f o r vo lunteers +

and t h a t t h e r e would be a meeting i n t h e courtroom of t h e chief judge f o r t h e purpose of s e t t i n g up t h e committee f o r t h e represen- t a t i o n of ind igent defendants. I s a i d t h a t we had responses from i n excess of e ighty a t to rneys .

A t t h a t meeting, we agreed t h a t we would t r y t o arrange t o have two a t to rneys a v a i l a b l e every cour t day of t h e week, f o r appearance i n cour t t o represent ind igent defendants i f needed. We gave t h e a t torneys postcards on which they would i n d i c a t e da tes t h a t were acceptable t o them. These were then a l l forwarded t o my o f f i c e because I r an i t out of my o f f i c e . We prepared a calendar and we would i n s e r t two names based on t h e r e tu rn from t h e cards f o r each day of t h e week with t h e understanding t h a t i f anyone could not make i t f o r some emergency reason, then I would cover o r otherwise cause i t t o be covered by another member of t h e panel.

The lawyers were g r e a t i n t h e i r response. As I s a i d , we had approximately e ighty of them t o make up t h i s calendar s o t h a t no one would be given too g rea t an assignment. What would happen was t h a t you appeared i n court . A t t h a t time, we had the master calendar . We d idn ' t have ind iv idua l calendars a s we have i t now. The master calendar judge would c a l l t h e c r imina l calendar each day i f t h e r e was one. So with two men i n court--two lawyers, some women, of course--(there were a number of women, i t was r e l a t i v e l y few compared t o today), but with two lawyers, t h e cour t would appoint one. I f t he re were two cases , h e would appoint one f o r one, and t h e o t h e r one f o r t h e o the r . I f t h e r e were th ree cases , you would ge t appointed f o r two of them. This made i t f i n e because you were t h e r e from t h e o u t s e t and you assumed r e s p o n s i b i l i t y t h e r e a f t e r f o r t h e r ep re sen ta t ion of t h e ind iv idua l involved.

Now, before t h e ind igent defendant panel was s e t up, t h e judge would merely ask a lawyer i n t h e co'urtroom t o s t e p forward and you were appointed whether you l i k e d i t o r no t , so t o speak. This way you had people who had volunteered and who were w i l l i n g t o appear and t h e top t r i a l lawyers volunteered.

*Readers a r e d i r ec t ed t o t h e o r a l h i s t o r y conducted with Judge Harr i s , Memories of San Francisco Legal P rac t i ce and S t a t e and Federal Courts, 1920s -1960~~ Regional Oral History Office, The Bancroft Library, U.C. Berkeley, 1981. Judge Harr i s died 18 October 1983.

This w a s e n t i r e l y pro bono then? Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Pro bono, t h e whole t h ing , and you even pa id your own expenses.

Let m e j u s t s t o p you f o r a minute because I a m i n t e r e s t e d i n Judge Harris. Why d i d h e come up wi th t h i s i d e a , do you th ink?

Why d i d h e come up wi th i t ? I don ' t know. Well, one reason why h e came up w i th i t , I suppose i n p a r t , w a s because h e r e a l i z e d t h a t t h e r e were s e v e r a l lawyers who were g e t t i n g too many appointments. I w a s g e t t i n g a s u b s t a n t i a l number, bu t J i m O1Connor, by way of i l l u s t r a t i o n , any t i m e h e appeared i n cou r t , he w a s appointed. J i m O'Connor represen ted s o many i nd igen t defendants and spen t a l o t of h i s own money i n v e s t i g a t i n g on t h e i r beha l f . I know Judge Harris was conscious o f t h i s f a c t . I assume t h a t ' s t h e primary reason f o r h i s sugges t ing t h a t we set up a panel , s o t h a t you could draw from it--

And t r y t o spread o u t t h e work?

And spread o u t t h e work. Of course , t h e panel w a s set up b u t i t became q u i t e a t a s k f o r m e , and became q u i t e expensive. Eventual ly t h e Ford Foundation took i t over .

Right. I guess I a m look ing f o r some a l t r u i s t i c c l u e t o Judge Harris's pe r sona l i t y , o r some s p e c i a l reason t h a t h e wanted t o do t h i s because he wanted t o h e l p i nd igen t defendants .

- -A l t ru i s t i c . I know t h a t Judge Harris w a s a s t i c k l e r f o r main- t a i n i n g t h e c i v i l r i g h t s , a l l of t h e r i g h t s o f t h e p r i s o n e r s , so h e had a n i n t e r e s t i n s ee ing t h a t they were p rope r ly represen ted . But I t h i n k one o f t h e b a s i c t h i n g s w a s t h e r e a l i z a t i o n t h a t t he workload w a s g e t t i n g too g r e a t f o r t h e small number of lawyers .

Th is i s t h e f i r s t t i m e we have t a l ked about Chief Judge Goodman as w e l l . I wondered i f you could t e l l m e some more about him.

Chief Judge Goodman w a s an e x c e l l e n t ch i e f judge. H e had t h e i n t e r e s t of t h e cou r t a t h e a r t . He w a s always seek ing ways and means t o improve t h e s e r v i c e s of t h e cou r t and h e w a s a c t i v e even n a t i o n a l l y i n t h e committee work of t h e J u d i c i a l Conference. I w a s o f t e n appointed by Judge Goodman t o r ep r e sen t i nd igen t defendants and Judge Goodman named me as h i s lawyer-delegate t o t h e j u d i c i a l conference. For about seven o r e i g h t yea r s s t r a i g h t u n t i l h e d i ed , I se rved as h i s lawyer r e p r e s e n t a t i v e t o t h e j u d i c i a l conference of t h e Ninth C i r c u i t . I a l s o remember meeting him i n Washington on one occasion when h e w a s a t t e n d i n g a committee meeting and i n v i t e d m e t o d inne r and t o meet Judge John Biggs of t h e Third C i r c u i t . Judge Biggs w a s a well-known judge, no t on ly a s a judge b u t from h i s background as a w r i t e r .

Zirpol i : As I say, Judge Goodman always thought about t h e i n t e r e s t of t he judges and t h e improvement of t h e cou r t . He conceived t h e idea of g e t t i n g a l i t t l e d in ing room where they could a l l e a t toge ther . You have t o remember t h a t i n i t i a l l y t h e r e were only th ree judges on t h i s cour t and by t h e time he became a judge of t h e cou r t , the number had r i s e n t o f i v e , I think, and t h a t ' s when he thought i t would be n i ce r i f they could meet toge ther a t lunch. Then i t became s i x when Judge Harris came on a f t e r him. He conceived t h e i d e a and he was t h e one t h a t prepared a l l t h e i n i t i a l plans f o r t h i s bui lding.

Sharp: Judge Harr i s o r Judge Goodman?

Zi rpol i : Judge Goodman prepared a l l of t h e i n i t i a l plans and s e t o u t plans f o r t h e dining room, but of course he never l i v e d t o s ee t h e completion of t h e bui ld ing [450 Golden Gate Avenue]. H i s widow s t i l l l i v e s i n Palo Alto. We named our l i b r a r y a f t e r him. He a l s o conceived t h e plan of a loan fund f o r ind igent defendants . I f a person were placed on probat ion and h e was without funds, Judge Goodman crea ted a fund s o t h a t t h e probat ion o f f i c e r would loan t h e ind iv idua l $10 o r $20, whatever was needed, t o take c a r e of him f o r a few days o r t o enable him t o pay h i s passage back home, sub jec t t o repayment j u s t a s you would a s tudent loan fund. I don ' t know whether t he re i s any money i n i t l e f t . I ' v e had some thoughts about rev iv ing i t , but t h i s fund served a very use fu l purpose f o r many years and much of t h e money was repa id .

Sharp: Is t h a t r i g h t ?

Zi rpol i : Yes, i t was s t a r t e d with $500. While i t wasn't a g rea t dea l t h a t Judge Goodman cont r ibu ted , never the less i t had i t s r e a l value because of t h e a b i l i t y t o r o t a t e .

Sharp: Was Judge Goodman always g e t t i n g people t o con t r ibu te t o i t ?

Zi rpol i : He never t r i e d t o ge t too much from o t h e r people. I mean he was a man of s u b s t a n t i a l wealth himself . He had some s u b s t a n t i a l inves t - ments i n o i l wel l s . He owned we l l s and got r o y a l t i e s .

As I say, h e was a good man f o r t h e cou r t . He was a good chief judge. One of t h e reforms t h a t he engendered was t o do away with t h e master calendar and br ing us t o t h e ind iv idua l calendar . That was a major reform. But I remember t h a t I had once w r i t t e n a l e t t e r i n which I had opposed t h e ind iv idua l calendar and i n s i s t e d we should maintain t h e master calendar . But when I came on the bench, I pa r t i c ipa t ed i n a campaign f o r t h e ind iv idua l calendar , and some people reminded me of my previous l e t t e r .

Sharp: You were then persuaded t h a t t he ind iv idua l calendar was a b e t t e r use of time?

Zirpol i : I w a s persuaded and so we changed over t o t he ind iv idua l calendar . Of course, Judge Goodman had died i n t h e meantime and I i n h e r i t e d a l l of h i s robes and I s t i l l have them t o t h i s day.

Sharp: That is an i n t e r e s t i n g t r a d i t i o n . Is t h a t a common custom?

Z i rpo l i : No, t h a t ' s t h e only time. I don' t know of i t s having happened before. It 's j u s t t h a t h i s widow presented me wi th h i s robes j u s t before I was inducted.

Sharp: Did you wear them then?

Zi rpol i : Yes, I have been wearing them ever s i n c e f o r t h e l a s t twenty years . I have not had t o buy robes, and you wonder what condi t ion they a r e i n today.

Sharp: Once t h i s ind igent defendant program got under way, then did you have a l o t of phone c a l l s o r meetings with Judge Goodman l e t t i n g him know about t h e progress of i t , o r memos--

Z i rpo l i : No, t he re was r a r e l y -any need f o r i t . I would comment on i t a t t h e j u d i c i a l conference [of t h e Ninth C i r c u i t ] , bu t t h a t would be t h e most. No, i t w a s working smoothly. The d i f f i c u l t y was t h a t i t , a s I say, became expensive because I w a s appointed on some cases and one of them c o s t me about $1,500 of my own money t o represent t h e indigent .

Lawyer Delegate t o t h e Ninth C i rcu i t J u d i c i a l Conference

Sharp: I would l i k e t o know more about when you went t o t h e j u d i c i a l conferences a s Goodman's lawyer-delegate.

Z i rpol i : The j u d i c i a l conference is provided f o r by s t a t u t e f o r a l l c i r c u i t s . Now, a t f i r s t i t was j u s t a meeting of judges. Then they inv i t ed lawyers t o p a r t i c i p a t e a s s p e c t a t o r s . I at tended some of t h e e a r l y meetings i n t h e t h i r t i e s by r e a l l y being a spec t a to r i n t h e audience s i d e of t h e courtroom. Then when they named lawyer de lega tes , eventua l ly I was named. I n t h e beginning, they only named two o r t h r e e of them. [Harold] Faulkner was one of t h e f i r s t lawyer delegates . They could comment, bu t they had no r i g h t of vo te . They could merely comment when c a l l e d on. Eventually you became t h e equivalent of a j u d i c i a l de lega te , so with the passage of time, t he lawyers began t o vote on measures, recommendations t h a t were being made t o t h e J u d i c i a l Conference of t h e United S t a t e s o r recommendations f o r l e g i s l a t i o n , o r whatever t h e problem happened t o be.

Zi rpo l i : The conference grew i n numbers from a r e l a t i v e l y small number t o a s many a s 250. It became more d i f f i c u l t because you had t o have the . necessary meeting p lace t h a t could accomodate everyone. The j u d i c i a l conference meeting d a t e s a r e set a t l e a s t t h r e e yea r s i n advance now s o t h a t you can be s u r e t o have a l l of t h e necessary accomodations.

You could p a r t i c i p a t e and you might make speeches. Active people a t t h e j u d i c i a l conference, t h e lawyers, p a r t i c u l a r l y i n t h e e a r l y days, were Harold Faulkner, Eddie Simpson of Los Angeles, Joe B a l l of Los Angeles, Leo Friedman of San Francisco, and myself.

There were many th ings t h a t w e advocated and one of them was t h e f u l l d i s c lo su re t o t he defendant of a t r a n s c r i p t of a l l of t he testimony be fo re t h e grand jury. You a r e s t i l l not e n t i t l e d t o i t and w e have been advocat ing i t a l l these years . Today, you a r e e n t i t l e d only t o a t r a n s c r i p t of t h e testimony o f t h e defendant i f he appears be fo re t h e grand jury. You a r e e n t i t l e d t o t h e t r a n s c r i p t of t h e testimony of a wi tness under c e r t a i n provis ions of t h e c r imina l code, bu t only a t t h e t i m e of t r i a l , no t neces sa r i l y i n advance, although some judges o rde r i t i n advance. Of course, t h e r e was no provis ion f o r s tenographic r epo r t i ng o f t h e testimony anyway. You had t o have a provis ion f i r s t f o r s tenographic r epo r t i ng , and then f o r d i s c lo su re , bu t you s t i l l don ' t g e t t h e type of d i s c lo su re t h a t you g e t i n t h e s t a t e cou r t . We had argued t h a t t h i s p r a c t i c e had gone on f o r f o r t y years i n t h e s t a t e cou r t and we d i d n ' t see any de t r imenta l e f f e c t s . W e thought i t would be a good idea on t h e f e d e r a l s i d e .

Of course, a l l of those names I gave you w e r e a l l defense lawyers. The U.S. a t t o rneys w e r e represented a t t he se conferences a s w e l l , and they always gave t h e i r po in t of view. But t h i s was one subject--for i n s t ance , t h a t became a sub jec t of debate f o r many consecut ive j u d i c i a l conferences. I see Joe Bal l , f o r ins tance , is the a t t o rney f o r D e Lorean. H e would make a g rea t h i s t o r y , I ' l l t e l l you t h a t .

Sharp : H e would. H e a l s o is i n with Pat Brown.

. rpo l i : Y e s , w e l l , Pat Brown is i n with him. [ laughs] I th ink you b e t t e r ge t t h a t o rde r r i g h t ! Joe Ba l l was a member of t he Committee on the Rules of Criminal Procedure [of t h e J u d i c i a l Conference of t he United S t a t e s ] with m e f o r many yea r s and I served a s chairman. So I got t o know Joe Ba l l p r e t t y wel l . I got t o know Eddie Simpson p r e t t y we l l and not only t h a t bu t we had a profess iona l r e l a t i o n s h i p . By way of i l l u s t r a t i o n , i f Simpson had a case i n t h e Northern D i s t r i c t of Ca l i fo rn i a , e i t h e r Harold Faulkner o r I were l i k e l y t o be h i s r ep re sen t a t i ve s .

/I i/

Sharp: I ' ll end wi th t h i s ind igent defendant program j u s t on t h e no t e wi th you a s a lawyer de l ega t e t o t h e j u d i c i a l conference of t h e Ninth C i r c u i t . Is t h i s program something t h a t you might have ta lked about and t r i e d t o popular ize o r persuade some of t h e other--

Z i rpo l i : Oh, yes, w e did t a l k about it and it was w r i t t e n up n a t i o n a l l y . Then when t h e b a r a s soc i a t i on took i t over from m e and they go t a g r an t from t h e Ford Foundation, then I th ink they got an award f o r i t , a n a t i o n a l award.

Sharp: This would have been a f t e r '55 then.

Z i rpo l i : Oh, yes , '51 t o '55. I had i t f o r fou r yea r s .

I n t e r lude on t h e San Francisco Board of Supervisors

Sharp: L e t ' s change t r acks r a d i c a l l y and t a l k some about your work on t h e San Francisco Board of Supervisors back i n 1958.

Z i rpo l i : A l l r i g h t , i n 1957, t h e Volunteers f o r Better Government asked m e t o m e e t wi th them. That was a downtown group of young men, bus iness and p ro fe s s iona l men. They wanted t o run a t i c k e t of t h r e e candidates f o r t h e Board of Supervisors . They asked m e i f I would be a candidate . I t o l d them I r e a l l y wasn't i n t e r e s t e d . I was i n t e r e s t e d i n p o l i t i c s , b u t no t a s a candidate . They asked m e t o th ink i t over and I s a i d I would and would give them an answer i n two weeks.

I received a phone c a l l i n t he i n t e r im from George Chris topher who was then mayor. I had previously served a s co-chairman of t h e committee f o r h i s e l e c t i o n a s mayor [ i n 19561. He s a i d , " A l , i f I had known you wanted to be on the Board of Supervisors , I would have appointed you. "

I thanked him and then I decided maybe I ought t o b e on t h e board, bu t I don ' t want t o be known a s someone's man. I d i d n ' t want t o be designated a s Chris topher 's man and I wasn't vo t ing a s Christopher d i r e c t e d .

So I decided t o run and I met with t h e committee. I wanted t o know what they would do i n t h e way of f inances . I wanted t o know what they would do i n t he way of g e t t i n g t h e media, p a r t i c u l a r l y newspaper support , and they assured m e t h a t they could t ake c a r e of a l l of t h a t . So I became a candidate and s t r ange ly enough most of t he money t h a t they got f o r t h e t h r e e candidates , most of i t came from my f r i ends . [ l augh te r ]

Zi rpo l i : I rece ived t h e endorsement of t h e San Francisco newspapers, s o I r e a l l y had no problem. I went o u t and campaigned. I s t a r t e d o u t by s ay ing I would make no promises o f - a n y k ind o r c h a r a c t e r and I found t h a t t h a t d i d n ' t s i t with t h e vo t i ng pub l i c . They were looking f o r you t o make some promises. I d i d n ' t f e e l a man ought t o b e making promises. I thought I should b e t e l l i n g them t h a t I would t r y t o s e r v e . t h e i n t e r e s t s of t h e c i t y i n i ts e n t i r e t y , and t r y t o e v a l u a t e every i s s u e t h a t comes up, and g ive my honest op in ion a s t o what w a s i n t h e i n t e r e s t of t h e c i t y . They wanted more; s o I had t o start commenting on i s s u e s from t i m e t o t i m e .

Sharp: What i s s u e s d i d you p ick t o comment on, do you remember?

Z i rpo l i : One of them t h a t I commented on, one of t h e i s s u e s o f t h e t i m e , was t h e d e s i r a b i l i t y of having d i s t r i c t e l e c t i o n s i n s t e a d of city-wide. I t o l d them t h a t I was d e f i n i t e l y i n favor of ci ty-wide e l e c t i o n s and I d i d n ' t t h i n k i t w a s good t o have people t h ink ing p r ima r i l y of a d i s t r i c t r a t h e r than t h e c i t y a s a whole. Now, t h a t I remember d i s cus s ing i n some d e t a i l . I r e a l l y don ' t r e c a l l a l l of t h e o t h e r i s s u e s , bu t on t h e Board of Supervisors a t t h a t t ime, w e pa id a t t e n t i o n s t r i c t l y t o c i t y bus iness . You were r e a l l y o u t of o r d e r i f you presen ted an i s s u e t h a t wasn ' t s t r i c t l y c i t y bus iness . I n o t h e r words, w e weren ' t p r e sen t i ng i s s u e s which were n a t i o n a l i n scope o r which were s o c i a l i n c h a r a c t e r . It had t o b e c i t y bus iness .

Today, t h e Board of supe rv i so r s i n t roduces r e s o l u t i o n s on every th ing o r w r i t e s l e t t e r s on every th ing , i nc lud ing t h e conduct of t h e guard of t h e Queen of England, by way of i l l u s t r a t i o n . Well, none of t h a t . W e wouldn' t permit i t . W e would r u l e you o u t of o r d e r r i g h t away. Someone would rise and say , "This is n o t t h e bus ine s s o f t h e board. "

When I w a s on t h e board, t h e r e were e leven members on t h e board, of course , and t h e r e were on ly s i x t e e n employees o f t h e Board of Supervisors , i nc lud ing t h e c l e r k . I don ' t know how many hundred they have today. You d id your own homework. They gave you t h e p r i v i l e g e of a u se of a c a r once a week wi th a chauf feur . You would use t h a t c a r and t h e chauf feur t o go i n t o t h e va r i ous a r e a s and persona l ly review p r o j e c t s and t h ings t h a t had t o b e reviewed, so you would--

Sharp : --Know what w a s going on.

Z i rpo l i : You would know what w a s going on. I f t h e r e w a s a problem wi th r e l a t i o n t o t h e c i t y and county h o s p i t a l , you'would have t h e chauf feur d r i v e you o u t t he r e . You would go t h e r e , y o u would make your survey. Whatever t h e problem happened t o be , you would persona l ly check i t ou t . You would cover t h e c i t y f o r re-zoning purposes and check i t a l l o u t and you had no a s s i s t a n t s . It was considered a par t - t ime job, and i n a s ense i t r e a l l y was j u s t p a r t t ime anyway. P a r t t i m e may have involved twenty hours o r more a week, bu t you could do i t p r e t t y

Zi rpo l i : wel l i n t h a t time and conduct your own business . I remember when we l e f t t he board, t h e s a l a r y was $400 a month when I came onto t h e bench. It was l e s s than t h a t i n i t i a l l y . It was $200 and then i t was moved up t o $400.

Sharp: Let me j u s t s t o p you f o r a minute. We don' t have any information a t a l l on the superv isors ' r o l e i n the d iscuss ions o f cons t ruc t ion of BART [Bay Area Rapid T r a n s i t ] and of Candlest ick Park.*

Zi rpol i : BART was conceived a s a Bay Area p r o j e c t and i t was so s e t up t h a t a l l of t h e counties involved had t o j o i n and p a r t i c i p a t e i n order f o r i t t o go ahead. I introduced the r e s o l u t i o n f o r San Francisco 's p a r t i c i p a t i o n i n BART. That was my r o l e i n BART. There is a plaque somewhere--1've never seen it--with t h e names on i t , inc luding mine. I a l s o pa r t i c ipa t ed i n t h e enlargement of t h e a i r p o r t and t h e c rea t ion of the b i g a i r p o r t t h a t we now have. There is a plaque the re somewhere, too, which I have never seen.

Then a s f a r a s t h e ba l lpa rk is concerned, Candlestick Park, by the time I got t o t h e board, t h e r e was already a commitment t o Candle- s t i c k . There wasn't anything I could do about t h a t , although I d id r a i s e some objec t ions . I would have prefer red t h a t they had s e l e c t e d another l oca t ion , bu t t he re wasn't anything I could do about t h a t any more.

Sharp: I have a few back-up quest ions on both BART and Candlestick Park. Marin County withdrew.

Zi rpol i : Yes.

Sharp: Did t h a t c r e a t e s o r t of a problem a s f a r a s San Francisco c i t y and county were concerned?

Zi rpol i : No, the p r o j e c t was s t i l l adequate t o go ahead.

Sharp: As I understand i t , i t was 1957 t h a t i t was on t h e b a l l o t .

Z i rpo l i : Yes, and then the count ies had to j o in .

Sharp: By the time you came onto the board [ i n 19581, what were t h e main i s s u e s then t h a t t h e board had t o dea l with i n terms of BART?

*For add i t i ona l perspec t ive on these matters , s e e an o r a l h i s t o r y in te rv iew with George Christopher, "Mayor of San Francisco and Republican Party Candidate,' ' i n San Francisco Republicans, Regional Oral History Office, The Bancroft Library, U .C. Berkeley, 1980.

Zirpol i : There were no problems, San Francisco approved of and joined BART.

Sharp: Was t h e r e s o r t of automatic support, t h a t everybody was behind i t and--

Zi rpol i : I am t ry ing t o th ink about i t . I don' t remember any opposi t ion, bu t I do know one th ing . Whenever t he re was a p a r t i c u l a r r e so lu t ion t h a t 'I would want t o introduce and I feared oppos i t ion from Supervisor [James Leo] Halley i n p a r t i c u l a r (a s t rong Republican who reac ted t o me a s a Democrat), I would t e l l t h e people who were i n t e r e s t e d i n t h e p a r t i c u l a r r e so lu t ion o r ordinance t o go t o s e e Halley f i r s t and ge t him t o present it. Then I would support i t . [laughs] This way we would be s u r e of g e t t i n g our measures through. I mean t h a t was a p o l i t i c a l t a c t i c t h a t I employed a t t h a t time.

I remember another th ing I was very much i n t e r e s t e d i n but I couldn ' t engender enough u l t imate i n t e r e s t . I presented p ro j ec t s and plans f o r a monorail from he re t o t h e a i r p o r t , bu t I wasn't a b l e t o put i t over and now, a s I th ink back, i t would have been a p r e t t y good idea! [ laughs]

Sharp: That would have been s o r t of add i t i on t o BART, a s p a r t of BART?

Zi rpol i : Yes. No, r e a l l y i n a s ense i n add i t i on t o i t , a s t r a i g h t monorail t h a t would have taken you d i r e c t l y t o t h e a i r p o r t .

Sharp: Oh, I would have voted f o r t ha t ! [laughs]

Z i rpo l i : Also, t he re were problems about d i sc r imina t ion . I was i n t e r e s t e d i n t h e r e so lu t ions t h a t would avoid poss ib le r a c i a l d i scr imina t ion i n employment i n San Francisco. This was something t h a t was j u s t beginning t o develop a t t h e very end of my term. Then I came onto t h e bench. Before I came onto t h e bench the re was a l s o some t a l k about t h e p o s s i b i l i t y of my running f o r mayor, bu t I r e a l l y had no d e s i r e t o do it. Some people came t o s e e me and wanted me, bu t I was i n t e r e s t e d i n t h e cour t .

Also, t he re were some people t h a t thought I would run f o r Congress aga ins t [William S.] Ma i l l i a rd . I had no i n t e n t i o n t o . One of t he Republican l eade r s and f i n a n c i a l backers of Mai l l ia rd inv i t ed me t o t he Pac i f i c Union Club ( i t was t h e f i r s t time I had ever been i n t he club) and suggested t h a t i f I would not run f o r Congress, a group of f i n a n c i a l i n t e r e s t s i n San Francisco would support me f o r mayor. I s a i d t h a t I hadn' t r e a l l y decided bu t I would l e t them know a t a l a t e r da te . I had no i n t e n t i o n of running, but I wasn't going t o t e l l him t h a t . [ laughs]

Of course, t h e man t h a t someone ought t o interview about t h e San Francisco Board of Supervisors is Robert Dolan, t h e c l e r k of t he board. [ s p e l l s name] Robert Dolan, I th ink he s t i l l has minutes of about every meeting of t he board i n the l a s t twenty-odd years o r more.

Was he somebody t h a t you came t o know once you-- Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Dolan was t h e c l e r k of t h e board. He was t h e man f o r whom I had and continue t o have t h e h ighes t regard and respec t a s t h e most knowledge- ab l e man of t he governmental and p o l i t i c a l set-up i n San Francisco. I don' t know anyone who knows a s much about San Francisco a s Dolan does. I would i n v i t e him t o a l l of our meetings of t h e var ious committees I served on, p a r t i c u l a r l y t h e f inance committee. I would always ask h i s views and he had a way of present ing them t h a t would make you l i s t e n . He would say, "I would most r e spec t fu l ly suggest t h a t you consider--." And t h a t ' s a l l he 'd say. He wouldn't t e l l you yes o r no, bu t t h e way he went about i t and considered i t , you knew damn we l l you real ly should consider i t ! [ laughter ]

Speaking from r e a l experience then.

Yes.

What about Donald Cleary?

Cleary was the--

Lobbyist [ i n Sacramento ).

He was a former newspaperman i n San Francisco. He was a p r e t t y e f f e c t i v e lobby i s t , yes. He had a n i ce way about him and a n i c e approach. There was never anything abras ive about h i s conduct a t a l l and he'd had a l o t of newspaper experience. They a l l had known him a s a newspaper r epo r t e r .

I wondered, e spec i a l ly with Candlestick Park and wi th BART, t h a t t he re might have been reason f o r a l o t of communicating between Sacramento and the Board of Supervisors . Donald Cleary a s t h e so- c a l l e d lobby i s t f o r t h e c i t y I would th ink might have some s p e c i a l r e l a t i o n s h i p with the board because of t he importance of what was going on.

He had a s p e c i a l r e l a t i onsh ip a s a l obby i s t , bu t I don' t remember h i s p a r t i c i p a t i o n i n BART i n any way.

I think we have covered j u s t about t he main things i n terms of your term on the board.

I had seen a note t h a t [Nik i ta ] Khrushchev had come t o San Francisco.

Oh, yes .

Do you remember t h a t v i s i t ?

Oh, yes, very w e l l .

Did he meet with t h e board?

Z i rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

W e had him t o dinner a t t h e Palace Hotel. Khrushchev was sea ted a t t he main t a b l e next t o t he mayor, l e t ' s say i n t h a t c h a i r , and I was s ea t ed a t t h i s f i r s t t a b l e r i g h t ac ros s from him toge ther wi th Fazackerly, who I remember was a former member of t h e Board of Super- v i s o r s , Fazackerly and myself and o the r s , inc lud ing two of t h e s e c u r i t y o f f i c e r s f o r Khrushchev. I remember Fazackerly--1'11 never forget--saying t o m e , "Shall w e do i t now?" [ l augh te r ] I don ' t th ink those s e c u r i t y o f f i c e r s understood English, bu t t h a t was q u i t e a comment t o come from him while w e were t h e r e a t t h e t a b l e .

H e was a very a f f a b l e person, s o I rose from my t a b l e and had my program and I presented i t t o him f o r h i s autograph and he autographed i t f o r me , whereupon [Mayor] Christopher asked me t o g e t h i s autograph and people began coming t o my t a b l e f o r me t o go t o Khrushchev and g e t h i s autograph.

That is my b a s i c meeting and r e c o l l e c t i o n of him. I m e t him and shook hands with him and th ings of t h a t cha rac t e r and t h a t was i t .

Did h e speak English?

No, no t t h a t I know o f . H e may have spoken i t .

When he came i n '59, t h a t was a very d i f f i c u l t t i m e f o r t h e United S t a t e s . [F ide l ] Castro had taken power i n Cuba n ine months before and I had sensed t h a t perhaps r e l a t i o n s might be q u i t e a b i t s t r a i n e d .

No, he was very c o r d i a l i n San Francisco and h e developed a very s t rong r e l a t i o n s h i p with George Christopher and l a t e r i n v i t e d him t o v i s i t him i n Russia. Christopher spent a week with him the re , and brought along two San Francisco newspaper r e p o r t e r s a s p a r t of t h e entourage. He walked along Nob H i l l . H e was i n t e r e s t e d i n t h e cab le c a r . People were a l i t t l e worried about h i s walking on Nob H i l l because they f e l t he needed more s e c u r i t y . H e wanted t o v i s i t Disneyland . I had a few e x t r a ques t ions , mostly r e l a t i n g t o your work i n 1958 on Stanley Mosk's campaign f o r s t a t e a t t o rney general .

Z i rpo l i : H e asked m e t o b e h i s nor thern Ca l i fo rn i a campaign manager and I consented. Stanley Mosk had been [execut ive] s e c r e t a r y t o Governor Olson before he was appointed t o t h e municipal cour t and I met him when he was s e c r e t a r y t o Governor Olson. A s I say, being a c t i v e i n Democratic p o l i t i c s , h e asked me t o s e rve a s h i s nor thern Ca l i fo rn i a campaign manager. So I d id and I went around c o l l e c t i n g money f o r him. I c o l l e c t e d q u i t e a b i t , bu t I always brought a b e a u t i f u l young l ady wherever we would go t o in te rv iew t o c o l l e c t money.

Sharp: Did t h a t work p r e t t y we l l ?

Z i rpo l i : Y e s , [ laughs] I th ink i t d id .

Sharp: We had an i n t e r e s t i n g i n t e rv i ew wi th Stanley Mosk a s p a r t of t h e [Edmund G.] Pa t Brown [Sr . ] p r o j e c t . One of t h e th ings t h a t they came ac ros s i n t h e i n t e rv i ew was t h a t Mosk was a r e a l s t i c k l e r f o r no d e f i c i t s i n h i s campaign.* I wondered i f you had found t h a t t o be t r u e a l s o .

Z i rpo l i : I don ' t know whether i t was t r u e o r no t . A l l I know is t h a t w e pa id a l l ou r b i l l s . We had no problem.

Sharp: When Mosk came i n t o o f f i c e , he was swept i n wi th many Democratic v i c t o r i e s i n 1958. Pa t Brown becoming governor was t h e most obvious one. Mosk then was running not aga ins t an incumbent. H e was running aga ins t Pa t [Pa t r i ck ] H i l l i n g s who was a [Richard] Nixon protggg, from what I can te l l . Do you have a sense of H i l l i ngs a s a candidate? Do you remember him a t a l l ?

Z i rpo l i : Not very much. I, of course, knew Pa t Brown very w e l l and had some i n t e r e s t i n a l l of h i s campaigns. I n f a c t , h e was i n t h e same high school t h a t I a t tended . He was two years behind m e , i n my b r o t h e r ' s c l a s s . He was t h e cheer leader a t Lowell High. They c r ea t ed a group c a l l e d [The New Order o f ] Cincinnatus i n San Francisco and he was an unsuccessful candidate . Then he eventua l ly was e l e c t e d d i s t r i c t a t t o rney and Tom Lynch became h i s chief deputy. Then Tom Lynch became a t t o rney general .

*See "Attorney General 's Off ice and P o l i t i c a l Campaigns, 1958-1966,'' i n Ca l i fo rn i a Cons t i t u t i ona l Of f i ce r s , Regional Oral History Off ice , The Bancroft L ibrary , U . C . Berkeley, 1980.

V ON THE BENCH OF THE NORTHERN DISTRICT

Appointment i n 1961 and T r a n s i t i o n

Sharp: Had you been i n t e r e s t e d i n a p o s i t i o n i n M r . Brown's a d m i n i s t r a t i o n once h e became governor?

Z i r p o l i : No. No, I wasn ' t i n t e r e s t e d a t a l l . I had been appointed d i s t r i c t judge. P a t Brown's b r o t h e r w a s a cand ida te , b u t I go t t h e appoint- men t .

Sharp : That w a s Harold?

Z i r p o l i : Harold Brown. I may have commented about t h a t a l r e a d y , I don ' t know. I s e n t t h a t l e t t e r I t o l d you about t o everyone s a y i n g I w a s i n t e r e s t e d . When a vacancy occur red on t h i s bench, they c a l l e d me from Washington [D.C.] and i n d i c a t e d t h a t I would probably g e t t h e appointment. There was a meeting o f t h e c o n g r e s s i o n a l d e l e g a t i o n w i t h t h e chairman of t h e s t a t e Democratic p a r t y and t h e n a t i o n a l

committeewoman from C a l i f o r n i a [ E l i z a b e t h Smith Gatov]. They agreed on me, b u t then a few days l a t e r ( C l a i r Engle had agreed , t o o ) , P a t Brown came i n t o t h e p i c t u r e and pushed forward h i s b r o t h e r ' s name. Then I knew I w a s having a problem. I n f a c t , Pa t Brown had urged me t o withdraw my name i n favor of h i s b r o t h e r i n r e t u r n f o r f u t u r e s u p p o r t . I r e f u s e d t o do i t .

Sharp: Fu ture s u p p o r t f o r what?

Z i r p o l i : I would withdraw my name f o r appointment t o t h e d i s t r i c t c o u r t , h e would s u p p o r t me f o r a l a t e r appointment.

Sharp : To t h e d i s t r i c t c o u r t ?

Z i r p o l i : Yes, b u t I t o l d him I wasn ' t i n t e r e s t e d . This a l l happened dur ing t h e i n d u c t i o n ceremony of C e c i l Poole as United S t a t e s a t t o r n e y . I had been asked i f I wanted t o b e United S t a t e s a t t o r n e y by Robert Kennedy and Will iam Orr ick , who w a s deputy a t t o r n e y g e n e r a l a t t h e

Zirpol i : time. I t o l d them I wasn't i n t e r e s t e d i n going back t o be a U.S. a t torney . So Ceci l Poole was appointed. A t t he induct ion ceremony, Pat Brown at tended because Poole had served a s h i s chief deputy and [clemency] s ec re t a ry a s governor. He then asked m e t o s t e p i n t o the co r r ido r and we walked down the co r r ido r and he asked me t o withdraw my name. I s a i d no.

Then we went t o a ground-breaking ceremony i n t he Western Addition and Mayor [George] Christopher was there . I was the re and Pat Brown was there . He suggested t o t h e mayor t h a t the mayor t a l k t o m e t o s e e i f he could g e t me t o withdraw. Of course, t h e mayor s a i d no, he wouldn't do i t . The mayor t o l d me about i t l a t e r .

I went back t o Washington t o a t t end a meeting of the Order of t h e Sons of I t a l y i n America. I was a de lega te a t t he Mayflower Hotel. ( I ' l l throw t h i s i n a s a s i d e l i g h t because i t ' s a cu t e s t o r y . ) Also a s a de lega te was an ind iv idua l named John DiMassimo [ s p e l l s name], who worked a s a gardener f o r t h e c i t y and county of San Francisco. He was an ex-wrestler and b u i l t s h o r t and s tocky, almost gor i l la - type , bu t a very l i k a b l e s o u l who had two heroes. One of them was George Christopher and I was t.he o the r one.

What happened was t h a t while I was a t tending the convention, I phoned 'Whizzer" White, now a U.S. Supreme Court j u s t i c e , who was then deputy a t to rney general (under Kennedy) a t 8:30 i n t he morning f o r t he purpose of t a l k i n g t o him about my appointment. H i s s ec re t a ry s a i d , "Come r i g h t over." So I s a i d , "He knows what I want and he t e l l s me t o come r i g h t over , t h a t ' s a good sign." So I went r i g h t over and when I a r r ived i n h i s o f f i c e he asked me t o s i t down j u s t a minute and he s e n t f o r a fe l low named Andretta who handles a l l of t h e business of t h e a t torney genera l ' s o f f i c e and the f inancing. When Andretta stepped i n t o the room, he turned t o Andretta and he s a i d , "I want you t o meet t he next I t a l i a n judge." I think t h a t ' s i n t h a t [Jackson] book somewhere.

That n ight I was i n t h e Mayflower and we were the re having a l i t t l e c o c k t a i l o r something and John DiMassimo came up t o me and s a i d , "I went t o s e e Jack Shel ley [Congressman from San Francisco and l a t e r mayor] today," [ imi t a t e s I t a l i a n accent ] i n h i s broken English, "to ge t appointment with a t torney general . I want him t o appoint you f o r t h e judge. Jack Shelley t e l l me t o come back tomorrow, so tomorrow morning I w i l l go back." In view of what had happened, I phoned Jack Shel ley and I s a i d , "My gosh, t h i s guy may s p o i l i t . Whatever you do, don ' t ge t him an appointment with t h e a t torney general. "

The next n ight I asked John DiMassimo what happened. He s a i d , "I go t o s e e Jack Shelley and Jack Shel ley, he say I cannot get an appointment, so I go t o t he o f f i c e of t h e Department of J u s t i c e on the f i r s t f l o o r , on the second f l o o r , on the t h i r d f l o o r , on t h e

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

fou r th f l o o r . I s e e a b i g s ign : Off ice of Attorney General. I go i n s i d e and the s e c r e t a r y , s h e say , ' M r . Robert Kennedy, he i s not i n . He won't be he re u n t i l c l o s e t o s i x o'clock."' John DiMassimo s a i d , "That's a l l r i g h t , I ' m from San Francisco, I wai t . "

H e wai ted a n d f i v e minutes t o s i x , Kennedy put h i s head o u t t h e door. He r a r e l y wore h i s j a cke t , he was always i n h i s s h i r t s l e e v e s , and saw t h i s fe l low the re . So he i n v i t e d him i n . I s a i d t o John DiMassimo, "What d i d t h e a t t o rney general do whi le you were t a l k i n g to him?" He s a i d , "Oh, he was j u s t chuckling." So he d i d n ' t do m e any harm. [laughs]

A s I say , I was t o l d by "Whizzern White a t t h e t i m e , a f t e r h e spoke t o Andretta, t o j u s t b e p a t i e n t and they would g e t Harold Brown's name withdrawn, and I was p a t i e n t .

There was an a c t u a l Senate confirmation hear ing , and a l l of t h a t ?

Oh, t he re was, yes . I was asked t o go back. There always is . I went back t o Washington t o appear before t h e Senate committee. There were only two Senators t h e r e , Hiram Wong and t h e Senator from Colorado, and I was asked one quest ion. Hiram Wong j u s t turned t o me and s a i d , "Do you understand you may no longer engage i n p o l i t i c s ? " I s a i d , "I understand, Senator." And t h a t was i t . [ laughs]

That was t h e whole confirmation hear ing .

No t e l e v i s i o n cameras--

No, no, I was t h e r e with C l a i r Engle and t h a t ' s a l l t h a t happened.

I had j u s t a few e x t r a ques t ions about M r . Mosk's campaign because i t seemed t o b e r e a l l y i n t e r e s t i n g . Now, Mosk was running a s a supe r io r cou r t judge from Los Angeles.

Y e s .

I wondered s i n c e you were s o w e l l a p a r t of t h e l e g a l community, i f you made a s p e c i a l e f f o r t t o g e t support from t h e l e g a l community of San Francisco, i f t h a t ' s how you saw your ba i l iwick?

Oh, yes , I t r i e d t o g e t support from t h e community of San Francisco. I was i n t e r e s t e d i n g e t t i n g t h e lawyers p a r t i c u l a r l y i n support of h i s candidacy. Mosk had been e l e c t e d supe r io r cou r t judge by t h e b igges t vote ever given a candidate i n Los Angeles County and t h a t was t h e th ing t h a t w e played up. That was the primary th ing t o put forward.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

H e a l s o s a i d t h a t h e got t h e CDC [Ca l i fo rn i a Democratic Council] endorsement and he s a i d t h a t he thought i t was very important t o h i s v i c to ry .

Which one?

The CDC, t he Ca l i fo rn i a Democratic Council.

Of course, you had t o g e t Democratic suppor t , b u t he had no problem on t h a t score . Of course, t h e Democratic v o t e r s were i n t h e g r e a t major i ty .

Apparently, t he re was some ques t ion about Pa t Brown n o t support ing M r . Mosk.

I c a n ' t t e l l you; I don ' t remember t h a t .

The l a s t t h ing is more about Mosk a s a Democratic n a t i o n a l committeeman, which he was i n 1960. He came out f a i r l y e a r l y f o r Mr. Kennedy and I wondered i f you and Mosk then might have worked toge ther on your campaigning--

No, i t d i d n ' t work o u t t h a t way a t a l l . What happened i s t h a t we had a San Francisco meeting wi th B i l l [William M.] Malone, who c a l l e d t h e meeting. Among those i n a t tendance were myself and B i l l Malone, Red Fay, whose name I have mentioned, and Tom Lynch. A t t h a t meeting i t was decided t h a t Red Fay and I would b e co-chairmen f o r San Francisco, an a l l - c i t i z e n group. In o t h e r words, w e w e r e t r y i n g t o g e t Republicans i n a s w e l l a s Democrats.

Now, t h i s would have been sometime i n '59?

I don ' t know. It was a l ready a f t e r t he f i r s t o f t h e yea r sometime when w e w e r e o rganiz ing t h e campaign proper . Up u n t i l then i t was a ques t ion of g e t t i n g commitments i n t h e Democratic n a t i o n a l convention and i t wasn't u n t i l a f t e r t h e convention t h a t t h e campaign of which I spoke got underway.

/I /I

Up u n t i l 1960, was anything p a r t i c u l a r l y no tab le about M r . Kennedy's campaign t h a t impressed you?

I m e t him f o r breakfas t a t t h e Fairmont Hotel. When Christmas came, I got a b e a u t i f u l Christmas card of himself and h i s wi fe and the baby ( they only had one c h i l d a t t h e time) s igned, "Jack." There- a f t e r I got t o know Robert Kennedy w e l l and, a s I say , my daughter (Jane) served a s an ex t e rn o r i n t e r n o r whatever you want t o c a l l i t with Kennedy whi le she was going t o Radcl i f fe . My son-in-law [Richard de Sa in t Pha l l e ] worked i n Kennedy's o f f i c e whi le h e was a t tending law school i n Washington. So I got t o know the Kennedys, no t s o much Ted Kennedy bu t Robert, yes .

Sharp: Would your r e l a t i onsh ip have continued on wi th Robert Kennedy a f t e r you became appointed judge?

Zi rpol i : My r e l a t ionsh ip with Kennedy? I r e a l l y f e e l t h a t i t would because he t o l d me t h a t "whenever you a r e i n Washington, drop i n t o s e e me." So I would drop i n t o s e e him. I f I wanted t o a t t end a meeting of t h e Senate, he would personal ly e s c o r t me t o a s e a t i n t h e ga l l e ry . He wouldn't have someone i n the o f f i c e do i t . He would do i t him- s e l f . So we got a long beau t i fu l ly .

Sharp: We'll t a l k more about t h a t once we ge t t a lk ing about your years on the bench. That is r e a l l y a l l of t h e quest ions t h a t I have. I have kept you longer than I had expected t o . I hope t h a t ' s okay.

Z i rpo l i : Oh, i t ' s okay, i t ' s f i n e . Thank you f o r br inging me t h a t book.*

Ed Ennis is s t i l l around. I hear from him. He is i n New York. After I went i n t o p r i v a t e p r a c t i c e and he went i n t o p r i v a t e p r a c t i c e , I a l s o assoc ia ted with him i n some profess iona l matters . I got a l e t t e r from him about t h ree o r four months ago asking how I was.

{I {I

Sharp: We ta lked about your appointment l a s t time, bu t I had a few t r a n s i t i o n quest ions. About t he time t h a t you came onto the bench i n the Northern D i s t r i c t Court, t he re were a s e r i e s of seminars I know t h a t were being given f o r new f e d e r a l judges.

Z i rpo l i : Yes.

Sharp: I wondered i f you happened t o go to any.

Z i rpo l i : I s e t up the f i r s t one f o r t he judges a t Carmel [Cal i forn ia] and i t was i n March of '63 o r '62, o r thereabouts .

Sharp: How d id you go about deciding what should be i n these seminars?

Zi rpol i : We talked about i t and t h e Administrative Office [of t h e Courts i n Washington, D.C.] asked me t o s e t i t up. So I made a l l of the arrangements f o r our housing a t what is now the Hyatt House i n Carmel t he re ( j u s t before you e n t e r Camel ) . We were the re f o r a week. It

*The Japanese-American Relocation Reviewed, Volume I: Decision and Exodus, Regional Oral History Office, The Bancroft Library, Univer- s i t y of Ca l i fo rn i a , Berkeley, 1976. Judge Z i rpo l i had been i n t e r e s t e d i n t h e o r a l h i s t o r y interview conducted with Edward Ennis which was included i n t h i s volume.

Zirpol i : ra ined every day, I remember t h a t very wel l , and we had these judges from d i f f e r e n t p a r t s of t he country who at tended t h e seminar.

There were o ther seminars held i n some o the r p a r t s of t he country. These were f o r a l l of the new judges. There were about s i x t y new judges appointed a t t h a t time.

We had experienced judges t a l k about var ious sub jec t s such a s habeas corpus and sentencing procedures. We had d iscuss ions about c r imina l trials and how t o make the maximum o r b e t t e r use of your time. Things of t h a t charac te r were discussed.

Now, I don' t remember a l l of the d e t a i l s any longer . I remember I always accused one of the cour t of appeals judges a s misleading us because the law subsequently changed i n one a rea . As I say, i t w a s very p leasant . It was a very n i c e meeting with a l l of these judges and we got some va lue from i t .

Sharp: What were some of t h e ways t h a t t he i s s u e s were ra i sed? For i n s t ance , with the habeas corpus, were the judges t h a t were t a l k i n g about habeas corpus, was i t a way of g e t t i n g the new judges to--

Zi rpol i : --To b e t t e r understand such th ings a s exhaust ion of t h e s t a t e remedies before you e n t e r t a i n a habeas corpus p e t i t i o n from a s t a t e pr i soner . Fortunately, t h a t happened t o be an a r e a with which I was already f ami l i a r . It was an i l l u s t r a t i o n of the th ings t h a t they discussed. They discussed judgment and sentencing and time f o r modif icat ion. They reviewed some of t h e ru l e s .

Sharp: I imagine t h a t t he sentencing, t h a t was not p a r t i c u l a r l y con t rove r s i a l bu t a very personal s o r t of-

Z i rpo l i : The sentencing is not cont rovers ia l except t h a t t he re is a d e s i r e t o avoid d i s p a r i t y i n sentences, to avoid a s i t u a t i o n i n which f o r t he same of fense under s i m i l a r circumstances one judge might give somebody the equivalent of f i v e years , and somebody e l s e would put them on probat ion and, of course, t h a t ' s bad. So we wanted t o d iscuss those problems.

Sharp: I know t h a t the seminars a r e now p r e t t y rou t ine , t h a t is i s s o r t of an expected th ing .

Z i rpo l i : They a r e rou t ine , but I was not responsible f o r the f a c t t h a t we had the seminars. I merely served a s arrangements chairman f o r the seminar and the Administrative Office arranged f o r t he judges t o come out and speak t o us. We had Joe Estes come out from Texas and we had Walter Hoffman come out from Virg in ia . We had t h e ex-governor of Minnesota, Luther W. Youngdahl, then a judge i n Washington, D .C., come out . We had Judge [William F.] Smith of t he Court of Appeals f o r the Third C i r cu i t come ou t . He was a former U.S. a t t o rney and

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

t r i a l judge who had a l o t o f exper ience i n t h e c r i m i n a l law f i e l d . These were t h e people t h a t came o u t and spoke t o us .

When you f i r s t go t o n t o t h e bench, d i d you f e e l t h a t maybe you were a few s t e p s ahead because you had been a n a s s i s t a n t U.S. a t t o r n e y , and you had p r a c t i c e d i n t h e San Franc i sco f e d e r a l c o u r t s ?

No, I d i d n ' t f e e l t h a t I was ahead, b u t I f e l t s e c u r e i n my a b i l i t y t o d i s c h a r g e my r e s p o n s i b i l i t i e s , l e t ' s p u t i t t h a t way. Although I d i d l e a r n one o r two t h i n g s immediately. On my f i r s t day as a judge, t h e f i r s t c a s e I had, a c r i m i n a l c a s e , I l e a r n e d t h a t a judge has t o b e c a r e f u l o f what h e says and how he s a y s i t . I had a defendant appear b e f o r e me--maybe I mentioned t h i s be fore?

I don ' t t h i n k s o .

I had a defendant appear b e f o r e me i n a c r i m i n a l c a s e . He wanted t o p lead g u i l t y . It was h i s f i r s t appearance and I s a i d t o him, "It's n o t my normal p r a c t i c e t o accep t a p l e a o f g u i l t y on t h e f i r s t appearance of t h e accused. Are you aware of t h e consequences o f a p l e a of g u i l t y ? " I s a i d , "Do you a p p r e c i a t e t h a t i f you p l e a d g u i l t y , I can s e n t e n c e you t o as many as t e n y e a r s imprisonment and a f i n e n o t t o exceed $10,000?" H i s response was, "I d o n ' t a p p r e c i a t e i t , your honor, b u t I do understand." So I f e l t s e c u r e t h a t t h e p l e a would never b e r e v e r s e d because h i s r esponse i n d i c a t e d a thorough unders tanding, b u t I recognized t h a t I had t o b e c a r e f u l , t h a t t h e word "apprec ia te" was improper. The q u e s t i o n was, "Do you unders tand t h a t t h a t ' s what t h e consequence o f a p l e a of g u i l t y w i l l be?"

The b a s i c t h i n g was t h a t I d i d r e a l i z e t h a t a judge h a s t o b e c a r e f u l . He can s a y too much and t h a t ' s n o t good.

What about t h e s h i f t i n g from advoca t ing f o r one s i d e o r one p a r t y t o n o t doing t h i s ?

I d i d n ' t have any t r o u b l e on t h a t s c o r e a s f a r as d i s c h a r g i n g my r e s p o n s i b i l i t i e s is concerned. However, I probably i n t e r r o g a t e d w i t n e s s e s a l i t t l e more than any o t h e r judge would. This d i s p l e a s e d some of t h e de fense lawyers .

I would t h i n k s o .

I f I would t u r n t o t h e w i t n e s s r i g h t away and s a y , " I s n ' t i t a f a c t , " and h e s a y s , "Yes," then i t ' s a l l o v e r . [ l aughs]

Did you f i n d t h a t t h e r e were c e r t a i n s i t u a t i o n s where you d i d t h a t more f r e q u e n t l y than i n o t h e r s where you d i d some of t h e i n t e r r o g a t i n g ?

Zirpol i : I would do i t more f requent ly i f t he counsel were not competent. That o f t e n happens. I f t he counsel i s not competent o r t he counsel doesn ' t know how t o ge t an e x h i b i t i n evidence--and t h e r e a r e some simple th ings t o be done--then I would proceed t o l a y t h e foundation f o r i t and then t e l l him t o proceed.

Sharp: It s t i l l seems t o me though t h a t i t would be f a i r l y complicated Tor you a s a new judge even two t o t h ree years i n t o your being a judge, t he whole idea of not advocating one pos i t i on o r t he o t h e r s t i l l might seem d i f f i c u l t f o r you.

Zi rpol i : No, bu t I s t i l l i n t e r r o g a t e more than most judges do a s f a r a s t h a t p a r t of i t goes. I do t h a t on the j u s t i f i c a t i o n t h a t i f t he quest ions and answers have not been s u f f i c i e n t l y c l e a r , and the re is some c l a r i f i c a t i o n requi red , then I r e a l l y have an ob l iga t ion t o c l a r i f y t he s i t u a t i o n o r t h e f a c t s f o r t he b e n e f i t of the jury.

But, no, I don ' t t ake on the r o l e of an advocate i n t h e sense t h a t I become p a r t i s a n i n my approach.

I may take on t h e r o l e of an advocate t o ask a quest ion when i t appears t h a t somebody is t r y i n g t o deceive t h e cou r t o r t h e jury, and I may i n t e r j e c t a quest ion which could ca r ry with i t some adverse impl ica t ions , bu t i t ' s merely a ques t ion t h a t should be answered d i r e c t l y and can be answered and d i s c l o s e t h e t r u e f a c t s .

Changes i n t he Code of C iv i l Procedure

Sharp: What about t h i s work with Judges [Albert C.] Wollenberg [S r . ] and [William T . ] Sweigert on the new r u l e s f o r t h e c i v i l cases?* This seemed t o be f a i r l y e a r l y i n your years on t h e bench.

Z i rpo l i : Yes, i n '62, I think. That was a committee t h a t Judge Harr i s s e t up. Most of t h e work was done by Judge Sweigert when you ge t r i g h t down t o i t . He had the knack f o r i t and the capac i ty to w r i t e r u l e s . He was a man who was very business- l ike and well organized. We worked wi th him, but b a s i c a l l y t o give our thoughts o r i deas . He wrote t h e whole th ing and we j u s t helped him make changes o r suggest ions.

*See "Revolutionary Changes i n Federal D i s t r i c t Court," by James Murray, i n Brief Case, Ju ly , 1962, pp. 10, 61.

Z i r p o l i :

Sharp :

Zirpol i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

This p r e t r i a l and discovery procedure'was j u s t beginning t o ge t i n t o f u l l bloom. I n the p r i o r yea r s , t h e r e was less d i s p o s i t i o n t o make f u l l d i s c lo su re o r t o admit f a c t s and Judge Sweigert , a s I s a i d , being very w e l l organized, decided w e ought t o r ewr i t e our r u l e s and rewrite them based upon the provis ions of the Code o f C i v i l Procedure a s they r e l a t e p a r t i c u l a r l y t o discovery and p r e t r i a l . So he d id a good job.

* We b a s i c a l l y fol low those r u l e s today. There have been modifi-

c a t i ons . There continues' t o be some modif icat ions.

A r e t he se r u l e s done d i s t r i c t by d i s t r i c t ?

Yes, so-cal led l o c a l r u l e s . Of course, i n 1963, the Northern D i s t r i c t o f Ca l i fo rn i a had two d i v i s i o n s , our d i v i s i o n and the Sacramento d iv i s ion , and these r u l e s were w r i t t e n f o r our d iv i s ion . They had the iq own l o c a l r u l e s f o r t h e Sacramento d i v i s i o n , although t h e judges here s a t i n Sacramento and the judges i n Sacramento s a t here from t i m e t o t i m e .

So they had t o keep s h i f t i n g ?

Well, t he re was no t too much s h i f t i n g , bu t t h e r e was some depending upon t h e volume of business and the needs.

Did you s e e some f a i r l y quick impact a f t e r t he se r u l e s were brought i n t o use? Did th ings r e a l l y change q u i t e a b i t ?

Oh, yes , c e r t a i n l y . These changes were h e l p f u l because w e w e r e a b l e t o ge t cases t o t r i a l a s soon a s they were ready. Now the whole procedure is i n a sense even more expedi t ious because t h e cou r t w i l l c a l l s t a t u s conferences and most cou r t s , a f t e r n ine ty days o r whatever per iod they want t o f i x , w i l l i n s i s t t h a t i f t h e r e has been no ac t i on i n the case t h a t t h e p a r t i e s be brought before t he cou r t . I f they don ' t i n d i c a t e a c t i v i t y , t h e case w i l l be dismissed. So t h a t prods the a t t o rneys .

The whole theory behind these r u l e s i s t h a t t he cou r t wants a l l cases f i l e d t o be the r e s p o n s i b i l i t y of t he c o u r t , t o p o l i c e them from the c r a d l e t o t he grave. While a case i s i n t he a t t o r n e y ' s o f f i c e , i t is t h e lawyer 's bus iness and the c l i e n t ' s bus iness , bu t t he day they come i n t o cou r t , then the r e s p o n s i b i l i t y of po l i c ing t h a t case and see ing to i t t h a t i t moves properly is t h a t of t h e c o u r t ' s . So t h i s theory of po l i c ing from t h e c r a d l e t o t h e grave was being given some meaningful support by these new r u l e s .

Could you comment on any r e s i s t a n c e on the p a r t of some a t t o rneys?

Zirpol i : Very frankly, I don' t r e c a l l any p a r t i c u l a r r e s i s t ance from t h e a t torneys . They were given an opportuni ty t o comment, and some a t torneys did. But I don' t r e c a l l any r e a l r e s i s t ance . These r u l e s required, f o r ins tance , t h a t t he lawyers meet i n advance of a p r e t r i a l hearing, confer, and agree on c e r t a i n things where they can and i n d i c a t e where they don't agree. They have t o s e t f o r t h i s s u e s and do a l l of the things t h a t . a r e necessary t o expedite t h e a c t u a l t r i a l and f a c i l i t a t e i t . The judge most knowledgeable on the new r u l e s and t h e i r prime author was Judge Sweigert.

Sharp: Okay, maybe we can ge t him t o t e l l us about--

Zi rpol i : Well, Judge Sweigert is i n h i s l a s t days.* It is very sad.

Sharp : I have heard t h a t he was ill.

Zirpol i : Yes, he has cancer and he is i n bad shape, so I don' t th ink you w i l l g e t anything more from Judge Sweigert.

Sharp: We ac tua l ly had done an o r a l h i s t o r y interview with Judge Wollenberg and Sweigert together . We have been unable t o ge t t he in terv iew back from Judge Sweigert, so i t i s unfinished a t t h i s poin t .

Sampling Ant i t rus t Cases: From E l e c t r i c a l Equipment t o Wall Products

Sharp : I would l i k e f o r us t o move on t o t a l k about a n t i t r u s t . What I have done i s t o ge t some quest ions about each case and then t o s h i f t t o a more general considerat ion.

Zi rpol i : .My f i r s t meaningful in t roduct ion t o a n t i t r u s t was t o a t t end a conference a t the request of Chief Judge Harr is i n the e l e c t r i c a l equipment cases. There were over 1,900 cases f i l e d throughout the country and a g rea t number of them were i n t h i s d i s t r i c t . So he s e n t me t o s i t with these judges who met i n a conference a t Palo Alto f o r t he purpose of working out a program f o r the handling of these cases .

That became my in t roduct ion a s a judge i n t o complicated multi- d i s t r i c t a n t i t r u s t cases. From the re on, I became the r ep resen ta t ive of t h i s cour t . One hundred and forty-four e l e c t r i c a l equipment cases o r thereabouts were assigned to me f o r what we c a l l common discovery.

*Judge Sweigert died on 16 February 1983.

Z i r p o l i : I n o t h e r words, t h e conference o f judges took t h e var ious product l i n e s t h a t were be ing fu rn i shed and s o l d by General E l e c t r i c and Westinghouse and Allis-Chalmers and ass igned d i f f e r e n t product l i n e s t o i n d i v i d u a l judges .

I took on one of t h e [product] l i n e s and my ca se s were s e t t l e d . These ca se s would be t r a n s f e r r e d t o you only' f o r d i scovery purposes. When t h e discovery was complete, t h e c a se presumably would go back t o t h e o r i g i n a l judgs i n sach ca se un less i t was s e t t l e d .

Af t e r a few went t o t r i a l (two o r t h r e e ) i n d i f f e r e n t p a r t s o f t h e country , they were a l l s e t t l e d . I n t h e f i r s t one p l a i n t i f f s go t a judgment a g a i n s t General E l e c t r i c f o r $29 mi l l i on . There was some ques t i on about t h e power o f t h e a s s ignee judge t o e n t e r t a i n t he se cases o r motions made i n connect ion w i t h them. I wro te an op in ion on t h a t s u s t a i n i n g t h e power of t h e t r a n s f e r e e cou r t .

So t h i s was my big i n t r o d u c t i o n t o a n t i t r u s t . Now, I had had some p r i o r a n t i t r u s t exper ience bo th as a p rosecu tor f o r t h e government and a s a counsel i n p r i v a t e l i t i g a t i o n .

Then, of course , t h e b i g g e s t c a se s were t h e gypsum ca se s . There were o t h e r cases o f a somewhat similar magnitude.

The Hughes Air West c a s e was a s e c u r i t i e s c a se , bu t i t had a l l t h e t r app ings o f a b i g a n t i t r u s t case . That c a se became s i g n i f i c a n t because Howard Hughes re fused t o respond t o a n o t i c e t o t ake h i s depos i t i on t h a t was i s s u e d by opposing counsel , t h e counsel f o r t h e p l a i n t i f f s , r ep r e sen t i ng t h e s tockholders o f Ai r West . Af te r g iv ing him every oppor tun i ty t o purge himself f o r h i s f a i l u r e t o submit t o a depos i t i on , I f i n a l l y en t e r ed h i s d e f a u l t . The p o t e n t i a l va lue o f t h a t d e f a u l t went i n t o many m i l l i o n s of d o l l a r s .

Sharp : :!ow d i d i t a l l end up then?

Z i rpo l i : They s e t t l e d . They ended up wi th a s e t t l emen t before me f o r some $37 m i l l i o n . They cou ldn ' t g e t around t h a t d e f a u l t . They t r i e d . They took an appea l and I was su s t a ined . They never go t anywhere and then f i n a l l y they s e t t l e d t h e case .

Sharp: You had mentioned t h a t you had been s o r t of t a n g e n t i a l l y involved i n t h e e l e c t r i c a l equipment c a se s , bu t I wasn ' t s u r e how you f i t i n t h e r e .

Z i rpo l i : No, I never go t involved excep t f o r discovery purposes , b u t t h e r e never was a t r i a l o f t h e ca se s ass igned t o me. The cases were a l l s e t t l e d . That took c a r e o f them f o r m e .

Sharp: How many judges were t h e r e involved i n t h e e l e c t r i c a l equipment c a se s a t your l e v e l , a t t h e d i scovery l e v e l ? Do you have any i dea?

Zirpol i : Oh, I would say t h i r t y o r more because the re were about t h i r t y d i f f e r e n t d i s t r i c t s involved. There were over 1,900 cases. When i t was a l l over they paid seve ra l hundred mi l l i on d o l l a r s t o t h e various p l a i n t i f f s throughout the country.

Sharp: That 's what I thought. W e l l , I think we can come back t o t h i s i n a b i t because I have some quest ions about the m u l t i d i s t r i c t l i t i g a t i o n .

Zirpol i : Y e s , I might say t h a t these meetings which we had r e s u l t e d i n the enactment of t h e m u l t i d i s t r i c t l i t i g a t i o n s t a t u t e .

Sharp: Oh, it did?

Zi rpol i : Yes, but I had had a p r i o r experience myself. Before we got i n t o the e l e c t r i c a l equipment cases, one of t he f i r s t a n t i t r u s t cases I had involved the furn ish ing of bleacher s e a t s f o r gymnasiums and stadiums i n schools throughout the country. I c a n ' t th ink of the name of the company now, but a t a l l events, t h e r e w e r e four d i f f e r e n t d i s t r i c t s involved. Judge Edwin A . Robaon of I l l i n o i s suggested t h a t we a l l meet i n Chicago and determine how t o handle these cases so t h a t we wouldn't each go of f on a d i f f e r e n t tangent.

I worked out a formula f o r i t , which was t o have common discovery. In o ther words, we take the deposi t ion of t h e defendant o r defendant employees once and a l l of t h e s t a t e s which were involved would appear a t t h e deposi t ion, o r where motions were involved they would a l l appear, and they would a l l agree t o be bound by t h e deposi t ion o r r u l i n g of t h e cour t . So you would have one deposi t ion ins tead of four f o r t he same person.

We went t o I l l i n o i s and we worked i t o u t , but the s t a t e of Cal i forn ia wouldn't go along with me. So I would j u s t en te r an order de fe r r ing any r u l i n g on any motions Cal i forn ia made u n t i l t he judge who heard t h e case pending i n t h e o the r th ree cour ts had made h i s ru l ing and I would en te r an i d e n t i c a l ru l ing . So it worked out a l l r i g h t and t h i s was the forerunner t o these meetings. Of course, Robson played on important r o l e i n the e l e c t r i c a l equipment cases. Other judges who played important r o l e s were Judge Joseph S. Lord, 111, Judge William H . Becker., Judge Hubert W i l l , and Judge Thomas J. Clary .

Sharp : Let ' s t a l k about some of these cases then. The f i r s t one (and I put these i n chronological order j u s t f o r ease) i s the Winchester Drive- In Theatre case.* I noticed immediately t h a t Joseph [L.] Alioto was

*Winchester Drive-In Theatre, Inc . , e t a l . v. Twentieth Century-Fox Film Company e t a l . , No. 39632, 232 F. Supp. 556 (1964).

Sharp: one of t h e a t t o r n e y s f o r t h e p l a i n t i f f . He is considered a n ( important a n t i t r u s t p l a i n t i f f ' s a t t o r n e y from what I know. Had he

come be fo r e you i n many o t h e r cases?


Sharp: What w a s t h a t l i k e ?

Z i r p o l i : H e appeared as counse l f o r p l a i n t i f f i n t h e Winchester c a se , which went t o t r i a l , bu t A l io to l o s t . I n t h a t case , A l io to wanted t o t e s t i f y and I s a i d he could no t t e s t i f y . I s a i d t h a t i f you t e s t i f y , you may no t a rgue t o t h e j u ry . H e e l e c t e d no t t o t e s t i f y .

H i s primary opponent w a s Al lan [N.] Lit tman, and h e was one lawyer t h a t knew how t o handle A l io to , I ' l l have t o say t ha t . * Not everybody knows how t o handle him, b u t Al lan Littman knew how t o do i t . H e d i d a good job, and h e even tua l l y got t h e v e r d i c t i n h i s favor .

Of course , A l io to w a s i n some of t h e e l e c t r i c a l equipment c a se s as w e l l , bu t h e w a s no t i n any of t hose be fo r e me. H i s f i r m was involved i n t h e gypsum ca se s . They r ep re sen t ed one l i n e , bu t he d i d no t pe r sona l l y appear . He r a r e l y appeared pe r sona l l y . An a t t o r n e y who is now i n Los Angeles appeared, Max [Maxwell M.] Blecher . He is now a famous a n t i t r u s t lawyer, too. They were a l l i n t h e Oakland Raiders c a s e i n Los Angeles.

Sharp: Oh, t h a t ' s r i g h t . I have a few ques t i ons then about t h e p a r t i c u l a r s o f t h e ca se .

The Syufy dr ive- ins had been i n an a n t i t r u s t c a se be fo r e , t h e so-cal led Rancho c a s e of 1958 w i t h t h e same problem bas ica l ly .**

Z i r p o l i : Y e s , and i n t h e p r i o r c a s e they i s s u e d r e l e a s e s which t h e j u r o r s i n t h e subsequent Syufy, Winchester Drive-In ca se found t o apply t o t h e new defendants i n Winchester.

Joseph A l io to had a very e f f e c t i v e method of p r e sen t i ng a c a s e which was t o put on a prima f a c i e c a s e f o r t h e p l a i n t i f f ( he w a s t h e p l a i n t i f f ' s a t t o r n e y most of t h e t ime) and r e l y on h i s a b i l i t i e s a s cross-examiner when t h e defense pu t on i ts case . I n t h a t regard , he w a s very good.

*Littman was an a t t o r n e y wi th P i l l s b u r y , Madison and Sut ro .

**Rancho Drive I n Theatre Corp. v . Fox West Coast Thea t res Corp. and United A r t i s t s Theatre C i r c u i t , Inc . , No. 37792, Nov. 8 , 1958.

Sharp: In t h i s p a r t i c u l a r case, i t seemed l i k e your opinion turned on t h e defendant 's s i t u a t i o n a s t o r t f ea so r s . There a r e some important comments t h a t you make toward t h e end about f e d e r a l cou r t s applying s t a t e law.

Zi rpol i : Yes. Well, you wouldn't apply s t a t e law i n a n a n t i t r u s t case because t h a t ' s t y p i c a l l y f e d e r a l l e g i s l a t i o n . So I s a i d you should apply t h e f ede ra l r u l e . The cour t o f appeals agreed t h a t I should apply t h e f e d e r a l r u l e .

Z i rpol i : Another important case was t h e attempt of t h e Department of J u s t i c e t o en jo in t h e merger of t h e Ci t izens National Bank of Los Angeles and t h e Crocker National Bank of San Francisco on t h e theory t h a t i t would r e s u l t i n a r e s t r a i n t on i n t e r s t a t e commerce.* I disagreed. I f e l t and concluded t h a t t h e money market, t h e a v a i l a b i l i t y of funds f o r a l l purposes was of such a na tu re t h a t i t was i n a sense r e a l l y nationwide f o r t h e b i g insurance companies making more loans f o r housing than t h e banks. Add t o t h i s t h e a c t i v i t y of your savings and loans and o the r ca tegor ies : c r e d i t union, savings and loan, insurance companies, and t h e banks, t h i s merger couldn ' t possibly have an an t icompet i t ive e f f e c t . There was no proof t h a t Crocker was going t o a c t u a l l y s t a r t de novo, so t o speak, e n t e r i n t o banking i n t h e Los Angeles metropol i tan a rea , and the re was no i n d i c a t i o n t h a t Ci t izens was going t o e n t e r i n t o banking i n San Francisco.

Then on top of i t , we had a s i t u a t i o n i n which Transamerica owned 41 percent of Ci t izens [National Bank] and Transamerica would be f ind ing i t s e l f i n poss ib le d i f f i c u l t i e s a s a bank holding company which would sub jec t i t t o t h e banking a c t s . On ana lys i s of t h e whole p i c t u r e , I concluded t h a t t h e community i n t e r e s t was b e t t e r served by having these banks merge than by not having them merge.

Sharp: There a r e two th ings i n p a r t i c u l a r t h a t s t r u c k m e . The passage of Bank Merger Act o r i g i n a l l y i n 1960 and then amendments i n 1966. And, i t in t r igued me t h a t you had so much of t h e h i s t o r y of t he l e g i s l a - t i o n i n your dec is ion . It seemed l i k e you wanted t o weigh f a i r l y heavy on t h e s i d e of what t h e intent--

Z i rpol i : I f Congress d idn ' t in tend any change, why d id they go t o a l l of t h i s t rouble? We were s a t i s f i e d t h a t Congress d e f i n i t e l y intended these changes and t h a t t he re were some o the r cons idera t ions when you t a l k about bank mergers t h a t do not neces sa r i l y apply t o t h e usual a n t i - t r u s t case .

Sharp: How d id 30u and Judge [Walter L . ] Pope and Judge [William T.] Sweigert d iv ide t he work on t h i s case?

. r po l i : W e d ivided i t o r i g i n a l l y on t h e quest ion of prel iminary i n junc t ion . Judge Pope wrote an opinion on t h a t . When t h e t i m e came f o r t he f i n a l opinion, h e was t h e p re s id ing judge and asked m e i f I would w r i t e i t . I s a i d yes , but I r e l i e d a g rea t dea l on what he had a l ready done. I thought t h a t , l eav ing m e ou t of i t , t h a t was a very good team, t he t h r e e of us. We had Judge Sweigert who was we l l organized and Judge Pope had some p r i o r banking knowledge.

Banking was no t new t o m e . I s tud ied banking a t co l l ege a t the Universi ty of Ca l i fo rn i a . I had been A.P. Giannini ' s messenger boy. My bro ther was a vice-president of a bank. I knew something about banking, probably not a s much a s I should have known, bu t t h a t was an i n t e r e s t t h a t piqued my c u r i o s i t y more than might otherwise have been t h e case .

Sharp: Your e x p e r t i s e o r a t l e a s t good working general knowledge of banking br ings up the ques t ion which is r e a l l y genera l , about t h e e x p e r t i s e of t he judge e s p e c i a l l y i n a n t i t r u s t cases where t h e r e a r e excru- c i a t i n g l y d e t a i l e d quest ions.

Z i rpo l i : Yes. I am no t claiming any r e a l expe r t i s e . I am j u s t say ing t h a t I had p r i o r exposure. "Money and banking" was t h e course t h a t I took, s o I had p r i o r exposure and I had t h e p r i o r experiences , unre la ted t o e x p e r t i s e , which were s u f f i c i e n t t o pique my i n t e r e s t and c u r i o s i t y and make me de lve i n t o i t i n g r e a t e r d e t a i l .

W e had many exper t s who w e r e c a l l e d i n t h e course of t h a t t r i a l , and t h a t case was t r i e d i n a r e l a t i v e l y s h o r t t i m e . That was a case t h a t was except iona l ly we l l prepared. I n o the r words, w e had an exce l l en t p r e t r i a l with everything properly marked--exhibits and witnesses ident i f ied--so t h e t r i a l moved with g r e a t r a p i d i t y . I don ' t th ink i t took more than two weeks t o t r y t h i s case. Under normal circumstances t h a t case could have gone on f o r a month o r two months bu t , a s I say , w e were wel l organized. W e made counsel f o r a l l p a r t i e s go by t h e r u l e s . W e made them prepare a p r e t r i a l s t a t e - ment and everything was done t h a t could possibly be done t o ge t t he case i n proper order f o r t r i a l .

Sharp: I t 's a very i n t e r e s t i n g case from t h e point of view of Bank of America, i t s h i s t o r y , and i ts growth and then t h e growth of Crocker and Ci t izens a s we l l . What would you say were t h e most persuasive arguments brought by M r . [Richard] Archer who was the a t t o rney f o r t h e defendant?

Zi rpol i : The most persuasive argument? He argued everything t h a t went i n t o t h a t opinion t o a g r e a t degree. H i s most persuasive argument i n t he f i n a l ana lys i s was t h a t the community r e a l l y benef i ted thereby, and

Zirpol i : t h a t i n t r u t h and i n f a c t t h e r e was no i n d i c a t i o n t h a t Crocker was about t o e n t e r met ropol i tan Los Angeles o r t h a t C i t i zens was about t o e n t e r San Francisco. This was t h e b i g t h ing t h a t t h e government was r e l y i n g on because they had a memo t h a t had been prepared by somebody from Transamerica, I th ink i t was--either C i t i zens Bank o r Transamerica because of t he relationship--which ind i ca t ed t h a t they ought t o look i n t o t h e p o s s i b i l i t y of a branch o f f i c e i n San Fran- c i sco . But i t i s one th ing t o t a l k about something t h a t you ought t o look i n t o and another t h ing t o know what you in tend t o do, and Solomon, who was p re s iden t of t h e Crocker Bank, was an except iona l ly good wi tness and a b l e t o convince us t h a t they couldn ' t make i t i f they had t o go i n de novo, and i f they t r i e d t o accomplish t he same ob jec t ive , i t would have taken them t en yea r s o r more. Those were t h e b a s i c arguments. Archer d id a good job i n t h e case , very good.

Sharp: I was i n t r i gued by Bank of America. Your connection wi th Bank of America goes back t o when you were a very young man.

Z i rpo l i : I added a foo tnote t h e r e on Bank of America t h a t was no t r e l evan t t o t h e case , bu t I j u s t wanted t o add i t anyway. It r e l a t e d t o Bank of America becoming t h e g o l i a t h of t h e West because A.P. Giannini ca te red t o t h e l i t t l e fel low, whereas llorgan was only i n t e r e s t e d i n depos i t s from t h e p re s iden t or execut ive of b i g corpora t ions .

Sharp: The Bank of America's image has changed s o much i n t h e many years t h a t have passed.

Z i rpo l i : Oh, yes . [pause]

Sharp: There a r e t h e t h r ee Wall Products v . National Gypsum cases .* I don ' t know how many Wall Products cases t h e r e a r e .

Z i rpo l i : Oh, t h e r e were over a 140 cases pending. What w e d id was t ake the f i r s t e leven and we t r i e d those a s a p i l o t c a se on t h e theory t h a t i f l i a b i l i t y was e s t ab l i shed , then these major companies would be forec losed from t h e denying l i a b i l i t y , s o t h a t once w e e s t ab l i shed

*The t h r e e cases r e f e r r ed t o here a r e Wall Products Co. e t a l . v . National Gypsum Co. e t a l . , Civ. Nos. 46414, 46455, 46487, 46640, 47195-47197, 47323, 38214, 38235, 38549, 38550, 48778-48784, 48787- 48789, 48797, and 48798, 326 F. Supp. 295 (1971) ; Wall ~ r o d b c t s Co. e t a l . v. National Gypsum Co. e t a l . , Civ. Nos. 46414, 46455, 46487, 47197, 48550, 48780-48782, 48787, 48789, and 48797, 357 I?. Supp. 832 (1973); and, Wall Products Co. e t a l . v . National Gypsum Co. e t a l . , Civ. Nos. 46414, 46455, 46487, 47197, 48550, 48780-48782, 48787, 48789, and 48797, 367 F. Supp. 972 (1973).

Zirpol i : the a n t i t r u s t v i o l a t i o n f o r t h e major companies--U.S. Gypsum and National--then we had t h e case es tab l i shed on l i a b i l i t y f o r a l l t h e cases . Af te r t h a t i t was going t o be a quest ion of what t h e damages were. So we f ixed damages i n i t i a l l y i n t h e f i r s t cases and I f ixed a t to rneys ' f e e s i n t h e f i r s t case. Af te r t h a t , i t became a quest ion of e s t a b l i s h i n g damages f o r t h e remaining cases and they f i n a l l y s e t t l e d . Now, they could have se t t led- - the defendants--settled these cases a l o t cheaper as t h e counsel f o r U.S. Gypsum ( the l o c a l counsel) a c t u a l l y wanted t o do, bu t t he house counsel and general counsel f o r U.S. Gypsum d idn ' t want t o s e t t l e . Eventually they had to .

The value t h a t came o u t of t h e gypsum case was t h a t i n t he course of t he l i t i g a t i o n , t h e p r i c e of gypsum wallboard dropped considerably and saved t h e consumers during t h a t per iod, and not too g rea t a per iod, some $87 mi l l ion . Then they ended up with a se t t lement of $67 mi l l ion . The monies were deposi ted a t 11 percent and we earned near ly $10 mi l l ion i n i n t e r e s t before t h e monies were pa5d out . That took ca re of t h e a t torneys ' f e e s , adminis t ra t ive cos t s , and everything.

Sharp: I hadn' t thought of t h a t s o r t of a r i t hme t i c and t h a t s o r t of genesis , not genes is but --

Zirpol i : I n f i x i n g t h e a t to rneys ' f e e we made a m u l t i p l i e r , depending upon t h e cont r ibu t ion t h e a t torney made t o t h e success of t h e case. The important t h ing the re is t h a t [ t he a t t o rney ] Fred [Frederick P.] Furth had spent a tremendous amount of h i s own money before h e got h i s f i r s t se t t lement .* He must have spent $150,000 o r more.

P l a i n t i f f s f i r s t s e t t l e d with one of t h e defendants, Kaiser Aluminum, a t a r e l a t i v e l y small f i gu re . Kaiser 's a t t o rney , Gordon Johnson, was very smart t o ge t h i s c l i e n t ou t of t h e case f o r about $100,000, nothing compared t o what i t would have cos t them had they gone t o t r i a l . Of course, t he Brobeck f i rm got ou t of t h e case because they d idn ' t e s t a b l i s h p a r t i c i p a t i o n on t h e p a r t of another named defendant, Georgia-Pacific.

Sharp: I was i n t e r e s t e d t o s e e t h a t i n terms of t h e importance of t h e case t h a t t he re was some s e t t i n g o u t of t h e r i g h t s of s e l l e r s i n p r i c e v e r i f i c a t i o n with respec t t o t h e i r consumers.

Z i rpol i : Yes, a s long a s they were c a r e f u l i n what they d id , t he re would be no v i o l a t i o n of t h e Robinson-Patman [Pr ice Discrimination] Act. I n o the r words, you say, "Is i t t r u e t h a t you a r e s e l l i n g f o r l e s s ? " That is a l l I want t o know. I don' t make too much inqui ry . Then I am e n t i t l e d t o meet t h e competit ion under t h e a c t . But i f I s t a r t t a lk ing about i t , what we a r e going t o do o r what can be done, then

*Furth was t h e a t torney f o r t h e p l a i n t i f f s , Wall Products Company.

Z i r p o l i : you a r e g e t t i n g beyond t h e p r o p e r a r e a t h e r e . I had some d i s c u s s i o n on t h a t somewhere.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

I t h i n k i t i s i n t h e 1971 c a s e . A t l e a s t t h a t i s what I was r e f e r r i n g t o . These gypsum companies l e a r n e d from each o t h e r t h i s new p r i c i n g program and c e n t r a l i z e d t h e p r i c i n g a u t h o r i t y then .

What happened i s t h a t U.S. Gypsum p u t o u t t h i s r e v i s i o n w i t h t h e unders tand ing t h a t i f everybody else d i d n ' t go a long, they would t a k e i t back and t h a t w a s my theory , t h a t such conduct c o n s t i t u t e d a v i o l a t i o n . Now, t h a t ' s why I c a l l e d i t conscious p a r a l l e l a c t i o n pursuant t o t h e t a c i t unders tanding by acquiescence. T h a t ' s t h e language t h a t I worked o u t and i t s t i l l a p p l i e s . [pause t o go through papers ] Sometimes I f o r g e t t h a t I wro te a l l o f t h i s s t u f f ! [pause] You go ahead.

I n t h e 1973 c a s e , you had t h e second h a l f of t h e s u i t from what I cou ld te l l and some d i f f e r e n t conc lus ions regard ing t h e r e s u l t s o f t h e p r i c e f i x i n g . Now, t h i s set of p l a i n t i f f s took t h e s u i t f u r t h e r t h a n t h e 1971 c a s e t o s a y t h a t they were a c t u a l l y p u t o u t of bus iness .

They claimed t h a t as an element of damages.

Yes, and I was i n t e r e s t e d i n t h e assessment o f t h e overcharges a s w e l l a s t h e assignment o f t h e p e n a l t y of t h e t r e b l e damages.

The overcharges were f i x e d by g e t t i n g a c t u a l f i g u r e s from d i f f e r e n t p a r t s o f t h e coun t ry . There were v e r y many market ing zones, r i g h t . I n t h e s e c a s e s i t i s d i f f i c u l t t o e s t a b l i s h damages w i t h any e x a c t i - tude . You c a n ' t b e e x a c t and i f you come up w i t h a good estimate and they d o n ' t c o n t r o v e r t i t , t h e n i t w i l l s t a n d .

What about t h i s i s s u e o f t h e p l a i n t i f f s ' o t h e r l o s s e s , t h e p l a i n t i f f s i n a n t i t r u s t c a s e s want ing t o ask f o r more than seems f a i r when it is d i f f i c u l t t o d e c i d e what is f a i r o r what i s reasonab le?

You would have t o prove s p e c i f i c a l l y t h a t they a c t u a l l y f o r c e d you o u t of b u s i n e s s . A s I r e c a l l , t h e y . n e v e r made a n adequate proof i n t h o s e c a s e s . I t h i n k I j u s t al lowed them damages based on t h e d i f f e r e n t i a l and t h e i r v a l u e s .

Yes, I wondered about what t h e formula w a s f o r a r r i v i n g a t i t .

I might add something very important about t h e wal lboard c a s e s . A l a t e r d e c i s i o n o f t h e Supreme Court would no t have p e r m i t t e d t h e wal lboard v e r d i c t f o r a l l p l a i n t i f f s , b a s i c a l l y on ly t h e f i r s t u s e r .

Sharp: Why is t h a t ?

Z i r p o l i : Because they then r e v e r t e d t o t h e theory t h a t t h e on ly one who can recover is t h e immediate purchaser . Y o u c a n ' t p a s s i t on. Now, I had no problem on t h a t because t h e v a r i o u s p a r t i e s invo lved worked o u t a formula--the p l a i n t i f f s - - t h a t was a c c e p t a b l e t o a l l o f t h e c l a s s e s and, as a r e s u l t , t h e damages were a p p l i e d only once and t h e n they were d i s t r i b u t e d p r o p o r t i o n a t e l y i n accordance w i t h your r e l a t i v e s h a r e o f t h e market and t h e c o s t s involved. A l a t e r d e c i s i o n , t h e I l l i n o i s Br ick [v. I l l i n o i s , 431 U.S. 720 (1976)], s a i d no.

Sharp: How much later was I l l i n o i s Brick?

Z i r p o l i : Oh, I d o n ' t know, a t least f o u r o r f i v e y e a r s later . I n f a c t , t h e r e was one gypsum c a s e t h a t remained u n s e t t l e d . The a t t o r n e y came i n and I t o l d him, "What a r e you going t o do now? You're o u t of luck . " Kaiser was invo lved w i t h t h i s company and Kaise r agreed t o pay them $30,000 t o g e t i t o u t of t h e way.

Sharp: That was t h e end o f i t a t t h a t p o i n t ?


Sharp: Is t h i s a good t i m e t o t a l k about t h e t r e b l e damages pena l ty?

Z i r p o l i : W e l l , t h e s t a t u t e p rov ides t h a t .

Sharp: I k n o w , b u t t h e s t a t u t e p r o v i d e s o t h e r s o r t s o f p e n a l t i e s t o o .

Z i r p o l i : The on ly s t a t u t e p rov ides f o r t r e b l e damages and a t t o r n e y s ' f e e s . What happens i s t h a t normally you p r e s e n t t h e c a s e when you are going t o a j u r y t r i a l i n such a f a s h i o n t h a t t h e j u r y w i l l merely f i x t h e damages and t h e c o u r t w i l l t h e r e a f t e r t r e b l e i t . Otherwise, you g e t i n t o a d i f f i c u l t a r e a : Should t h e jury know t h a t t h e damages a r e t o b e t r e b l e d ? P r e f e r a b l y n o t . So then they j u s t d e c i d e what t h e damages a r e . Then t h e c o u r t t r e b l e s them.

Then based upon t h e damages and t h e r e s u l t s , t h e c o u r t proceeds t o f i x t h e f e e . But t h e f e e is f i x e d based on t i m e consumed and t h e l e g a l f e e s c a l e e x i s t i n g a t t h e t ime, s o t h e a t t o r n e y s have t o j u s t i f y t h e i r a t t o r n e y f e e s by b r i n g i n g i n t h e i r r ecords . They b r i n g them i n . Then t h e c o u r t can apply some kind o f a m u l t i p l i e r because o f t h e compl ica t ion involved, t h e contingency b a s i s on which t h e c a s e w a s undertaken, and o t h e r f a c t o r s of t h a t c h a r a c t e r . T h a t ' s where t h e a t t o r n e y , Fur th , g o t h i s r e a l b e n e f i t because h e w a s t h e l e a d counse l , he w a s t h e counsel t h a t p ressed t h e case .

H e w a s t h e one who brought it t o a s u c c e s s f u l conc lus ion and, of course , he w a s lucky i n many r e s p e c t s because he w a s s t a r t i n g o u t on t h e theory t h a t i t was t h e in te rchange o f communications on p r i c e in format ion . It d i d n ' t t u r n o u t t o b e t h e b a s i s f o r h i s c a s e . H i s

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

case turned on some memoranda which had been w r i t t e n by and prepared by United S t a t e s Gypsum o f f i c e r s i nd ica t ing t h a t they were going t o put t h i s ou t and i f everybody accepted and agreed, t h a t would be i t , and i f they d idn ' t , i t wouldn't. This was something t h a t h e got i n t he course of discovery when h e was spending a l l of t h i s money f o r discovery .

Unfortunately, t he re a r e a l o t of s i t u a t i o n s i n which lawyers don ' t have a good a n t i t r u s t case. They f i l e i t i n t he hope t h a t they w i l l g e t t h e evidence t h a t they would l i k e i n t h e course of discovery. That happens q u i t e of ten .

I was going t o ask you about t h a t because the discovery has got ten s o e labora te now and has gone on so long.

There i s c r i t i c i s m t h a t t h e r e i s abuse of discovery, and t h e r e is , the re is d e f i n i t e l y abuse of discovery. But con t ro l l i ng i t is very d i f f i c u l t because a t t he same time you want t o curb any abuses, you c a n ' t preclude someone from g e t t i n g something t o which he might be e n t i t l e d .

Is t h e r e some way, do you th ink , of the judge o r some o the r person drawing some l i m i t s on discovery case by case?

Some judges f i x t he l i m i t on t h e number of i n t e r r o g a t o r i e s t h a t you can f i l e . While I have no s p e c i f i c l i m i t on the number of i n t e r - roga to r i e s t h a t a r e f i l e d , i f I f i n d t h a t they a r e oppressive, then I w i l l s u s t a i n objec t ions . Otherwise, I p re fe r t h a t t h e in te r roga- t o r i e s be l imi t ed pr imari ly t o t he ascertainment of t h e ind iv idua ls having the knowledge of t h e inc iden t s o r possession of t h e documents. When t h a t is e s t ab l i shed , i t is p re fe rab le t h a t they proceed t o t ake t h e depos i t ion of t h e ind iv idua l involved.

What is t h e most i n t e r e s t i n g p a r t of t he whole wallboard p r i c ing i s sue?

The p r inc ipa l problem?

The p r inc ipa l o r most interest ing--

The most s i g n i f i c a n t , of course, i s p r i c e f i x ing . It is t h e conspiracy of agreement t o f i x t h e p r i c e o r a conspiracy of agreement t o a l l o c a t e d i s t r i b u t i o n cen te r s among d i f f e r e n t manufacturers. I n o the r words, I ' l l say , "You take t h i s a r ea and I ' l l take t h i s a rea , I' and th ings of t h a t charac te r .

That is one of t he most common areas of a n t i t r u s t l i t i g a t i o n ?

Yes, probably t h e most common.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

I don' t t h ink we have gone over t h i s , bu t what would you say were t h e major impacts o r impact of t he wallboard cases?

The major impact of t h e wallboard case was t h e very f a c t t h a t i t reduced t h e p r i c e of wallboard immediately and throughout t h e proceedings and i t continued. Building c o s t s were going up during t h i s per iod. When you bear i n mind t h e f a c t t h a t bu i ld ing c o s t s were going up bu t t h e p r i c e of gypsum wallboard went down s u b s t a n t i a l l y , then you ge t a good idea of t h e bene f i t t h a t t h e consuming publ ic got from i t .

I don' t know i f they know t o thank you f o r t h e p r i c e going down.

[laughs s o f t l y ] Well, I am no t i n t e r e s t e d i n t h e thanks a s such. I mean I j u s t t r y t o do whatever I th ink i s r i g h t based on t h e law a s I s e e i t .

It seems l i k e t h e v ic t ims and t h e enemies ge t l i n e d up p r e t t y quickly i n an a n t i t r u s t s u i t a s an a r ea of l i t i g a t i o n . The idea of competi- t i o n i n American business i s a very sacred s o r t of element.

Yes, b u t a n t i t r u s t s t i l l remains a p a r t i a l l y con t rove r s i a l f i e l d . The approach t o a n t i t r u s t , unfor tuna te ly , may depend upon t h e adminis t ra t ion i n power a s f a r a s t h e Department of J u s t i c e is concerned. Some a t t o rneys general w i l l t ake a very s t r i c t view of i t and be very f o r c e f u l i n t h e i r a t tempts t o enforce t h e a n t i t r u s t laws, and o t h e r s won't b e t h a t way. They w i l l b e f a r more l i b e r a l .

So you have seen q u i t e a few swings?

I would say you see some swings. When you ge t i n t o t h e c r imina l prosecut ion end of i t , which you don ' t ge t too o f t e n , then you g e t more f i g h t i n g on t h e p a r t of t h e i ndus t ry . The [U.S.] a t t o rney gene ra l ' s o f f i c e , unfor tuna te ly , has no t been a b l e t o compete with p r i v a t e counsel. The l i t i g a t i o n goes on f o r yea r s , t h e adminis t ra- t i o n changes, t h e a t t o rneys i n charge, l e t ' s say, of t h e M a B e l l [American Telephone and Telegraph] cases , by t h e t i m e they f i n i s h i t , they w i l l have had a t l e a s t s i x , seven, o r e i g h t d i f f e r e n t a t t o rneys i n charge i n and out of t h e adminis t ra t ions . You ge t t he I B M cases , which have been going on f o r years before Judge Ede l s t e in i n New York. God knows how many d i f f e r e n t government lawyers have been i n t h a t case , whereas t h e r ep re sen t a t i on on t h e p a r t of I B M has been p r e t t y cons i s t en t throughout. The r ep re sen t a t i on of t h e telephone company has been cons i s t en t throughout.

I was j u s t wondering i f t h e r e w e r e o t h e r s o r t s of ques t ions I could ask you about t h e length of t h e cases .

Zi rpo l i : They t ake q u i t e a whi le , t h e a n t i t r u s t cases . I had ano ther a n t i - t r u s t c a se invo lv ing t h e A l io to f i rm and t h a t i s t h e P a c i f i c Far Eas t Line, bu t t h a t is very r e c e n t , i n which I dismissed t h e ca s e i n t h e form of a s a n c t i o n because o f t h e f a i l u r e of P a c i f i c Far East Line and i ts counsel t o comply w i th t h e discovery o r d e r s of t h e cou r t and I a l s o found f raud on t h e c o u r t . I had t h e testimony from John A l io to who w a s t h e p r e s iden t of t h e P a c i f i c Far Eas t Line and I w a s s a t i s f i e d t h a t h e w a s no t t r u t h f u l i n h i s answers t o t h e p r i o r r e b a t e p r a c t i c e s of t h e P a c i f i c Fa r Eas t Line.

Now, t h a t c a s e is on appea l . What t h e c o u r t of appea l s w i l l do with i t , I don ' t know, because t h e f i e l d of s anc t i ons is a f i e l d t h a t is t o a g r e a t degree w i t h i n t h e d i s c r e t i o n o f t h e t r ia l judge, b u t t h e cou r t of appeal may say t h a t I went too f a r , t h a t I should have j u s t made them pay monetary damages i n s t e a d o f d i smiss ing t h e case .

I dismissed t h a t c a se because I f e l t t h a t t h e defendants were denied t h e i r f u l l p r i v i l e g e s , t h e i r f u l l defense. The d e n i a l of d iscovery had s o p re jud iced t h e i r case and then I had some s e r i o u s doubts on t h e a b i l i t y of t h e defendants t o prove t h e i r defense i n t h e l i g h t of what had t r an sp i r ed .*

Sharp: The i s s u e of t h e a t t o r n e y s ' f e e s , which is t h e main concern i n t h e o t h e r 1973 Wall Products v . Nat ional Gypsum, I am no t s u r e t h a t we need t o say any th ing more about i t .

r p o l i : I n t h a t case I l i m i t e d t h e a t t o r n e y s ' f e e s t o t h e time involved i n e s t a b l i s h i n g t h e Sherman v i o l a t i o n . I denied them compensation f o r those e f f o r t s and time and depos i t i ons involved i n t h e so-ca l led Robinson-Patman v i o l a t i o n . I n o t h e r words, I f i x a t t o r n e y s ' f e e s based on t h e r e s u l t s achieved and t h e successes ob ta ined , and where t h e r e a r e no successes , I don ' t g r an t a t t o r n e y s ' f e e s .

Sharp: Is t h a t s o r t of a genera l rule f o r you?

Z i r p o l i : With me, yes , b u t i t is no t very c l e a r r i g h t now. Some c o u r t s say i f you p r e v a i l , you should c o l l e c t on every th ing . I f you have two t h e o r i e s and you p r e v a i l on one, you should b e a b l e t o c o l l e c t whatever you had t o expend. I am no t ready t o buy t h a t i n i ts e n t i r e t y .

Sharp: Why?

*Upon h i s review of t h i s in te rv iew, Judge Z i r p o l i noted t h a t h e had been a f f i rmed i n t h i s case by t h e Ninth C i r c u i t Court of Appeals i n a l l r e s p e c t s .

Zi rpo l i : Because i f you have a theory on which you don ' t p r e v a i l , t h e r e is no reason why you should i ncu r a l l o f t h e s e c o s t s and r e q u i r e t h e o t h e r s i d e t o pay f o r them, have them i n c u r c o s t s on an i s s u e t h a t you c a n ' t s u s t a i n . For t h e one t h a t you s u s t a i n , yes , I understand i t ; you p r e v a i l and t h a t ' s what you should b e paid f o r , bu t I don ' t t h ink t h a t t h e defendant should pay f o r an i s s u e i n which h e pre- v a i l e d j u s t because t h e p l a i n t i f f p r eva i l ed on t h e o t h e r i s s u e .

Sharp: Because i t could go on and on?


Sharp : I hadn ' t r e a l i z e d t h i s be fo r e , b u t I s a w t h a t i t i s only i n a n t i t r u s t l i t i g a t i o n t h a t recovery of a t t o r n e y s ' f e e s are provided on t op o f t r e b l e damages.


Sharp: I wondered why t h a t was.

Z i rpo l i : To encourage p r i v a t e enforcement s o t h e lawyers w i l l t ake t h e s e ca se s and enforce t h e a n t i t r u s t laws. I f you don ' t g ive them an i n c e n t i v e , they a r e n o t going t o t a k e on a complicated ca se t h a t may invo lve t h e expendi tu re of very s u b s t a n t i a l sums, p a r t i c u l a r l y i f they t ake i t on a contingency b a s i s . The a t t o r n e y s ' f e e s a r e pa id t o t h e p l a i n t i f f s o t h a t i f you recover , by way of i l l u s t r a t i o n , a v e r d i c t of l e t ' s s ay $750,000 and t h e judge a l lows $250,000 a t t o r n e y s ' f e e s ; t h a t becomes a t o t a l o f $1 m i l l i o n t o t h e p l a i n t i f f , bu t i f t h e a t t o r n e y h a s a 40 percen t contingency f e e c o n t r a c t , h e g e t s $400,000 i n s t e a d of t h e $250,000. Some people t h ink t h a t t h e a t t o r n e y g e t s t h e f e e t h a t ha s been f i x e d by t h e c o u r t . No, t h e f e e i s awarded t o t h e c l i e n t ( t h e p l a i n t i f f ) and then t h e a t t o r n e y ge t s h i s f e e i n accordance w i th h i s con t r ac t .

Sharp: The encouraging of p r i v a t e a t t c r n e y s t o t a k e t h e s e types of a n t i t r u s t c a se s then l e s s e n s t h e burden on t h e government e s s e n t i a l l y ?

Z i r p o l i : Y e s , t h e r e is more enthusiasm on t h e p a r t of p r i v a t e counsel . [ l a u g h t e r ]

Sharp: I would t h ink so . The U.S. a t t o r n e y i s n ' t going t o b e n e f i t i n q u i t e t h e same way a s t h e p r i v a t e a t t o r n e y . I n s e t t i n g t h e s e f e e s , you drew on an e a r l i e r Ninth C i r c u i t c a se regard ing Twentieth Century-Fox f i l m from 1964.

Z i rpo l i : Yes . Sharp: That had given some gu ide l i ne s f o r a t t o r n e y s ' f e e s .

Z i r p o l i : There w e r e o t h e r c a se s bes ides those .

Sharp: Right, yes , bu t I was i n t r i gued though t h a t i t was a c t u a l l y a Ninth C i r c u i t case t h a t you se l ec t ed .

Z i rpo l i : It was a Ninth C i r c u i t case, b u t t h e r e was another case t h a t t h e Ninth C i r cu i t had been following, i f I am no t mistaken.*

Sharp: The poin t is a small one r e a l l y , bu t I was i n t e r e s t e d t o s e e t h a t you were looking back t o t h e Ninth C i r c u i t f o r some suggest ions.

Z i rpo l i : Well, I always look t h e r e f i r s t !

Sharp: That seems a good move.

I n t h a t l a s t c a se , which i s a f a i r l y s h o r t one, one t h a t you dismissed, Franck v. Carborundum, a ho r i zon ta l p r i c e f i x i n g case t h a t you dismissed because of l a c k of evidence--**

Z i rpo l i : Franck had f i l e d a number of a n t i t r u s t cases . When anybody so ld him anything he d i d n ' t pay h i s b i l l s and they would ask him t o pay o r sue him, h e would then f i l e an a n t i t r u s t case aga ins t them. I have had him i n here before . I n t h i s case , h e wasn't a b l e t o e s t a b l i s h anything r e a l l y , s o I j u s t threw i t ou t . I n t h e l a s t c a se I had with him, even h i s son was going t o t e s t i f y aga ins t him. H e w a s doing i t t o harass i n t he hope they would pay him o r d i scharge h i s indebtedness t o them.

Sharp: So people b r ing i n t h e a n t i t r u s t cases f o r a l l s o r t s o f gr ievances.

Z i rpo l i : And i n propr ia persona. The sad p a r t of i t is , he [Franck] is a f a i r l y i n t e l l i g e n t man. H e might have been a good lawyer i f he had s tud i ed law. But he wasn' t an honest man.

General Concerns i n t h e Area of A n t i t r u s t

Sharp: That b r ings me a l l t h e way around t o some more general ques t ions about a n t i t r u s t . Of a l l of t h e a n t i t r u s t cases t h a t have come before you s o f a r , what a r e t h e most d i f f i c u l t ones t o s o r t o u t ?

*Perkins v. Standard O i l Company of Ca l i fo rn i a , 474 F. 2d 549 (1972).

**Herman D. Franck et a l . v. m., Nos. C- 71-278, C-73-0146 and C-74-0177, 347 F. Supp. 83 (1977).

Zirpol i : One of the d i f f i c u l t cases n a t u r a l l y was t h e Howard Hughes case where I had entered a de fau l t . I f I s t a r t picking them on t h e b a s i s of d i f f i c u l t y , t h a t is number one. Number two, I would say the P a c i f i c Far East Line case was very d i f f i c u l t because t h a t ' s a case where you had t o f i n d some fraud t h a t w a s being exercised on t h e cour t . You had to f i n d t h a t t he re was a d e l i b e r a t e des t ruc t ion of t h e discovery process, th ings you don' t l i k e t o do. So those a r e t he most d i f f i c u l t .

Probably P a c i f i c Far East was even more d i f f i c u l t than Hughes because i n t he Hughes case, a s I s a i d , I entered a d e f a u l t a s f a r as Hughes was concerned i n the two companies he owned. Hughes had w r i t t e n me a l e t t e r (and I v e r i f i e d t h a t i t had been signed by him) i n which he s a i d , "I have no ob jec t ion t o my depos i t ion being taken, bu t a t the proper time and place and under appropr ia te circumstances."

So I s a i d t o h i s counsel, "Mr . Hughes ts t e l l i n g the cour t what t o do, so t o speak." A s t he p r inc ipa l witness he was denying t h e p a r t i e s t he e s s e n t i a l evidence t h a t they needed t o prove t h e i r case, s o I j u s t entered t h e de fau l t .

When h i s lawyers appeared before me, I s a i d t o h i s lawyers, "Are you t e l l i n g me t h a t M r . Hughes w i l l s e e me i n h e l l before he w i l l submit t o a deposi t ion?" Then I s a i d , "If you a r e , you t e l l M r . Hughes he i s going t o have t o wait a long, long time." Hughes died about t h ree years ago and he w i l l s t i l l have t o wai t a long time before I jo in him.

Now, t h e Hughes case was a s e c u r i t i e s fraud case, bu t i t has much of t h e aura of an a n t i t r u s t case and the problem. t h a t a r i s e a r e very much t h e same.

Sharp: I f you look j u s t a t j u s t t h i s s h o r t s t ack of cases a l t oge the r , i t seems t h a t p a r t of i t is t ry ing t o f i g u r e out whether o r no t some- th ing i s r e a l l y a v i o l a t i o n i f i t hasn ' t come up before.

Z i rpol i : What you do is you review a l l of t he f a c t s . You look a t what is supposed t o be t h e re levant market i n which t h e competit ion takes place, and does t h e conduct of t h e p a r t i e s c o n s t i t u t e what is known a s an unreasonable r e s t r a i n t on t r ade . I f t h e i r conduct r e s u l t s i n unreasonable r e s t r a i n t on t r ade , then you take whatever ac t ion i s necessary.

I had one which was a d i v e s t i t u r e case involving one of t h e major paper companies. Eventually I ru led t h a t they should d ives t themselves of t h e i r San Francisco u n i t . I remember I wanted+to keep t h i s s e c r e t . I d i d n ' t want anybody t o know what my r u l i n g was going t o be, u n t i l I a c t u a l l y issued i t , because I was a f r a i d i t would have a r eac t ion on the s tock market a s t o t he companies involved. It

Zi rpo l i : turned o u t t h a t t h e on ly r e a c t i o n on t h e s t o c k market was t h a t i t moved down one-eighth o f a po in t . [ l augh t e r ]

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Not a g r e a t one!

No.

Could we t a l k about v a r i e t i e s o f p e n a l t i e s a b i t ? I n 1974, P r e s iden t [Gerald R.] Ford s igned a new a c t , t h e A n t i t r u s t Procedures and P e n a l t i e s Act, which is a c t u a l l y a f t e r s e v e r a l of t h e s e ca se s , which changed p e n a l t i e s f o r a n t i t r u s t v i o l a t i o n s o f t h e Sherman Act.

That was on t h e c r imina l s i d e .

Yes. There a r e t h r e e a r e a s : changing t h e charge from a misdemeanor t o fe lony , i n c r e a s i n g t h e [maximum] j a i l sen tence , and then upping t h e [maximum] f i n e . Apparently, t h i s was passed a f t e r y e a r s and yea r s o f d i s cus s ion on t h e p a r t o f Congress. Since we haven ' t t a l k e d very much about t h e c r im ina l s i d e , I thought we might f o r j u s t a b i t .

Criminal a n t i t r u s t c a se s a r e r a r e , ve ry rare. I f I go back over twenty-five y e a r s , I don ' t t h ink I can, i n my own mind, con jure up more than t h r e e o r f ou r c r im ina l c a se s i n t h i s d i s t r i c t .

Why are they s o r a r e ?

Because a c i v i l c a se w i l l s e r v e t h e necessa ry remedial purpose. Af te r + succe s s fu l decree i n a c i v i l c a se t h e government r a r e l y goes a f t e r them i n a c r im ina l case . Of course , t h e f i r s t one I p a r t i - c i p a t e d i n was t h e lumber p roduc ts c a se , i n t h e p rosecu t ion of which I a ided Tom [C.] Clark. That goes back t o 1941.

S ince 1941 t o t h i s day, I have some s e r i o u s doubts t h a t anyone can p o i n t t o more than f i v e o r s i x c r im ina l p rosecu t ions i n t h i s d i s t r i c t .

[Around 19571 one o f them involved w i r e n a i l s and t h e Japanese impor te r t he r eo f . I was defense counsel then and I r ep re sen t ed Nissho Iwai, one o f t h e b igges t t r a d i n g companies i n t h e world. My people were not i n d i c t e d because I cooperated wi th t h e government. I found o u t what was happening and immediately s a i d t o t h e government p rosecu tor , "Look, t e l l us what you want u s t o do." The government f i l e d s u i t a g a i n s t o t h e r s and they then ended t h e ca se s by e n t r y o f consent decrees . Sometimes t h a t is a l l t h a t happens. There were t r e b l e damage s u i t s t h a t followed t h e r e a f t e r , bu t my people were never involved w i th them. We were very f o r t u n a t e . So you can t h i n k of a few c r im ina l c a se s , bu t I r e a l l y have a tough t i m e g iv ing you t h e name o f an a n t i t r u s t c r im ina l c a se .

Sharp: It does br ing up t h e ques t ion though of p e n a l t i e s f o r c i v i l an t i - t r u s t l i t i g a t i o n . I t ' s f i n e s mostly?

Zi rpol i : Yes, mostly f i n e s . Once i n a while , a six-month j a i l sentence w i l l be imposed.

Sharp: Do you consider f i n e s t o be t h e most e f f e c t i v e remedy?

Zi rpol i : No, because t h e ind iv idua l doesn ' t pay i t , t h e company pays i t . General E l e c t r i c can a f fo rd t o pay f i n e s . Rarely has anyone gone t o j a i l f o r a n t i t r u s t v i o l a t i o n s and i f they have, f o r no t more than s i x months, a s I r e c a l l .

Sharp: Is the re another s o l u t i o n t o a l l of t h e a n t i t r u s t l i t i g a t i o n ? The t r u s t p rac t i ce s i s what I am asking.

Zi rpol i : No, I don' t know of any o the r so lu t ion . Unfortunately, i t is a long and d i f f i c u l t one. The whole process i s so long and d i f f i c u l t . You have t o e s t a b l i s h a r e l evan t market; you have t o ' e s t a b l i s h t h e p a r t i - c ipa t ion ; you have t o e s t a b l i s h t h e conspiracy; you have t o e s t a b l i s h the impact on the market; and th ings of t h i s cha rac t e r . I have had o ther a n t i t r u s t cases . I remember an I B M [ In t e rna t iona l Business Machines] case involving [computer] software.* I ru led t h a t t h e r e was no impact, t h a t t h e conduct of I B M d id not r e s u l t i n damages. The Ninth C i r c u i t Court of Appeals s e n t i t back saying, "You d i d n ' t i n q u i r e enough. I' I th ink they were wrong, but I am not going t o argue! [laughs] That remains to be resolved. The case has now been s e t t l e d .

I had another one involving t h e t rucking indus t ry , but t h i s was a l s o on t h e c i v i l s i d e . That went up on appeal and i t ' s back now f o r f u r t h e r t r i a l based on t h e ques t ion of whether o r no t t h e defendant, Ca l i fo rn i a Trucking Association, was properly a s s e r t i n g i t s F i f t h Amendment r i g h t s o r whether they were using t h i s a s a subterfuge t o f i x prices.**

Sharp: What about the recidivism? Corporations, general ly l a r g e corporat ions e spec i a l ly , a r e showing up aga in and aga in i n a n t i t r u s t l i t i g a t i o n .

Zi rpol i : There i s n ' t t h a t much. Where would you f i n d i t ? Maybe Standard O i l . By way of i l l u s t r a t i o n , you would s e e one o r two cases involving Standard O i l . The gypsum people were involved once before, about thirty-odd years ago.

*Symbolic Control v . In t e rna t iona l Business Machines Corporation, C- 71-2207 A J Z (Dec. 31, 1975), reversed, 643 F. 2d. 1339 (1980)

**California Trucking Associat ion v . Brotherhood of Teamsters, 679 F. 2d. 1275 (1981).

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

I haven' t seen y e t any J u d i c i a l Conference committee, f o r example, on a n t i t r u s t t r y i n g t o f i g u r e ou t what t o do about i t .

The J u d i c i a l Conference has on occasion i n t e r e s t e d i t s e l f i n l e g i s l a t i o n t h a t could be deemed t o be a n t i t r u s t i n charac te r , bu t i t avoids tak ing any pos i t i ons because t h i s i s not a j u d i c i a l funct ion. I mean, enac t ing t h e law is not a j u d i c i a l func t ion . The only time we would take an i n t e r e s t is when the re is a poss ib le impact on the cou r t s .

I n o the r words, i f you had l i t i g a t i o n which would permit a user t o sue on behalf of every use r i n t h e United S t a t e s , t h i s would be of g rea t concern t o t he cour t s , and while they haven't had l e g i s l a t i o n q u i t e t o t h a t degree, t he re have been s t a t u t e s proposed from time t o time ( t h a t have y e t t o be enacted) which would begin t o take on a magnitude of t h a t cha rac t e r . Of course, t h e J u d i c i a l Conference has opposed t h a t type of l e g i s l a t i o n because, a f t e r a l l , whatever you ,get has to be manageable.

What about t h e s k i l l s and t h e e f f o r t s t h a t t h e t r i a l cou r t judge uses i n a n t i t r u s t cases genera l ly , simply because of t h e s i z e and the length?

The s i z e and t h e length and h i s knowledge of t h e p a r t i c u l a r a r ea . He has to educate himself , t h a t ' s what i t amounts t o . I n t h e IBM case on software, I had t o educate myself on t h e use of computers and software (of which I knew nothing before t h e t r i a l s t a r t e d ) , and I had a g lossary of about two and one ha l f inches t h i c k of language t h a t I had t o l e a r n . This was very complicated software which they used i n equipment t o manufacture a i rp l anes and things of t h a t charac te r where, by use of t h e numerical process, you could s e t up a machine t h a t could c u t a l l of t he s t e e l and t h e gear and every- t h ing t h a t was needed.

Done by computer programs.

That ' s what happens t o f e d e r a l judges when they ge t appointed to t h e bench. They know nothing about pa ten t law and they have to take t h e t rouble t o read about i t and l e a r n about i t . Most of them know nothing about admiral ty . They have t o take t h e t rouble t o l e a r n about i t and read about i t .

I don ' t know q u i t e how to ask t h i s , but a r e you genera l ly s a t i s f i e d t h a t you found out enough t o work wi th each case?

I to ld you t h e s t o r y before, d i d n ' t I, t h a t of Judge George M. Bourquin of Montana? Judge Bourquin was an o l d judge i n Montana who had never t r i e d an admiralty case. He came t o San Francisco to t r y an admiral ty case. He ca l l ed the lawyers involved i n t o h i s chambers and s a i d , "Gentlemen, I know nothing about admiral ty law. Therefore,

Zi rpo l i : I wish you would fu rn i sh me with t h e t e x t you th ink I should read and t h e ma te r i a l I should read i n prepara t ion f o r t h i s t r i a l , " and so they d id .

When the t r i a l was over , h e s a i d , "Counsel, w i l l you p l ea se come t o my chambers?" When they got i n t o h i s chambers, h e s a i d , "Gentlemen, be seated. I want t o t e l l you fel lows t h a t you have got a h e l l of a l o t t o l e a r n about admira l ty law." [ laughs]

There you a re ! That 's t h e kind of p repara t ion t h a t you have t o indulge i n .

Sharp: Because t h e r e is some f e e l i n g t h a t t h e whole t h ing should be reworked and t h a t t h e r e should be--

Z i rpo l i : There a r e f e e l i n g s t h a t t h e t h ings should be reworked, and t h a t w e ought t o have spec i a l i zed judges with e x p e r t i s e i n p a r t i c u l a r a r e a s and f i e l d s . Even t h e ch ie f j u s t i c e [Warren Burger] ha s expressed himself on t h i s s u b j e c t , bu t I am not i n accord with t h i s view. I mean t h e r e i s n ' t anything t h a t t h e lawyers can do f o r which they cannot properly prepare t h e cour t o r f o r which t h e cour t cannot properly prepare. I f they have got a case and they want t h e judge t o ge t an education, they can g ive him a g lossary a s they gave m e with t he sof tware. They can g ive him a s ta tement of t h e whole ope ra t i ve procedure of input f o r purposes of use i n computers and th ings of t h a t cha rac t e r . Then they can w r i t e proper b r i e f s . There i s no reason why i t shouldn ' t b e t h a t way i n my view.

There a r e a l o t of people who won't agree with me. They th ink you ought t o have judges, a s p e c i a l judge handl ing pa ten t law, a s p e c i a l judge handl ing admiral ty o r a n t i t r u s t o r s e c u r i t i e s f raud .

I discovered the same th ing i n my TECA, Temporary Emergency Court of Appeals, t h a t I s i t on. I knew nothing about o i l and gas r egu la t i ons a f f e c t i n g a l l o c a t i o n and p r i c ing , bu t t h e r egu la t i ons and p r i o r dec is ions were t h e r e f o r m e t o read . I was a b l e t o read t h e r egu la t i ons , l e g i s l a t i v e h i s t o r y , and preceding cases . Strangely enough, no member of t h a t cour t had any p r i o r e x p e r t i s e i n t he f i e l d . Yet t he [U.S.] Supreme Court has not t o d a t e accepted c e r t i o r a r i i n a s i n g l e one of t h e i r cases . Their dec i s ions have been f i n a l . I mean i f you a r e going t o ca r ry i t t o t h a t extreme, you might a s w e l l g e t spec i a l i zed judges on the [U.S.] Supreme Court.

Sharp : What about c i r c u i t cou r t review, a p p e l l a t e review, of d i s t r i c t cour t a n t i t r u s t dec i s ions? Do you have any sense of a genera l c r i t e r i a f o r a n t i t r u s t dec i s ions review o r is i t t h e same a s any o t h e r case? A r e t h e r e s p e c i a l t h ings going on?

Zi rpo l i : I don ' t know. I have been sus ta ined i n most of my cases , bu t t h e two of them which were s e n t back t o me, I could never understand. [ laughter ] One of them w a s on t h e quest ion of impact.* I found the re w a s no impact. I f t h e r e is no impact, no damage, t h a t ends i t . I w a s going t o assume everything e l s e , v i o l a t i o n s o r anything you want. They sa id , oh, no, I should go i n t o t h e v i o l a t i o n s and so f o r t h . But I had assumed them, so t h a t t h e r e was no need t o go i n t o them. So I don' t know.

In t h e o the r one,** I concluded t h a t t h i s company t h a t was complaining about t a r i f f s was exe rc i s ing i t s s t a t u t o r y r i g h t t o complain about t a r i f f s , bu t t h e Ninth C i rcu i t Court of Appeals s a i d no. The cour t of appeals s a i d maybe they had an u l t e r i o r motive and were jus t . t r y i n g t o c r e a t e an unlawful, unreasonable r e s t r a i n t i n t r ade , th ings of t h a t charac te r . So I don ' t know, I don' t know t h a t they a c t d i f f e r e n t l y i n t h e i r handling of a n t i t r u s t than any o the r type of case.

Sharp: Is the re anything t h a t can be done, do you th ink , t o ea se t h e backlog of t h e a n t i t r u s t cases t h a t a r e i n t h e cour t s cu r r en t ly?

Zi rpol i : The only th ing t h a t I know of t h a t can ease i t i s t o impose sanc t ions where f r ivo lous cases a r e brought; beyond t h a t , I don' t know.

Sharp: What is and what i s n ' t f r i vo lous i s up t o t he judge somehow?

Z i rpo l i : He can t e l l from t h e f a c t s , say i f a fe l low l i k e Franck br ings a f r i vo lous s u i t . Franck v. Carborundum is a good i l l u s t r a t i o n .

I w i l l t e l l you t h a t one of the e a r l y cases t h a t I had was aga ins t a judge, [Marvin] Sherwin of Alameda County. That was when the judges he re had t o d i squa l i fy themselves because of previous profess iona l r e l a t i o n s with him. It was i n June of '63 t h a t t h e dec is ion came out from the Ninth C i rcu i t Court of Appeals. I have forgot ten t h e d a t e of t h e t r i a l , bu t it was a t l e a s t a year before t h a t , so I was r e l a t i v e l y new on t h e bench. The members of our cour t asked me t o take over the case and I d id . He was found g u i l t y of v i o l a t i o n of t he income t a x laws. It was a very i n t e r e s t i n g case because he re was a judge who was on t r i a l , a former l e g i s l a t o r , and who had served on t h e [Assembly] Revenue [and Taxation] Committee of the l e g i s l a t u r e . He was saying t h a t he d i d n ' t understand the i n t e r n a l revenue laws!

*Symbolic Control v. In t e rna t iona l Business Machines Corp. (1975)

**Cal. Trucking Assn. v. Broth. of Teamsters (1981).

Z i r p o l i : I p res ided over t h a t t r i a l . The o n l y q u e s t i o n t h a t was u l t i m a t e l y r a i s e d on appea l was r e l a t e d t o t h e i n s t r u c t i o n s t h a t I had g iven t h e ju ry . The i n s t r u c t i o n s t o which they o b j e c t e d were i n s t r u c t i o n s t h a t I had p rev ious ly advised counse l I would g i v e . Sherwin's lawyers n o t o n l y d i d n o t o b j e c t b u t they had a c t u a l l y approved t h e i n s t r u c t i o n s I gave.

Sharp: There i s a n o t h e r e a r l y c a s e t h a t you wanted t o t a l k about t h e r e ?

Z i r p o l i : Now, i f we start going over c a s e s , t h e r e were a l o t o f c a s e s i n v o l v i n g p r i s o n s such a s Santa Rita and t h e s tate p e n i t e n t i a r y p r a c t i c e s .

Sharp : I thought we would spend some time on t h e p r i s o n e r s ' r i g h t s c a s e s . The f i r s t coup le of t i m e s t h a t I was h e r e , we p icked some from t h e Lex is p r i n t o u t . I thought I would send those over t o you and you could see them.

Is t h e r e a changing p rocess of t r y i n g a n t i t r u s t c a s e s from t h e 1960s from when you f i r s t came on?

Z i r p o l i : Change?

Sharp: Change j u s t i n t h e process o f t h e way t h a t they a r e conducted?

Z i r p o l i : No, except p o s s i b l y they a r e b e t t e r prepared f o r t r i a l . I mean t h e c a s e s a r e more thoroughly b r i e f e d . /I /I

Sharp: A r e t h e r e some d i f f e r e n c e s between t h e p r i v a t e a n t i t r u s t and t h e c a s e s brought by t h e U.S. a t t o r n e y ' s o f f i c e ?

Z i r p o l i : B a s i c a l l y , t h e r e should b e no d i f f e r e n c e because t h e government h a s t o e s t a b l i s h a r e s t r a i n t i n t r a d e , unreasonable r e s t r a i n t . I n a c i v i l c a s e you have t o e s t a b l i s h a n unreasonable r e s t r a i n t by a preponderance o f t h e evidence, b u t o n t h e c r i m i n a l s i d e , of course , t h e proof has t o b e proof beyond a reasonab le doubt . So t h e proof i n c r e a s e s on t h e c r i m i n a l s i d e when t h e government p rosecu tes .

A s I s a y , I f i n d t h a t t h e r e were r e l a t i v e l y few c r i m i n a l prose- c u t i o n s . General ly , when a c r i m i n a l p rosecu t ion took p l a c e i n a n t i - t r u s t cases i n t h e p a s t , t h e o f f i c e r s would come i n and p lead nolo contendere o r some such p l e a . Then t h e c o u r t would impose a f i n e . On r a r e occas ions would someone g e t a p r i s o n s e n t e n c e and i f they d i d , i t wouldn't be more than s i x months.

But most o f those would b e c a s e s where they would come i n and plead g u i l t y o r nolo contendere w i t h t h e thought o f s a v i n g hundreds o f thousands of d o l l a r s i n l e g a l f e e s and c o s t s .

Sharp: I have j u s t two l a s t ques t ions . One is i n your u se of t h e consent decree and consent agreement. I had understood t h a t t h e r e was q u i t e a v a r i e t y i n how judges approach t h e use of bo th o f these . I wondered i f you had some general f e e l i n g s about t h e use of bo th of them?

Zi rpol i : The judge has t o review any consent decree. It h a s t o be one t h a t h e would be w i l l i n g t o s i g n i n t h e f i r s t p lace . I f he doesn ' t l i k e i t , he i s not going t o s i g n i t . Now, what happens is t h a t people come i n and they w i l l e n t e r a consent decree depending upon t h e na tu re of t h e ca se involved. I f it i s j u s t a ca se between you and me involv ing my i l l e g a l use of your copyright and I say I won't use i t anymore and i f I do, t h i s w i l l b e deemed a v i o l a t i o n of t h e c o u r t ' s o rde r ( t h e consent decree) , such subsequent v i o l a t i o n w i l l be found t o be i n contempt of t he c o u r t ' s o rde r and s u b j e c t t o s anc t ions .

On t h e o t h e r hand, i f i t is a c l a s s ac t i on , then you have t o g ive n o t i c e t o a l l t h e members of the c l a s s . That may involve sending personal n o t i c e t o thousands of people and pub l i ca t i ons i n t he newspaper and on TV i n d i c a t i n g what t h e consent decree is, when i t w i l l be heard, s o i f t h e r e a r e any ob jec t ions , t h e people can come i n t o cou r t and o b j e c t .

I n the gypsum cases , w e had t o have t h a t kind of a hear ing. In t h e Hughes A i r West case , we had t o have t h a t kind o f a hear ing. So the people involved a r e a l l advised and they come i n and in t e rpose t h e i r ob j ec t i ons .

I n t he cases involv ing d isc r imina t ion , such a s t h e Southern P a c i f i c [Rai l road] ca se o r any o t h e r ca se of t h a t na tu re where d i s c r imina t ion has been a l l eged and the re is a consent decree , then you have t o hold a hea r ing so t h a t people can come i n and voice t h e i r ob j ec t i ons . The judge is not going t o s i g n a consent agreement t h a t is n o t proper.

I n o t h e r words, l e t ' s assume t h a t t h e r e was a s u i t f i l e d by the American Basketbal l Associat ion aga ins t t h e Nat ional Baske tba l l Associat ion and t h e r e a f t e r t he p a r t i e s wanted t o come i n t o cour t and e n t e r i n t o a consent decree i n which t h e cour t would approve a merger of t h e American and t h e National a s soc i a t i ons i n t o one. Well, t h e judge is going t o t h ink twice. I had a s i t u a t i o n of t h a t charac- t e r i n which I s a i d no. I s a i d , "If you ever want t o d i smiss t h i s case, you have a p e r f e c t r i g h t t o dismiss i t , but I am no t going t o g ive you a consent decree of t h i s nature. ' '

W e l l , t h e case was dismissed. I n l a t e r yea r s , t he two associa- t i o n s merged [ laughs] , but I had nothing t o do wi th i t . I wouldn't approve i t because, i n e f f e c t , t h e na tu re of t h e a n t i t r u s t v i o l a t i o n s t h a t they were complaining about would have been enhanced by what they were about t o do.

Sharp: Can you genera l ize a t a l l about your f ee l ings regarding concentra- t i o n and competition i n - business? You have seen a l o t of i t . You have seen a l o t of a n t i t r u s t cases come before you i n a l l s o r t s of i ndus t r i e s . I wondered i f you had ever come t o a n y grand conclusions.

Zi rpol i : No, my only grand conclusion i s t h a t I am a be l i eve r i n f r e e enter- p r i se . There i s no argument about t h a t i n my mind. That I be l ieve i n , although I think we a r e gradual ly becoming a s o c i a l i s t s t a t e . But never the less , I s t i l l be l ieve i n f r e e en te rp r i se . I think t h a t t h a t ' s t he system t h a t b e s t serves t h e indiv idual and i s the one t h a t I would p re fe r because I, desp i t e my age o r any o the r circum- s tances , f e e l t h a t I can s t i l l compete! [ laughter ]

V I THE JUDICIAL CONFERENCE OF THE UNITED STATES, 1962-1982 ##

Pe r spec t i ve s on t h e Work of t h e Conference: Membership on t h e Advisory Committee on Federa l Criminal Rules and t h e Committee on t h e Adminis t ra t ion of t h e Criminal Law

Sharp: Are you ready?

Z i r p o l i : Yes--that depends on what you ' r e going t o a s k me!

Sharp: I thought w e might t a l k some about t h e [ J u d i c i a l Conference] Committee .

on Federa l Criminal Rules.* Both i n t a l k i n g about your work on t h i s committee and on t h e committee on t h e Adminis t ra t ion of t h e Criminal Law, what I a m i n t e r e s t e d i n is t h e p rocess of how you worked on i t , t h e p rocess of t h e d i s cus s ion , op t i ons , and a l t e r n a t i v e s .

Z i rpo l i : These committees are arms o f t h e J u d i c i a l Conference of t h e United '

S t a t e s . The J u d i c i a l Conference of t h e United S t a t e s i s t h e governing body o f t h e f e d e r a l j u d i c i a l system s o t o speak, t h e work of t h e cou r t s . It makes recommendations t o Congress from t i m e t o t ime a s t o l e g i s l a t i o n t h a t may have an impact on t h e c o u r t s . It may sugges t l e g i s l a t i o n o r i t may comment on l e g i s l a t i o n . General ly , i t doesn ' t comment on proposed l e g i s l a t i o n un l e s s reques ted t o do s o by t h e Congress.

But, a t t i m e s , t h e Congress f a i l s t o make such r eques t s . Then we have t o t ake t h e i n i t i a t i v e ou r se lve s i n one o r ano the r of o u r committees s o a s t o b r i n g t o t h e a t t e n t i o n of t h e Congress whatever problem w e have i n mind t h a t we f e e l ought t o b e considered by t h e Congress.

*Judge Z i r p o l i w a s a member of t h i s committee from 1962 t o 1971 and i ts chairman, 1966-1971.

Zirpol i : The conference has t he r e s p o n s i b i l i t y of superv is ing t h e cou r t s and the adminis t ra t ion of j u s t i c e , t h e promulgation of Federal Rules of C iv i l Procedure and Federal Rules of Criminal Procedure, and r u l e s of evidence. The members of t h e conference a r e the Chief J u s t i c e of the United S ta t e s , t h e chief judge of each j u d i c i a l c i r c u i t ( t he re a r e twelve c i r c u i t s ) , t h e chief judge of t he Court of Claims, t he ch ief judge of t h e Court of Customs and Patent Appeals, and a d i s t r i c t judge from each j u d i c i a l c i r c u i t (a t o t a l i n a l l of 27).

They couldn ' t possibly a s a group handle a l l of these problems, so t h e conference c r e a t e s committees. There a r e s tanding committees and ad hoc committees which a r e c rea ted t o dea l with p a r t i c u l a r a r eas , so t h e r e is a committee on t h e adminis t ra t ion of t h e cou r t s , t he re is a committee on the budget, t he re is a committee on j u d i c i a l e t h i c s , t he re is a committee on t h e adminis t ra t ion of c r imina l law, and the re i s a committee on p r a c t i c e and procedure which has below i t advisory committees, one on t h e c i v i l r u l e s and one on t h e c r imina l r u l e s . The chairman of each committee r epo r t s t o t he conference a t each se s s ion of t h e conference. The conference meets twice a year , general ly i n March and September of each year , t o cons ider t h e various problems t h a t a r i s e .

Now, with r e l a t i o n t o t h e committee on t h e r u l e s of cr iminal procedure (on which I served f o r a number of years and eventua l ly served a s chairman), what we were i n t e r e s t e d i n were t h e necessary changes o r modif icat ions i n t h e c r imina l r u l e s . The b a s i c problem t h a t a rose and which we f e l t required review by us was a r ev i s ion of t he c r imina l r u l e s i n such s u b s t a n t i a l measure so a s t o permit g rea t e r discovery, p r e t r i a l discovery, thereby e l imina t ing t o t h e degree poss ib le t he elements of s u r p r i s e , and a l s o , problems with r e l a t i o n t o b a i l reform. A t the same time we had t o b e , c a r e f u l not t o c r e a t e an abuse of discovery.

So during my period, two of t h e most s i g n i f i c a n t a r eas i n which we functioned had t o do with the r ev i s ion of t h e r u l e s . We worked on these r ev i s ions . I n 1970 we published t h e preliminary d r a f t of t h e proposed amendments.* Now, t h i s preliminary d r a f t was a p r e t t y extensive review of t h e r u l e s with modif icat ions, add i t i ons , and suggested changes. I f you w i l l pick up t h e r u l e s today, you w i l l

*"Preliminary Draft of Proposed Amendments t o the Federal Rules of Criminal Procedure f o r t h e United S t a t e s D i s t r i c t Courts," Committee on Rules of P rac t i ce and Procedure of t h e J u d i c i a l Conference of t h e United S ta t e s , January 1970, Washington, D.C.: United S t a t e s Govern- ment P r in t ing Office, 1970. See following page f o r names of committee members.

Standing Committee on Rules of P rac t i ce and Procedure

Judge Albert B. Maris, Chr. Judge George H. Boldt Peyton Ford Dean Mason Ladd Prof. James William Moore J. Lee Rankin Bernard G. Segal Prof. Charles Alan Wright Judge J. Skel ly Wright Prof. Bernard J. Ward, Reporter W i l l i a m E. Foley , Secre ta ry

Advisory C o d t t e e on Criminal Rules

Alfonso J. Z i rpo l i , Chr. Joseph A. B a l l Dean Edward L. Ba r re t t , Jr. George R. Blue Judge George C. Edwards, Jr. Robert S. Erdahl Judge Gerhard A. Gesel l Judge Walter E. Hoffman Judge Frank M. Johnson, Jr. Judge Walter R. Mansfield Robert W. Meserve Prof. Maynard P i r s i g J u s t i c e Walter V. Schaefer Barnabas F. Sears W i l l Wilson Prof. Frank J. Remington, Reporter

Committee on the Administration of the Criminal Law

Alfonso J. Zirpoli, Chairman Ruggero J. Aldisert Richard B. Austin Jean S. Breitenstein William B. Brvant W. Arthur ~ar;it~, Jr. Earl R. Larson Lloyd F. MacMahon John W. Peck Adrian A. Spears Roszel C. Thomsen

Zi rpo l i : f i n d t h a t most i f no t nea r ly a l l of t h e suggest ions w e made were adopted. There were some s l i g h t modi f ica t ions , one o r two t h a t weren't--but f o r t h e most p a r t , they were a l l adopted. With some small changes s i n c e , they a r e t h e b a s i c r u l e s t h a t w e func t ion under today. Now, t h i s w a s a b i g job and i t took a l i t t l e t i m e .

Then t h e r e was t h e B a i l Reform Act. I have fo rgo t t en t h e exac t d a t e of t h e Ba i l Reform Act 119661, bu t i t was i n i t i a t e d by Senator Robert Kennedy. It r e s u l t e d i n t h e presen t s t a t u t e wi th r e l a t i o n t o r e l e a s e on b a i l . The b a s i c requirement i s t h a t i f a person was charged wi th a crime, h e should b e re leased on h i s own recognizance, o r admitted t o b a i l under p a r t i c u l a r condi t ions wi th t h e c r i t e r i a t o be, w i l l he presen t himself i n t h e cou r t when requi red t o do so . I n o the r words, b a s i c a l l y t o secure h i s presence i n cou r t .

While t he re was some d iscuss ion t h a t t he cou r t should a l s o con- s i d e r whether h e c o n s t i t u t e s a danger t o himself and t o t he community, t h a t was no t accepted i n t h e Ba i l Reform Act. Our committee reviewed t h a t and a t one t i m e i t was suggested t h a t w e i nco rpo ra t e t h i s pro- v i s i o n , but w e s a i d , no, w e w i l l no t . I have fo rgo t t en exac t ly which year w e d fd t h a t .

Then came the r e v i s i o n of t h e f e d e r a l Criminal Code and t h a t was being presented a s a reform of t h e f e d e r a l Criminal Code, r a t h e r than mere r ev i s ion . There were a l o t of suggest ions being made then about prevent ive custody and th ings of t h i s cha rac t e r depending upon t h e na tu re of t h e crime o r t h e of fense .

We w e r e no t favorab le t o reforms f o r prevent ive custody, bu t w e were then, by t h a t t i m e , disposed t o inc lude a provis ion t h a t t h e cour t may consider whether o r no t t he defendant i s a danger t o him- s e l f o r a danger t o t h e community when t h e matter is r e f e r r e d t o t h e cou r t f o r t h e s e t t i n g of b a i l o r o t h e r condi t ions of r e l ea se . Now, t h a t is s t i l l wi th t he Congress. That has y e t t o b e resolved. This ques t ion of t he reform of t h e f e d e r a l Criminal Code has been going on now f o r over t en years , e leven o r twelve years . I don ' t know what i t is now--twelve approximately.

Our committee s t a r t e d working on i t the minute we received a copy of t he Brown Commission r e p o r t , which was a very thorough, w e l l - prepared document. The Brown Commission r e p o r t was a r epo r t of a commission f o r t he r e v i s i n g of t he f e d e r a l Criminal Code of which Edmund G. Brown [Sr . ] (former governor of Ca l i fo rn i a ) served a s chairman. We had many observa t ions t o make i n connection wi th i t . Now, i n t he f i r s t r e p o r t w e made on i t , [George C.] Edwards [ J r . ] was chairman of t h e committee a t t h e time, and w e had not had an oppor- t u n i t y t o go through i t i n any d e t a i l a t a l l .

Zirpol i : Thereafter , I was appointed chairman and we worked d i l i g e n t l y on it . In f a c t , we took t h e f i r s t Senate b i l l and reviewed i t , t h e e n t i r e b i l l , l i n e by l i n e . When I s a y we reviewed i t l i n e by line--Senate B i l l 1--you can see by the sheer volume involved j u s t what an enormous t a sk i t was. When we reviewed i t l i n e by l i n e , we were primari ly i n t e r e s t e d i n those procedural aspec ts of t he l e g i s l a t i o n which might have an impact on the opera t ion of t h e cour t . When i t came t o the desc r ip t ion of subs tant ive crimes--what s h a l l o r s h a l l no t c o n s t i t u t e a crime--of course, t h a t i s b a s i c a l l y a prerogat ive of t he Congress. We accepted t h e language of the Congress, unless we s a w a s p e c i f i c need t o comment. But the re was very l i t t l e t h a t we commented on i n t h a t regard.

There were aspec ts of i t t h a t we were very much i n t e r e s t e d i n . They r e l a t e d t o the f a c t t h a t f i r s t t he re would be an inc rease i n the l i t i g a t i o n of cr iminal cases. There would be an expansion of f ede ra l j u r i sd i c t ion . Now, we sa id , "That's a matter f o r Congress and whatever the r e spons ib i l i t y i s , w e w i l l accept ," but we f e l t t h a t Congress ought t o r e a l i z e t h e degree t o which the re would be an expansion of f e d e r a l j u r i s d i c t i o n . There were proposed s t a t u t e s t h a t we c a l l e d piggyback provisions i n t h e new laws which would have expanded f ede ra l j u r i s d i c t i o n i n matters which would normally be t h e respon- s i b i l i t y of the s t a t e .

Then we looked i n t o t h e procedural and evident ia ry problems a s they r e l a t e d t o what you might c a l l s t a t e s of mind, which i s not r e a l l y procedural but i n a sense i t is. We were very much i n t e r e s t e d i n t h e procedures t o be employed i n t h e new law a s i t r e l a t e d t o s t a t e s of mind wi th r e l a t i o n t o t h e commission of crimes, what a r e t h e s t a t e s of mind. There a r e various s t a t e s of mind known a s " in t en t iona l ly , " "knowingly, " "recklessly, " "negligent ly, " and we f e l t t h a t there was some confusion i n t h i s a r e a and t h a t we could s implify i t . So we of fered our suggested s t a t e s of mind.

Sharp : Yes, t h e d e f i n i t i o n s .

Zi rpol i : The d e f i n i t i o n s , and they have been o r a r e s t i l l being considered by the Congress.

Then the re was t h e quest ion of bars t o prosecution. These r e l a t e d to t r i a l s where the par ty was not convicted of a major felony, but was convicted of a l e s s e r included offense. Here we were confronted with a s t a t u t e of l i m i t a t i o n s on a misdemeanor, l e t ' s say, of a year , and f o r a felony of f i v e years . We d i d n ' t f e e l t ha t t he s t a t u t e of l i m i t a t i o n s could be deemed i n a sense t o be waived i f t he fel low w a s t r i e d f o r a felony and convicted of a misdemeanor. One of the reasons we objected t o t h a t i s t h a t we were a f r a i d , too, t h a t t he re might be a s e r i e s of prosecutions t r u l y based on the l e s s e r of fense , but t he g rea t e r offense would be charged. Then you would end up with a

Zirpol i : convict ion of t he l e s s e r , and the s t a t u t e may have run on t h e l e s s e r offense. We d idn ' t approve of t h a t . So we entered our objec t ions there .

Then the re were quest ions wi th r e l a t i o n t o of fenses of general a p p l i c a b i l i t y a s we c a l l them. They r e l a t e t o c r imina l a t tempt , c r imina l conspiracy, and cr iminal s o l i c i t a t i o n . We were p a r t i c u l a r l y objec t ing t o cr iminal s o l i c i t a t i o n a s c r ea t ing a new a rea of c r imina l conduct which we f e l t was adequately covered by conspiracy and cr iminal attempt.

There were some problems with r e l a t i o n t o what c o n s t i t u t e s an at tempt . There were some problems of what c o n s t i t u t e s an abandonment of attempt, o r an abandonment of conspiracy. We t r i e d t o poin t ou t , based on our experience, t h e var ious problems t h a t a r i s e i n t hese a reas and we s e t them a l l f o r t h i n our r epo r t , which was a very extensive r epo r t .

Then t h e r e were proposed amendments t o t h e p r e t r i a l r e l e a s e provis ions of t h e code and we had our objec t ions on t h e quest ion of p r e t r i a l because they were s e t t i n g up an equivalent--not e n t i r e l y t he equivalent--of another agency sepa ra t e and a p a r t from t h e probat ion o f f i c e . We d idn ' t s e e any sense i n a probat ion o f f i c e r going over t o check you and spend time and e f f o r t t o f i n d ou t about you and your family and everything e l s e f o r t h e purpose of pre-release; then have a head of a department t o do t h a t (who was going t o be paid under t h e a c t even more than t h e chief probat ion o f f i c e r ) ; and then have the probat ion o f f i c e r s go through and do t h e same th ing over again.

Now, I am not saying t h a t t he re i s no j u s t i f i c a t i o n f o r such d i f f e rence i n approach because t h a t d i f f e r ence has s i n c e been accepted, and r ecen t ly by t h e Congress, bu t a t t h e time we were very much concerned about t h a t p a r t i c u l a r problem and we f e l t t h a t our experience d i d n ' t j u s t i f y t h i s s e t t i n g up of another bureau so t o speak. I am s t i l l no t s a t i s f i e d t h a t t h e circumstances a s they e x i s t i n t h e cour t s j u s t i f y i t .

We now have a pre-release provis ion, bu t I have never had any d i f f i c u l t y i n s e t t i n g b a i l o r condi t ions f o r r e l e a s e based on our p a s t experience. I f I wanted a p r e t r i a l i nves t iga t ion by the probat ion o f f i c e r , I would o rde r i t . I d id on occasion and I d i d n ' t have t o do i t too o f t en . But i n a l l events, we have t h a t now and those were add i t i ona l problems upon which we commented.

Now, these a r e a l l problems t h a t have an impact on t h e cour t .

Zirpol i : Of course, another th ing t h a t we were i n t e r e s t e d i n was t h i s c i v i l commitment of mentally dangerous persons. Now the re is a f e d e r a l s t a t u t e t h a t permits commitment i f a person is unable t o car ry on h i s defense o r t o confer and consul t and cooperate with counsel, bu t t h a t is a temporary commitment and t h a t is before t r i a l . What we were i n t e r e s t e d i n was t h e enactment of a s t a t u t e t h a t would permit t h e confinement of a person who was mentally ill and who was a danger t o himself o r t o a community.

We worked on t h a t f o r a long time with t h e Department of J u s t i c e , with the Public Health Service, f o r t he purpose of working ou t a procedure t h a t would guarantee and provide a l l of t h e necessary due process. To i n s u r e such due process we provided t h a t a f t e r a t r i a l i n which an in san i ty defense had been r a i sed , and the defendant found not g u i l t y , we could nevertheless conduct a subsequent hearing wi th appropr ia te medical and o the r expert testimony. I f a f t e r such hearing we found him t o b e a danger t o himself o r t o t h e community, he would be then confined i n a f e d e r a l i n s t i t u t i o n .

Now, t h i s was a d i f f i c u l t problem because there were cons t i tu- t i o n a l quest ions involved i n t h e due process area. Now, t h i s is somewhat reminiscent of [John] Hinckley.* Hinckley was confined, but he was confined under t h e equivalent of a s t a t e law. He was confined under a s t a t u t e appl icable t o t h e D i s t r i c t of Columbia because i n our s t a t e cour ts , we have c i v i l commitments. We don't have t h e equivalent of s t a t e c i v i l commitment on the f ede ra l s i d e . So whenever a person is involved i n t h e v i o l a t i o n of a f e d e r a l law, i f he is found not g u i l t y by reason of i n s a n i t y , t he re i s nothing we can do. We can only c a l l i t t o t h e a t t e n t i o n of t he s t a t e a u t h o r i t i e s and suggest t h a t they t ake t h e appropr ia te ac t ion .

I f t h e cour t were s a t i s f i e d t h a t a defendant was mentally incompetent, i t could commit him pending t r i a l t o the medical center u n t i l he i s competent t o s tand t r i a l . However, t he re is a l i m i t t o how long you can keep him there . I f you get a repor t t h a t he is okay, you b r ing him back a s soon a s you g e t t h a t r epor t and the t r i a l goes on.

But sometimes you ge t a r epor t t h a t he i s okay and he comes back and he is r e a l l y not okay, and he has been i n custody f o r a year . Sometimes they can be i n custody f o r a longer period f o r mental incompetency than they would be f o r t h e offense t h a t they committed.

*This is a re ference t o an attempt by John Hinckley t o a s sas s ina te President Ronald Reagan i n March 1981.

Zi rpo l i : So t h e r e t h e cour t might dismiss t h e case. The cour t must then tu rn t o t h e d i s t r i c t a t t o rney i n t h e c i t y and county and t h e ch ie f of p o l i c e and say , "This guy is a danger t o t h e community. H e i s your r e s p o n s i b i l i t y now. You b e t t e r i n s t i t u t e c i v i l proceedings aga ins t him." But t h a t i s n ' t always done.

So t o meet t h a t problem (and w e s t a r t e d t h i s long before t h e new code was suggested, Senate B i l l l ) , w e submitted proposed l e g i s l a t i o n , namely a r e v i s i o n of Chapter 313, T i t l e 18 , United S t a t e s Code. There have been some vers ions of i t s i n c e submitted, p r imar i ly coming from Congressman [Pe t e r ] Rodino. I forgot t he number of h i s b i l l . We reviewed h i s b i l l and pointed ou t some modif icat ions, bu t h i s b i l l b a s i c a l l y t racked what w e have suggested. However, such a s t a t u t e has s t i l l t o be enacted.

Of course, t h e r e is a l o t of d i scuss ion about enac t ing such a s t a t u t e now p a r t i c u l a r l y i n l i g h t of Hinckley. So t h i s is a cont inuing i n d i c a t i o n of t h e n a t u r e of t h e work of t h e committee.

Another problem t h a t a rose was t h e ques t ion of sentencing. The new C r i m i n a l Code set f o r t h var ious formulas f o r sentencing. They w e r e concerned, and t h e cou r t s have always been concerned, wi th t h e d i s p a r i t y i n sentencing. It could be t h a t a person i n Michigan commits t h e same of fense a s one i n Ca l i fo rn i a and t h e i r b a s i c s o c i a l pos i t i ons a r e i d e n t i c a l . Y e t t h e r e may be a tremendous d i s p a r i t y i n sentence because i f t h e law says you can be sentenced f o r no t more than f i v e yea r s , one judge could give one year and another judge could g ive f i v e . It could even happen wi th in t h e d i s t r i c t where you have a number of judges .

So w e have been t r y i n g t o meet t h i s ques t ion of d i s p a r i t y i n sen tenc ing a l l a long ourse lves . What t h e l e g i s l a t i o n proposes i s t h a t a [Sentencing] Corumission be set up t o f i x gu ide l ines . The o r i g i n a l b i l l provided t h a t t h e commission would be composed pr imar i ly of people appointed by t h e pres ident . It would be a s e p a r a t e c o d s s i o n - - appointed t h r e e o r f o u r by t h e pres ident and t h e rest by t h e J u d i c i a l Conference. We f e l t t h a t was wrong because t h i s r e s p o n s i b i l i t y is a j u d i c i a l responsibi l i ty--sentencing. It i s no t a congressional one. Congress can f i x t h e t e r m s of t h e sentences, bu t when i t comes t o t h e exe rc i s e of d i s c r e t i o n w i th in t h e terms f ixed by Congress, t h i s i s a j u d i c i a l func t ion .

We thought t h a t t h e s e t t i n g up of a commission i n t h e fashion they suggested was wrong. It would c r e a t e a s epa ra t e commission wi th people g e t t i n g enormous s a l a r i e s . Once they had s e t f o r t h t h e guide- l i n e s , a f t e r t he f i r s t year o r two, they would be g e t t i n g t he se enormous s a l a r i e s wi th maybe l i t t l e o r nothing t o do t h e r e a f t e r . We concluded t h a t t h e b e s t way t o handle it i s t o l e t t h a t become the r e s p o n s i b i l i t y o f t h e J u d i c i a l Conference of t he United S t a t e s . That

Z i r p o l i : is s t i l l o u r p o s i t i o n . That is something y e t t o b e r e s o l v e d because they have n o t passed any l e g i s l a t i o n which c o n s t i t u t e s a reform of t h e Criminal Code d e s p i t e t h e passage o f a l l t h e s e y e a r s . So t h i s was t h e p o s i t i o n t h a t w e wanted t h e Congress t o know about .

Then t h e r e was t h e q u e s t i o n of a p p e l l a t e review of s e n t e n c e s based on t h i s same q u e s t i o n of d i s p a r i t y . The new Senate b i l l t r i e s t o s e t f o r t h g u i d e l i n e s f o r sen tenc ings which would permi t an a p p e a l by t h e defendant i f h e thought i t was e x c e s s i v e and a n appea l even by t h e p r o s e c u t o r i f h e thought i t wasn ' t adequate w i t h i n c e r t a i n minimal s t a n d a r d s a s provided by t h e Senate b i l l . I am r e f e r r i n g g e n e r a l l y t o t h e Senate b i l l [SB 1 i n 19741 because t h a t was t h e f i r s t b i l l a f t e r t h e Brown Commission r e p o r t .

W e po in ted o u t t h a t w e thought such a p p e a l s should b e t o a pane l o f d i s t r i c t judges and n o t t o c i r c u i t judges because d i s t r i c t judges have a g r e a t e r f a m i l i a r i t y w i t h s e n t e n c i n g and t h e s e n t e n c i n g p rocess . There were a l s o q u e s t i o n s as t o what r e c o r d s should go b e f o r e t h e c o u r t of appea l s . The way they had w r i t t e n i t , a p p a r e n t l y t h e a p p e l l a t e review body would g e t t h e whole r e c o r d of t h e c a s e . It would b e r i d i c u l o u s t o g i v e t h e a p p e l l a t e review body t h e t r a n s c r i p t of a t r i a l t h a t l a s t e d f o r weeks o r months when a l l t h a t i s involved is t h e q u e s t i o n o f sen tenc ing . So w e made s u g g e s t i o n s i n t h a t r egard as t o what type o f r e c o r d s should go up and t h a t b a s i c a l l y w e would p r e f e r t h a t i t b e a pane l of d i s t r i c t judges set up f o r t h a t purpose. There h a s been no l e g i s l a t i o n t o d a t e on i t , b u t i t i s a m a t t e r s t i l l b e i n g cons idered . These were t h e s u g g e s t i o n s t h a t we were making.

Then t h e r e was t h e q u e s t i o n of t h e f a i l u r e i n t h e Sena te v e r s i o n and even t h e House v e r s i o n t o i n c l u d e any p r o v i s i o n s f o r t h e continua- t i o n o f t h e Youth C o r r e c t i o n s Act. W e f e l t t h a t t h a t had t o b e cont inued. There is t h e q u e s t i o n of f i x i n g s e n t e n c e s wi thou t p a r o l e . W e d i scussed t h a t b u t t h a t i s n o t b a s i c a l l y our r e s p o n s i b i l i t y . I n o t h e r words, whenever we made a s u g g e s t i o n , we would d e f i n i t e l y s a y t o t h e Congress, "This is b a s i c a l l y your r e s p o n s i b i l i t y ; i t is n o t o u r s . However, t h e s e a r e problems t h a t we f o r e s e e t h a t w e t h i n k you ought t o know about . That was. a s f a r a s w e would go.

Now, t h e o t h e r problem was t h e e f f e c t i v e d a t e o f t h e new law. W e suggested t h a t t h e e f f e c t i v e d a t e b e t h r e e y e a r s a f t e r enactment ( t h e y had i t f o r one y e a r a f t e r enactment) . B a s i c a l l y , because t h e r e would b e a tremendous p rocess o f re-educat ion and re -eva lua t ion . Also, because we discovered t h a t i n connec t ion w i t h t h e Speedy T r i a l Act (and you d i scover i t i n connec t ion even w i t h t h e B a i l Reform Act ) , t h a t w i t h t h e passage of t i m e , you f i n d t h a t t h e r e a r e some modifica- t i o n s t h a t ought t o b e made. I f you had t h i s three-year i n t e r v a l i n which t o work t h o s e a l l o u t , I t h i n k t h e ends o f j u s t i c e u l t i m a t e l y would b e b e t t e r se rved and t h e j u d i c i a r y b e t t e r se rved . So we made s u g g e s t i o n s o f t h a t c h a r a c t e r a s w e l l .

Zirpol i : Of course, I remember when we were f i r s t asked t o submit a repor t t o t h e J u d i c i a l Conference of t he United S ta t e s on Senate B i l l 1 and I was speaking t o t h e chief j u s t i c e [Warren Burger] j u s t before t h e conference. I s a i d , "Chief, t h i s is going t o mean a re-education of the e n t i r e judiciary." He put h i s arm around my shoulders and s a i d , "That's a l l r i g h t f o r you young fellows." Well, I am a t l e a s t t h ree years o l d e r than t h e chief j u s t i c e , s o I f e l t p r e t t y good about i t ! [laughs s o f t l y ]

As I say, t he re I was d iscuss ing t h e work of t he Committee on the Administration of t he Criminal Law. Now, more o f t en than not , when b i l l s were r e fe r r ed t o us we would make no recommendation because we f e l t t h a t they were not wi th in t h e r e s p o n s i b i l i t y of t h e judic iary and were bas i ca l ly the r e s p o n s i b i l i t i e s of t h e Congress. But when we did t h a t , i f we f e l t t h a t there was some area t h a t might i n d i c a t e an impact on t h e cour t , we would make whatever observat ions we f e l t j u s t i f i e d without making a recommendation.

These b i l l s considered by t h e committee come t o us e i t h e r because we i n i t i a t e them and then subn i t them t o t h e Congress o r the Senate, o r t he House r e f e r s them t o us f o r our considerat ion and comment. Such b i l l s a r i s e i n many a reas . There a r e q u i t e a few b i l l s i n t h e a n t i t r u s t f i e l d on t h e cr iminal s i d e t h a t a r e presented. I f there a r e problems, we w i l l s e e what t h e problems a r e and we w i l l then a l e r t t h e Congress.

Now, on t h e Speedy T r i a l Act, t he re was a problem t h a t a rose i n connection with the cr iminal r u l e s . We were not asked t o comment on the Speedy T r i a l Act by t h e Senate. It was Senator [Edward M.] Kennedy who s t a r t e d i t . But a f t e r t h e Senate had approved i t , we got an i n v i t a t i o n from t h e House and I went over t o t e s t i f y . We worked on t h a t l i n e by l i n e and i n grea t d e t a i l and I indica ted t o them why I thought i t was not des i r ab le t o have t h i s s t a t u t e enacted.

The chairman of t h e Subcommittee [on Criminal J u s t i c e of t h e House Judic iary Committee] s a id , "Why d idn ' t you t e l l a l l of t h i s t o the Senate?" I t o l d him, "Because they didnl t i n v i t e me." I was speaking i n vain, i n a sense, because they had already agreed on what t h e i r vote was going t o be before I even addressed them! [laughs] But anyway, I went i n t o d e t a i l . On Senate B i l l 1, I went i n t o considerable d e t a i l with Senator [Roman L.] Hruska when I was chairman of t h e Committee of t h e Administration of t h e Criminal Law. He gave me a good audience, 1'11 say t h a t , and even though the re were only a couple of Senators there , he was t h e primary spokesman because he was q u i t e f ami l i a r wi th i t , f a r more than most of t h e Senators.

To make a long s t o r y s h o r t , I suggested t h a t they not pass t h i s Speedy T r i a l Act because we had already taken measures t o take ca re of t h a t s i t u a t i o n ourselves under Rule 50 (b) , whereby each d i s t r i c t

Zirpol i : worked ou t a p lan f o r t h e handling of cases so a s t o expedi te t h e processing of c r imina l cases . This was done i n i t i a l l y through t h e Committee on IFederal] Criminal Rules. We had adopted a model plan and submitted i t t o each of t h e d i s t r i c t s s u b j e c t t o such v a r i a t i o n s a s they f e l t they would l i k e t o impose. For t h e most p a r t , ou r plan was p r e t t y we l l adopted. It became p r e t t y much t h e uniform plan. Based on ou r experience, we were s a t i s f i e d t h a t we could accomplish a l l of t h e ob jec t ives of t h e Speedy T r i a l Act.

Z i rpol i : In f a c t , during the f i r s t t h r e e yea r s , we f e l t t h a t our approach would work o u t even b e t t e r than t h e Speedy T r i a l Act. Since our plan had been i n e f f e c t not q u i t e e ighteen months, we wanted Congress t o de fe r enactment of t he Speedy T r i a l Act a t l e a s t f o r t h i r t y months s o t h a t we could ge t t h e b e n e f i t of t h e e f f e c t of our plan.

We had a professor from Harvard who was using some s t a t i s t i c s t h a t d idn ' t have a v a l i d base. Senator Kennedy was a l s o using s t a t i s t i c s t h a t d idn ' t have a v a l i d base.

Sharp: This is Ted Kennedy a t t h i s po in t , i s n ' t i t ?

Zi rpol i : Yes, Ted Kennedy, yes . Congress went ahead. Af te r enac t ing t h e Speedy T r i a l Act they had t o make some changes. The only concession we got from them was t o extend t h e e f f e c t i v e d a t e of t h e a c t f o r an add i t i ona l s i x months. [ laughter ]

A s I say though, we have s i n c e had problems, not too g rea t , and the cour t s were ab l e t o comply. We would have been a b l e t o do t h i s under our plan a s e f f e c t i v e l y a s they a r e doing i t under t h e s t a t u t e a s enacted--not t h a t we had any qua r re l wi th i t . We agreed wi th t h e i r ob jec t ive . We thought i t was r i g h t . We d idn ' t neces sa r i l y have any q u a r r e l with t h e i r s t a t u t e , bu t we s a i d t h i s i s something t h a t we a r e i n f a c t reso lv ing .

It i s t h i s same quest ion of t h e cour t i n f a c t reso lv ing quest ions t h a t caused us t o r a i s e objec t ions on t h e Senate B i l l 1, which would reform the Criminal Code a s i t r e l a t e s t o c e r t a i n types of defenses such a s i n s a n i t y , entrapment. We d i d n ' t want t o s e e these defenses codi f ied and frozen because these were a reas of development. It wasn't c l e a r a s t o what d e f i n i t i o n should apply with r e l a t i o n t o entrapment. Is i t t h e propensity of t h e ind iv idua l t o engage i n t h i s conduct? Does t h a t r e l i e v e t h e s i t u a t i o n from entrapment? On t h e ques t ion of i n s a n i t y t he re were various types of defenses. So we were saying t o t h e Congress, "Now, i n t hese a r e a s , don ' t enact l eg i s l a t i on . " I doubt t h a t they w i l l ; I r e a l l y doubt t h a t they w i l l . I th ink t h e y ' l l adhere t o our suggested program, t h a t these defenses be l e f t t o t h e jud ic i a ry .

Zirpol i : We have these f a i r l y wel l-establ ished p r inc ip l e s , and when you r ewr i t e those defenses and f r eeze them, then everybody comes i n and asks t o have these defenses i n t e r p r e t e d by t h e cour t s anew. A s a r e s u l t , you have appeal a f t e r appeal t ry ing t o f i nd out j u s t what Congress meant by t h i s , and what they meant by t h e o ther . A t l e a s t we have enough precedents i n these var ious a r eas t o have a p r e t t y good idea of what c o n s t i t u t e s entrapment today, what c o n s t i t u t e s a proper i n s a n i t y defense. So the re , by way of i l l u s t r a t i o n , we were objec t ing t o any f r eez ing of d e f i n i t i o n s . . -

f

Now, what I have j u s t ou t l i ned t o you is b a s i c a l l y t h e most important aspec ts of my work on t h e Committees on the Administration of [ t he ] Criminal Law and t h e Federal Criminal Rules.

I d id work on t h e Habeas Corpus Committee, but on t h e Habeas Corpus Committee we made some progress but not a g r e a t dea l of reform. The bas ic work on reform i n t h a t a r e a has r e a l l y been performed by Judge [Ruggero J. ] A ld i se r t ( s ince I l e f t t he committee)' of t he Court of Appeals of t h e Third C i r c u i t , who i s a very a b l e and a s cho la r ly judge and a good adminis t ra tor . He served with me on t h e Administra- t i o n of t h e Criminal Law.

The one th ing we did do i s we worked out a s e t of forms t h a t we t r i e d t o make appl icable , t h a t would be uniform, and would apply throughout t h e country whereby the pr i soners would have t o s e t f o r t h t he s p e c i f i c information t h a t was needed t o properly eva lua te a p e t i t i o n f o r w r i t of habeas corpus. He'd have t o show t h a t he exhausted h i s s t a t e remedies and he would have t o a s s e r t a l l of h i s c o n s t i t u t i o n a l claims a t one time. We d idn ' t want t he condi t ion t o cont inue t h a t was e x i s t i n g whereby t h e p e t i t i o n e r would come i n with one claim one day and i t was denied, and then two o r t h r e e months l a t e r h e would look around and f i n d another , and then t h a t was denied.

So a s p e c i f i c s e t of forms was s e t up f o r t h a t purpose and a s e t of forms was s e t up f o r what they c a l l Sect ion 1983 [of T i t l e 18 U.S.C.] cases , which a r e based upon the den ia l of c i v i l r i g h t s t o pr i soners . As I say, we made progress i n t h a t regard i n t h a t we have worked out some programs t o f a c i l i t a t e our e n t i r e approach because of t he volume involved. As of today, and i n recent years , t h e major draftsman of procedures of t h a t na tu re has been Judge Ald i se r t of Pennsylvania.

Now, I th ink I have covered t h e committee work t o what may be deemed t o be adequate f o r our purposes. I don' t know.

Sharp.: Could I have a few ques t ions?

Zi rpol i : Oh, yes.

Zirpol i : Oh, I might make one o t h e r observat ion before I leave on the committee work. Now, I appeared before Congress on th ree sepa ra t e occasions, but a s a r e s u l t of my working on t h e committees. I found toward the end t h a t I was b e t t e r of f i f I asked t h e r ep re sen ta t ives of t h e Department of J u s t i c e t o come, t h e r ep re sen ta t ives of t h e House Judic ia ry [Committee] and t h e Senate Judic ia ry [Committee] t o come, and we would meet j o i n t l y . These were people who were doing the spade work. Before my term ended I p a r t i c i p a t e d i n t h r e e se s s ions of t h i s na tu re which I found t o be very productive, because we were d iscuss ing d e t a i l s together . These a r e t h e fe l lows t h a t were going t o advise t h e i r congressmen o r prepare memos f o r them. I f e l t t h a t t h i s was by f a r t h e most e f f e c t i v e way t o work on l e g i s l a t i o n .

Sharp: There was a sense of some r e a l give and take i n these se s s ions then?

Z i rpo l i : Yes, t h i s is a b e t t e r method of operat ion. You j u s t go before a commfttee and you make a speech and t h a t ' s i t . Then maybe t h e s t a f f reviews i t . But, i f you work wi th t h e s t a f f and you s i t down wi th them, you s i t a t a t a b l e , a l l around a b i g t a b l e , and d iscuss these var ious i tems, and you work o u t d e t a i l s , i t tu rns ou t a l o t b e t t e r .

Sharp: I sense t h a t t he re must have been some tens ion between t h e Congress and what i t might have thought i t s purview was with r e spec t t o some of t h e cour t procedures and some of t h e committees t h a t you were on, and perhaps i t wasn't a l t o g e t h e r c l e a r what you thought you were supposed t o do and how Congress was r eac t ing .

Z i rpo l i : No, I wouldn't q u i t e say t h a t because, a f t e r a l l , they r e f e r a b i l l t o us and ask us f o r our comments and recommendations, and we would make comments and recommendations. We would approve i t o r disapprove i t and give our reasons the re fo r . That 's about a l l you can normally expect. Of course, we would appear whenever requested t o do so. There have been appearances n a t u r a l l y before t h e Congress by members of t h e Budget Committee of the conference when Congress must f i x t h e budget f o r t h e jud ic ia ry .

There would be members of t h e Probation Cormnittee, i f i t r e l a t e d t o problems regarding probation. There were members of t h e & g i s t r a t e r s Committee (which was separa te ly c rea ted l a t e r when problems r e l a t i n g t o magis t ra tes a rose) , and the re was a committee on the Speedy T r i a l Act t h a t was l a t e r provided f o r . A t f i r s t , t h e [ C o d t t e e on t h e ] Administration of [ t h e ] Criminal Law handled problems r e l a t i n g t o magis t ra tes . Between t h e two, between Criminal Law and Criminal Rules--we handled j u s t about everything t h a t had t o do with the adminis t ra t ion of c r imina l j u s t i c e ; t h a t would be magis t ra tes , and the Criminal J u s t i c e Act, which provides f o r t h e representa t ion of ind igent defendants.

Zirpol .i: I might s ay on t h e ques t i on o f r e p r e s e n t a t i o n o f i nd igen t defendants , one o f t h e g r e a t i n f l uenc ing f a c t o r s as f a r as t h e c r e a t i o n of t h e pub l i c defender ' s system is concerned was t h e p lan of t he Uni ted ' S t a t e s D i s t r i c t Court of t h e Northern D i s t r i c t of Ca l i f o rn i a . Now, t h a t p lan was t h e fo re runner i f any p a r t i c u l a r p l an w a s .

Sharp : That was p r e t t y e a r l y , wasn ' t i t ?

Z i r p o l i : Oh, ye s , I s t a r t e d t h a t i n '51 t o '55. It w a s then taken over by t h e Bar Assoc ia t ion of San Francisco.

A l l r i g h t , now I w i l l see i f I can answer any s p e c i f i c ques t i ons .

The Federa l Magis t ra tes Act

Sharp: I had a few ques t i ons about t h e Federa l Magis t ra tes Act. I w a s look ing a t b i t s and p i ece s of t h e a c t as I found them i n t h e 1970 r e v i s i o n s of t h e Criminal Code. It seemed t o m e t h a t t h e purpose of t h e Magis t ra tes Act was t o t a k e a b i t of t h e burden o f f of t h e d i s t r i c t cou r t . Is t h a t r i g h t ?

Z i r p o l i : That ' s r i g h t . It was d e f i n i t e l y t o t a k e a b i t of t h e burden o f f of t h e d i s t r i c t c o u r t , and t o handle a l l of t hose p e t t y o f f ense s , of course , which were p rev ious ly handled by United S t a t e s commissioners. So they continued t h e work of t h e commissioners. Then they were given t h e t i t l e o f mag i s t r a t e i n o rde r t h a t they might c a r r y on o t h e r f unc t i ons t h a t are very t i m e consuming. For i n s t a n c e , even i n c i v i l l i t i g a t i o n matters p e r t a i n i n g t o d i scovery , t h e r e is no reason why t h e cou r t should have t o spend its t i m e reviewing i n t e r r o g a t o r i e s o r documents and s o f o r t h , when they can b e r e f e r r e d t o a mag i s t r a t e , by way of i l l u s t r a t i o n , who then makes t h e review o r makes t h e t e n t a t i v e r u l i n g s , which t h e p a r t i e s can ag ree s h a l l be binding o r which s h a l l b e s u b j e c t t o review by t h e d i s t r i c t judge o r s h a l l c o n s t i t u t e on ly recommendations t o him.

Now, t o t h e degree t h a t i t is h e l p f u l depends upon t h e judge.

Also, cases can be t r i e d be fo r e t h e mag i s t r a t e ; you can have a ju ry t r i a l b e f o r e t h e mag i s t r a t e under c i rcumstances i n which h e o therwise would no t have j u r i s d i c t i o n i f t h e p a r t i e s ag r ee t o i t .

Ce r t a in e x t r a d i t i o n matters used t o b e handled by t h e c o u r t and now they are handled by t h e mag i s t r a t e . Ce r t a in types of removal are handled by t h e magis t ra te , s o t h a t a l o t of problems o f t h i s c h a r a c t e r can be taken from t h e cou r t and t hus r e l i e v e t h e cou r t .

Of course , i t was necessa ry f o r changes of t h i s n a t u r e because of t h e cont inuously expanding f e d e r a l j u r i s d i c t i o n and a con t inu ing i nc r ea se i n t h e complicated n a t u r e of t h e cases t h a t are be ing presented t o t h e c o u r t , and have been f o r t h e l a s t t e n yea r s , s o t o speak.

Sharp: With t h e Federal Magistrates Act, I had seen a n o t e i n one of t h e tes t imonies t h a t you had given t h a t r e f e r r e d t o t h e use of t h e Youth Correct ions Act by t h e magist ra tes ." It seemed t o b e somewhat of a problem, a controversy about t h e magistrates--

Z i rpo l i : No, i t was no t neces sa r i l y a problem. We merely wanted t o be s u r e t h a t the magis t ra te had the power t o sentence under t h e Youth Correc- t i o n s Act, and expunge t h e record i f t h e circumstances j u s t i f i e d i t , and they hadn ' t made provis ion f o r i t .

We j u s t wanted t o make s u r e t h a t t h i s p rovis ion was r e a l l y i n t h e new Senate b i l l . When they were t a l k i n g about mag i s t r a t e s , they had no t made t h a t p rovis ion . There was no mention of s i t u a t i o n s , f o r i n s t ance , o f revocat ion of probat ion. These a r e l i t t l e gaps, t h a t ' s a l l , t h a t I was i n t e r e s t e d i n and w e were i n t e r e s t e d i n f i l l i n g .

Modernizing the Rules

Sharp: I n read ing through t h e d r a f t of t h e changes i n 1970, I saw l o t s of re fe rences t o making the r u l e s more i n l i n e wi th p r e t t y r ecen t d i s t r i c t cou r t dec i s ions , U.S. Supreme Court dec i s ions , some s t a t e cou r t dec is ions , a s w e l l a s new American Bar Associat ion s tandards r e l a t i n g t o p r e t r i a l procedures. It looked l i k e t h e r e was a tremendous e f f o r t a t modernizing t h e Criminal Code.

Z i rpo l i : The e f f o r t of modernizing goes back t o 1963 and the primary au thor t h e r e was Judge [William T.] Sweigert . He r ev i sed a l l of t h e l o c a l rules t o do j u s t exac t ly that--to expand discovery. H e d i d a g rea t job. H e was t h e draftsman. The o t h e r members of t h e committee were myself and Judge [Albert C. Wollenberg, S r . ] , bu t Judge Sweigert d id t he work and he d id a tremendous job, which i s evident i f you p ick up h i s o r i g i n a l d r a f t of t h e r u l e s and compare them wi th t h e r u l e s today. You w i l l f i n d t h a t h i s r u l e s a r e the b a s i s f o r everything t h a t w e have today. There have been changes, most of them being promulgated through t h e work of t h e r u l e s committee headed now by Judge William W Schwarzer.

*This is a re fe rence t o "Summary of s ta tement of Senior D i s t r i c t Judge Alfonso J. Z i r p o l i concerning t h e Criminal Code Reform Act of 1978, S. 1437 and H.R. 6869, be fo re t h e Subcommittee on Criminal J u s t i c e of t h e Committee on t h e Jud ic i a ry of t h e House of Representat ives ," Apr i l 10, 1978. This i s s u e a l s o came up i n 1972.

Sharp: I guess i t t ake s a s p e c i a l k ind o f i n s i g h t t o be a b l e t o s ense what t h e r u l e s should be, and how t h e r u l e s should be d i f f e r e n t from t h e way they were, as Judge Sweigert w a s doing t h i s whole t i m e .

Z i r p o l i : That w a s t h e r e s u l t of exper ience, o f h i s exper iences i n cou r t . H e found t h a t i f we could have proper p r e t r i a l , by way of i l l u s t r a t i o n , you could narrow t h e i s s u e s ; you could g e t a s t i p u l a t i o n of t h e f a c t s i f t hey w e r e n o t i n d i s p u t e ; you could have a l l o f your e x h i b i t s prepared i n advance; you would know i n advance who your w i tne s se s are. I f they were expe r t s , you had t o i n d i c a t e , f o r i n s t ance , t h e n a t u r e of t h e i r test imony. This way you wouldn' t spend a tremendous amount of t ime t r y i n g t o f i n d o u t about t h i s e x p e r t . They would have t o t e l l you what h e w a s going t o t e s t i f y t o and i f you wanted t o depose him, you would know what t o depose him about . Otherwise, you could c a r r y on a depos i t i on w i th him t h a t would go on f o r s e v e r a l days, whereas a n hour o r two hours might have done t h e t r i c k .

H e s a w a l l of t h e s e and worked o u t t h e s e procedures. One of t h e s i g n i f i c a n t procedures , of course , is p r e t r i a l . Then t h e r e w e r e ques t ions of s t a t u s conferences . I mean i f a ca se is f i l e d and no th ing h a s been done f o r t h r e e months, somebody ha s go t t o do something t o g e t t h i s case moving. So you c a l l what is known a s a s t a t u s confe rence . I may have commented on t h i s be fore .

Sharp : No.

Z i rpo l i : This is t h i s concept t h a t when t h e c a s e i s i n t h e lawyer 's o f f i c e , i t is h i s bus iness and t h e c l i e n t ' s bus iness . The day he moves i t i n t o c o u r t , i t becomes t h e c o u r t ' s bus iness . The c o u r t ha s t h e respons i - b i l i t y o f p o l i c i n g i t and s ee ing t h a t i t moves and then t o s e e a l s o t h a t t h e p a r t i e s do n o t indu lge i n t a c t i c s t h a t a r e going t o b e abus ive i n c h a r a c t e r . That i s t h e whole purpose of t h i s p r e t r i a l procedure and t h e r u l e s enac ted i n connect ion therewi th .

Sharp: The whole t i m e t h a t you were working t o pu t t oge the r t h e 1970 d r a f t of t h e r u l e s , w a s i t a ma t t e r o f your po r t i on ing o u t t h e work among t h e judges on t h e committee?

Z i r p o l i : Oh, no. Our committee had a r e p o r t e r . P rofessor [Frank J. ] Remington w a s t h e b a s i c r e p o r t e r of o u r committee. We would d i s c u s s every th ing a t t h e s e meetings and submit memos. Based upon t h e conclusions w e would reach, he would submit t o us sugges t ions w i th r e l a t i o n t o t h e r u l e s , s o t h a t we had someone who w a s working as a draftsman t he r e . I f I had t o do a l l o f t h a t , as w e l l as a l l of my t r ia l work, [ l aughs] i t would be too much.

Sharp: Was i t a ma t t e r of you a s t h e committee of t h e judges drawing on a l l o f your exper ience and saying--

Zi rpo l i : The Criminal Rules Committee [of t h e J u d i c i a l Conference] i s composed of judges, lawyers, and professors (because you can appoint persons o t h e r than judges t o t he se committees), so t h a t w e had t h e b e n e f i t o f t h e t h r e e a r ea s of t h e law.*

On t h e Adminis t ra t ion of t h e Criminal Law, t h e committee cons is ted of one judge from each of t h e eleven c i r c u i t s (now twelve) and no lawyers--that was another matter--and t h e r e I r e a l l y had t o work p r e t t y hard because I d idn ' t have a r e p o r t e r . I had a represen- t a t i v e of t h e Adminis t ra t ive Of f i ce [of t h e Courts] , general counsel, M r . Car l Imlay, who was of tremendous he lp t o m e , bu t t h a t w a s some- t h ing t h a t I had t o do q u i t e a b i t of work on.

Sharp: Did you sha re wi th Judge Sweigert some of t he se th ings t h a t were going on i n t h e Committee on t h e Federal Criminal Rules?

Z i rpo l i : No, o the r than conversat ion. I mean t h e r e was no t r u e consu l t a t i on i n t h a t sense. The committee w a s b i g enough t h a t w e had a r e p o r t e r , bu t what w e did, and which would apply t o i t , w e would make a r e p o r t t o t h e j u d i c i a l conference f o r t h e Ninth C i r c u i t . So t h e judges would ge t a copy of ou r r epo r t .

As f a r a s , l e t ' s say, t h e f e d e r a l c r imina l r u l e s a r e concerned, those r u l e s were d i s t r i b u t e d throughout t h e coimtry before they were adopted. W e w e r e genera l ly allowed a s much a s e igh teen months f o r comment from judges and lawyers. We d i d n ' t g e t a s many as you would expect. That was t h e s u r p r i s i n g th ing . There weren ' t too many people t h a t r e a l l y took t h e t roub le t o go through i t and comment. Each judge got i t and he had t h e p r i v i l e g e of commenting.

Sharp: Did Judge Sweigert comment t o you?

Z i rpo l i : [ laughs] I c a n ' t r e c a l l a t t h e moment.

Sharp: I j u s t thought t h a t it was something t h a t he was i n t e r e s t e d i n a l ready , s o h e might have.

Z i rpo l i : --Although Judge Sweigert was a g r e a t e r s t i c k l e r on t h e c i v i l r u l e s than he was t h e c r imina l .

Sharp: Why is t h a t , do you th ink?

Z i rpo l i : Oh, i t is p r e t t y hard t o say. I guess because under t h e c i v i l r u l e s t he p r e t r i a l was f a r more s i g n i f i c a n t . ,The c r imina l cases do no t r e q u i r e a g r e a t dea l of p r e t r i a l . The bas i c p r e t r i a l problems i n

*See l is ts on p. 149a.

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

c r imina l c a se s a r e t h e r i g h t o f t h e defendant t o any s ta tement t h a t he had made, o r t h e r i g h t t o cop ies of s ta tements of w i tne s se s , under what is known as Sec t ion 3500 of T i t l e 18; o r t h e o b l i g a t i o n o f informing of an a l i b i de fense i f r eques ted by t h e U.S. a t t o r n e y ; and t h ings of t h a t cha r ac t e r . So t h e r u l e s were no t q u i t e as s i g n i f i c a n t .

There i s t h e theory o r i s s u e of t h e i d e a of j u d i c i a l r u l e making. I t h i n k t h e f e d e r a l c r im ina l r u l e s were o r i g i n a l l y w r i t t e n i n about 1944. The c i v i l r u l e s preceded i t by about t e n yea r s .

Tha t ' s an o b j e c t i o n t h a t J u s t i c e [William 0.1 Douglas made.

But t h e f e e l i n g t h a t maybe i t shou ldn ' t b e t h e judges and t h e s e committees t h a t a r e s i t t i n g around [ w r i t i n g new r u l e s ] .

Tha t ' s a good s u b j e c t f o r argument. As f a r as I a m concerned, I t h i n k i t is app rop r i a t e t h a t t h e J u d i c i a l Conference should b e t h e b a s i c p a r t y r e spons ib l e t he r e fo r . Now Congress i n s t e a d of j u s t adopt ing ou r suggested r u l e s o r f a i l i n g t o a c t on them w i t h i n a s p e c i f i e d per iod of t i m e , the reby making them l a w , has been going i n t o t h e proposed r u l e s i n g r e a t e r d e t a i l .

So i t i s becoming more o f a c a s e of congress iona l a c t s , s o t o speak, o r u l t i m a t e congress iona l r e s p o n s i b i l i t y t o a g r e a t e r degree than i t w a s be fo r e . I ' m no t s o s u r e t h a t t h a t ' s n e c e s s a r i l y good because when they g e t i t , i t t ake s them too damn long t o work i t o u t .

Tha t ' s probably t h e major--

This ha s been t h e problem t h a t arises wi th t he new evidence code, f o r i n s t ance . So t h e problems do a r i s e on t h a t s co re . But you can argue b a s i c a l l y on congress iona l r e s p o n s i b i l i t y .

I had a few a d d i t i o n a l ques t i ons on t h e Adminis t ra t ion of t h e Criminal Law Committee. One of t h e e a r l y r e p o r t s t h a t I saw w a s 1970, which w a s when Judge [George C.] Edwards [ J r . ] w a s s t i l l t h e c h a i r . There were ex t ens ive comments about t h e committee 's f e e l i n g s about Senate B i l l 30 which r e l a t e d t o t h e c o n t r o l of organized crime i n t h e United S t a t e s . Was t h a t something t h a t you worked on?

Yes, bu t even tua l l y i t r e s u l t e d i n some forms of congress iona l enactment. But t h e b i g b i l l , as o r i g i n a l l y p resen ted , wasn ' t g e t t i n g anywhere and w e f e l t t h a t they were invoking prov is ions t h a t weren ' t necessary and they were having problems i n t h e a r e a of p r o t e c t i v e custody. We had some doubt about t h e c o n s t i t u t i o n a l i t y of i t because t h e b i l l was extending p r o t e c t i v e custody beyond ques t i ons invo lv ing homicide o r t r e a son o r something o f t h i s cha r ac t e r . The b i l l would a l s o c r e a t e some crime c o m i s s i o n s t h a t w e f e l t were no t going t o be of any p a r t i c u l a r s e r v i c e and t h a t t h e b i l l would c r e a t e problems, which w e a l s o f e l t would j u s t prolong l i t i g a t i o n and j u s t make i t a l o t ha rder .

Zi rpo l i : So I don ' t r e c a l l t h e s p e c i f i c d e t a i l s and i f you look a t t h e r epo r t , t h e r epo r t won't t e l l you very much--I mean i f you look a t t h e r epo r t of t h e J u d i c i a l Conference--because i t merely r e f e r s t o Chapter X o r Chapter X I and who knows what Chapter X o r Chapter X I s a i d ? Looking a t a r e p o r t of t h a t na tu re wouldn't be very h e l p f u l o r s i g n i f i c a n t . [pauses t o go through papers]

There were provis ions. There were immunity provis ions . There were provis ions f o r housing, housing f a c i l i t i e s f o r people who committed c e r t a i n crimes, and t h e r e were problems of p r o t e c t i v e custody, s p e c i a l provis ions f o r dangerous of fenders . [pause] We d i d n ' t t h ink t h e r e ought t o be s p e c i a l s t a t u t e s f o r s p e c i a l th ings . I f t h e r e were sentencing provis ions , they ought t o be included i n t he o v e r a l l sen tenc ing provis ions .

These were some of t h e problems t h a t a rose . There were problems with r e l a t i o n t o t h e gran t ing of immunity t o wi tnesses under c e r t a i n circumstances. There were problems t h a t a rose wi th r e l a t i o n t o t h e wiretapping. There were problems i n r e l a t i o n t o t h e reforming of t h e grand jury.

There were problems with r e l a t i o n t o t h e secrecy of testimony of witnesses before t h e grand jury . The way t h e law is w r i t t e n now, i f I appear before t h e grand ju ry , t h e r e i s nothing t o s t o p me from going o u t and t e l l i n g anybody what I s a i d t o t h e grand jury . Though grand jury proceedings a r e s e c r e t and may n o t be d i s c lo sed , t h i s does no t apply t o a wi tness before t h e grand jury .

These were a l l problems t o which we gave cons idera t ion . Some of t h e a r ea s were s t r i c t l y mat te rs f o r t h e Congress and no t f o r t h e j ud i c i a ry and we would j u s t s o s t a t e t o Congress.

Now, t h e r e were a number of b i l l s of t h a t n a t u r e t h a t came up, inc lud ing some b i l l s t h a t came up wi th r e l a t i o n t o a reform of a n t i t r u s t . There was a per iod the re when t h e r e was going t o be a b i g crackdown on a n t i t r u s t and p e r m i s s i b i l i t y of g r e a t e r c l a s s a c t i o n s on t h e p a r t of u se r s .

Of course, they a r e a l l wonderful t h ings , but t h e important th ing i s t o say what w i l l t h e impact be on t h e cou r t s . I f you do t h i s , you say , "Well, t h a t ' s f i n e , we a r e p ro t ec t i ng t h e consumer." No one has stopped t o consider what t he u l t ima te impact on the cou r t would be o r t h e u l t ima te c o s t would be. Then you might f i n d yourse l f i n t rouble . Tha t ' s where t h e re fe rences t o [ t h e J u d i c i a l ] Conference always served a f a i r l y u s e f u l purpose because w e could a t l e a s t t e l l them what t h e impact on t h e cour t would be.

Sharp: With r e spec t t o t he J u d i c i a l Conference, I wonder i f you th ink the re might be some i s s u e s t h a t t h e J u d i c i a l Conference doesn ' t d e a l wi th r i g h t now t h a t i d e a l l y i t might dea l with?

Z i r p o l i : I n my view?

Sharp : Yes.

Z i r p o l i : I d o n ' t know t h a t they r e a l l y over look v e r y much. Of course , r i g h t now t h e J u d i c i a l Conference o f t h e United S t a t e s is g r e a t l y concerned abou t t h e bankruptcy c o u r t s and t h e r e s u l t o f t h e Supreme Court d e c i s i o n which s a i d t h a t t h e r e were b a s i c f u n c t i o n s t h a t t h e bank- r u p t c y judge could n o t perform because h e was n o t a n A r t i c l e I11 judge.

Now, t h a t is t h e most immediate problem a s i t a f f e c t s t h e c o u r t s . We are g e t t i n g t h e e f f e c t s of t h a t because t h e r e a r e a number of peop le i n t h e bankruptcy proceedings now who are a s k i n g f o r d i f f e r e n t types of o r d e r s , r e s t r a i n i n g o r d e r s , and t h i n g s o f t h a t c h a r a c t e r . They won't accep t r u l i n g s from t h e bankruptcy judge.

But h e r e we do have some very , ve ry s e r i o u s problems t h a t have t o b e reso lved and Congress may r e s o l v e them by j u s t making them A r t i c l e I11 judges and t h a t ends i t .

Z i r p o l i : Pe~:dtng l e g i s l a t i o n we have adopted a procedure f o r r e f e r e n c e of bankruptcy m a t t e r s t o t h e bankruptcy judge as a s o r t of s p e c i a l mas te r . The p l a n adopted by a g e n e r a l c o u r t o r d e r h a s been adopted throughout t h e c i r c u i t . The c i r c u i t made t h a t a r u l e and i t was adopted throughout t h e c i r c u i t . W e g e t t h i s exchange from t i m e t o t i m e . W e f i n d o u t how o t h e r c o u r t s hand le t h e i r b u s i n e s s . That i s one o f t h e purposes of t h e Ninth C i r c u i t j u d i c i a l conference each y e a r . You go t o a conference and you l e a r n q u i t e a b i t from t h e o t h e r judges and t h e innova t ions t h a t a r i s e .

A g r e a t example of t h e innova t ions t h a t a r i s e was t h e i n n o v a t i o n t h a t brought abou t t h e c r e a t i o n o f t h e m u l t i d i s t r i c t pane l and t h e t r a n s f e r r i n g o f m u l t i d i s t r i c t c a s e s t o a s i n g l e judge. These were a l l p a r t o f t h e i n n o v a t i v e p r o c e s s . Some peop le have i n n o v a t i v e p rocesses t h a t you might n o t l i k e . There i s one on t h e method of s e t t l e m e n t t h a t they have t h a t a l o t o f judges a r e t a l k i n g about f a v o r a b l y where they have t h e e q u i v a l e n t o f a m i n i - t r i a l , and have t h e j u r y g i v e a pre l iminary v e r d i c t . Then t h e c a s e i s s e t t l e d based on t h a t . T h a t ' s a form t h a t I d o n ' t approve because I t h i n k I have a b e t t e r procedure f o r s e t t l i n g c a s e s , b u t t h i s i s an i n n o v a t i o n t h a t some people might l i k e ve ry much and adop t .

Sharp: The way you t a l k about t h e work o f t h e judges and t h e work of t h e d i s t r i c t s , i t is very i n d i v i d u a l i z e d .

Z i r p o l i : Now, what do you mean by i n d i v i d u a l i z e d ?

Sharp: Each of t h e d i s t r i c t judges seems t o have h i s o r h e r own way of working i n t h e courtroom. You spent some t i m e t e l l i n g me about your ways of working i n t h e courtroom.

Z i rpo l i : Oh, working i n t h e courtroom it is t r u e , bu t we do have some general r u l e s . W e have ou r own Rules Committee. Judge Schwarzcr is chairman of t h e Rules Colmnittee and. we review ou r rules every year o r two yea r s and update them. That goes back t o Judge Sweigert and h i s t i m e . But you have a commi t t ee the re t h a t r ep re sen t s t h e cour t . The mat te r is then discussed a t a judges1 meeting and t h e judges a l l have t h e i r input i n i t . Then they adopt a r u l e t h a t i t i s adopted a f t e r every judge has had an opportuni ty t o comment on i t and give us t h e b e n e f i t of h i s o r he r i n p u t , so t h e r e is enough exchange r e a l l y .

It 's ind iv idua l ized i n t h e s ense t h a t genera l ly t h e chairman of t h e committee i s doing t h e spade work and t h e hard work, b u t he is g e t t i n g suggest ions from o the r judges from t i m e t o t i m e and, of course, he re w e have t h e b e n e f i t of t h e common lunch room and w e can d iscuss problems every day i f we wish. But we do meet approximately once every month with a f u l l ca lendar of mat te rs under d i scuss ion .

Sharp: These would vary from procedural r u l e s t o what o t h e r s o r t s of t op i c s on t h e calendar?

Z i rpo l i : To i l l u s t r a t e some of t h e th ings discussed a t a lunch meeting, i f a new s t a t u t e i s enacted and we want t o know what t h e e f f e c t of i t i s and t h e impact on t h e cou r t , w e have t h e most knowledgeable person wi th r e l a t i o n t o t h a t problem come t o lunch and t o t e l l us about i t .

Sentencing and t h e Sentencing Commission

Sharp: Would t h e r e a l s o b e some d iscuss ion of i nd iv idua l cases and how judges might be handl ing them?

Z i rpo l i : Oh, no t q u i t e t h a t much on ind iv idua l cases . Sometimes you might confer with another judge on t h e sentencing problems, i f you f e e l you have one. Of course, they have a plan i n some d i s t r i c t s where they do j u s t t h a t ; t h r e e judges w i l l confer . I have t h e r e s p o n s i b i l i t y of sentencing, but I w i l l confer with two o the r s and g e t t h e i r views before I sentence. But we don1 t do t h a t very o f t e n he re . Sometimes a judge w i l l confer . He i s a l i t t l e concerned about what would t h e r eac t ion be t o t h i s k ind of a s i t u a t i o n and h e ' l l come and say, "What do you th ink about i t ? "

Sharp: You were t a l k i n g about t h e Sentencing Commission and t h e oppos i t ion of t he Committee [on t h e Adminis t ra t ion of t he Criminal Law] t o t h e idea of a sen tenc ing c o m i s s i o n . *

Zi rpol i : We're not opposing a commission; we're opposing t h e idea of a commission a s a s epa ra t e , independent body and a s a body t h a t rece ives i ts r e s p o n s i b i l i t y pr imar i ly from t h e execut ive. The execut ive has t h e o b l i g a t i o n of enforcing, no t sentencing. Sentencing is t h e func t ion of t he cour t .

Ins tead of c a l l i n g i t a commission, we could say, "Let t h e conference set up a committee." You don ' t have t o h i r e new people o r pay new people. The conference can s e t f o r t h t h e i r r u l e s and guide- l i n e s f o r sentencing, t h e f a c t o r s t o be considered be fo re imposing sentence.

Now, those a r e no t going t o change from day t o day and, a s I say, w e j u s t don ' t want t o c r e a t e a commission f o r which t h e r e is no a c t u a l need.

Sharp: But i t i s n ' t a r e s i s t a n c e on t h e p a r t o f t he committee f o r uniformity?

Z i rpo l i : Oh, no; oh, no. W e be l i eve i n uniformity. We a r e a s despera te ly t r y i n g t o do t h a t a s anyone. In our cou r t s , i n order t o he lp b r ing about uniformity, we used t o ge t r e p o r t s on every sentence, a f a c t u a l background, which i s d i s t r i b u t e d t o t h e judges every month f o r review.

This would be p a r t i c u l a r l y s i g n i f i c a n t , l e t ' s say, i n t h e a r e a of t a x evasion o r i n t h e days of t h e d r a f t r e s i s t ance . You wouldn't want one judge sending t h e fe l low t o j a i l f o r f i v e years , and another one p u t t i n g him on probat ion o r g ive him s i x months o r two years . W e would get a l l o f t he se r e p o r t s and we'd look a t them and we'd s e e how our cou r t judges were r e a c t i n g s o we could have a b e t t e r understanding and b r ing about some g rea t e r uniformity.

Uniformity i s wonderful and I be l i eve i n i t , bu t you can only go s o f a r because i t i s n ' t t h a t o f t e n t h a t two cases a r e r e a l l y a l i k e . There a r e d i f f e r e n t circumstances i n r e l a t i o n t o each person ' s l i f e . I mean t h e f a c t o r s t h a t prompted him t o commit t h e crime, h i s respon- s i b i l i t y , h i s background, h i s educat ion, t h e temptat ions t h a t were pu t i n h i s way, whether he i s remorseful. You have t o look a t a l l of t he se var ious f a c t o r s ; whether there was v io lence involved o r not involved.

*Report of t h e Committee on the Adminis t ra t ion of t h e Criminal Law, contained i n Report o f t he Proceedings of t h e J u d i c i a l Conference of t h e United S t a t e s , 1976.

Z i r p o l i :

Sharp :

ZTrpoli :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

One o f t h e f u n c t i o n s of t h e commission would be t o set f o r t h t h e v a r i o u s c r i t e r i a upon which t o u l t i m a t e l y p r e d i c a t e a sen tence .

But t h a t would be , you t h i n k , b e t t e r housed w i t h i n t h e J u d i c i a l Conference a s opposed t o a s e p a r a t e e n t i t y ?

Yes.

I saw i t mentioned i n your r e p o r t , t h e r e p o r t o n S e n a t e B i l l s 2698 and 2699 (2699 was t h e Sentencing Commission; 2698 was t h e mandatory minimum s e n t e n c e b i l l ) , t h a t your committee sought t h e counse l o f t h e Proba t ion Committee of t h e J u d i c i a l Conference, of which Judge Wollenberg, o f course , was a member. I wonder i f t h e r e was t h i s s o r t of cross-exchange--

What happened, when you g e t i n t o a s i t u a t i o n o f t h a t c h a r a c t e r , Judge Wollenberg would b e i n v i t e d t o o u r committee on t h e Admin is t ra t ion of t h e Criminal Law, and h e would i n v i t e m e t o h i s committee. We would be exchanging views and u l t i m a t e l y come o u t on some t h a t we were i n a s e n s e bo th agreed upon. We wouldn' t come o u t wi th a c o n f l i c t .

No, I meant s o r t of a c r o s s - f e r t i l i z a t i o n o f i d e a s .

Oh, y e s .

I wasn ' t s u r e how independent ly t h e s e v a r i o u s committees w i t h i n t h e J u d i c i a l Conference worked.

They're independent b u t , f o r i n s t a n c e , t h e r e i s a member of t h e [Criminal] Rules Committee who is a l s o s e r v i n g on t h e Admin is t ra t ion o f t h e Criminal Law Committee. H e i s t h e l i a i s o n judge f o r t h e two committees. I was s e r v i n g i n t h a t c a p a c i t y u n t i l I became chairman of t h e Admin is t ra t ion of t h e Criminal Law Committee. I was l i a i s o n member s e r v i n g on b o t h committees.

Tha t ' s important t o have.

L e t ' s s e e i f I can j u s t wind t h i s up w i t h a few o t h e r q u e s t i o n s . I d i d wonder abou t t h e r o l e of t h e [U.S.] a t t o r n e y g e n e r a l i n t h e J u d i c i a l Conference and h i s o f f i c e , and how much he might have been involved.

The a t t o r n e y g e n e r a l , a r e p r e s e n t a t i v e of t h e a t t o r n e y g e n e r a l , sits on t h e Federa l Criminal Rules Committee and we l i s t e n t o h i s views. He may e x p r e s s them s t r o n g l y and we may d i s a g r e e . I f we d i s a g r e e , we say s o . I f h e wants t o i n s e r t a d i s s e n t , we add h i s d i s s e n t . T h a t ' s happened more than once.

I ' m s u r e ! Are t h e r e some s p e c i f i c k i n d s o f d i s s e n t t h a t t h e a t t o r n e y g e n e r a l ' s r e p r e s e n t a t i v e might s o r t o f a u t o m a t i c a l l y have?

Zirpol i : The a t t o rney general may have had from t i m e t o t i m e some views about t he n a t i o n a l s e c u r i t y and wiretapping t h a t might no t be i n conformity with t h e views of t h e j ud i c i a ry , s o you hear h i s views. But t h e sub jec t is cont ro l led by t h e j ud i c i a ry . You can wire tap under c e r t a i n circumstances, an emergency, bu t you have t o make a r e p o r t w i th in for ty-e igh t hours ( I ' v e fo rgo t t en t h e time l i m i t now) t o the s p e c i a l committee t h a t has been s e t up i n t h e j ud i c i a ry , o r you go t o them i n advance and get a u t h o r i t y t o conduct c e r t a i n types of domestic su rve i l l ance i n t he way of wiretaps o r otherwise.

It is t h e same way with wiretapping f o r racke teer ing . You go t o cou r t and ge t an o rde r f i r s t . That ' s been a sub jec t of some debate -

and disagreement between the a t t o rney g e n e r a l ' s ' o f f i c e and t h e j ud i c i a ry .

Of course, i f you go back f a r enough, i f you go back f i f t y years , why, they conducted wiretapping! [ laughs]

Sharp: That ' s r i g h t , you were t e l l i n g me about some of t h a t .

Z i rpo l i : Those were p r a c t i c e s t h a t a r e no t proper.

Sharp: That ' s j u s t about a l l of t h e quest ions t h a t I have about t h e J u d i c i a l Conference.

V I I THE NORTHERN DISTRICT COURT

Friendship and Serv ice wi th Will iam T. Sweigert

Sharp: I f you ' re o u t of steam then w e won't go on, bu t I had two o t h e r k inds of ques t i ons . I wonder i f you might l i k e t o make some no t e s about Judge Sweigert and some s o r t s of t h ings you might r e c a l l about him and h i s approach t o judging.

Z i rpo l i : Did you see t h e s t o r y i n The Recorder?

Sharp : No, I d i d n ' t see t h a t .

Z i rpo l i : You ought t o g e t t h e s t o r y i n The Recorder. See i f you can ge t a copy of i t downstai rs . I have f o r g o t t e n which day i t w a s , Thursday o r Fr iday of l a s t week.* I adjourned c o u r t i n t r i b u t e t o t h e memory of Judge Sweiger t . That ' s my comment i n open c o u r t . [g ives i n t e r - viewer comments]**

I might say t h a t Judge Sweigert was b e a u t i f u l l y organized and we l l d i s c i p l i n e d , and I would r epea t every th ing t h a t I s a i d i n c o u r t a s f a r a s t h a t goes. He was a very warm and f r i e n d l y person. He w a s a wonderful man t o b e w i th a t lunch time. H e cou ld t e l l s t o r i e s i n t h e s t y l e t h a t few people could do and they a l l had a moral t o them, o r i f h e t o l d a joke i t w a s r e a l l y something t h a t was funny and had a p o i n t t o i t . He had some s t r o n g views and moral convic t ions and he s t ood by them. I have r a r e l y s een him become aroused, bu t I a l s o r e c a l l one occas ion i n which he d i d and t h e r e was every j u s t i f i c a t i o n i n t h e world f o r i t . This w a s i n a [Ninth C i r c u i t ] j u d i c i a l conference--

*An ob i t ua ry on Judge Sweigert appeared i n The Recorder, 1 7 February 1983.

**Judge Z i r p o l i ' s comments on Judge Sweigert appear on p. 171a.

STATEMENT OF SENIOR JUDGE ALFONSO J. ZIRPOLI:

HAVING BEEN PRIVILEGED TO ENJOY A CLOSE PERSONAL

AND PROFESSIONAL RELATIONSHIP WITH OUR BELOVED SENIOR

JUDGE WILLIAM T. SWEIGERT THROUGHOUT THE GREATER PORTION

OF HIS PROFESSIONAL LIFE, WHICH COVERS A SPAN OF SIXTY

YEARS OF DISTINGUISHED SERVICE AS A LAWYER, TEACHER,

DEPUTY ATTORNEY GENERAL. EXECUTIVE SECRETARY TO GOVERNOR

EARL WARREN, AND STATE AND FEDERAL JUDGE, IT IS WITH

GREAT SORROW THAT I LEARNED AND MUST PAINFULLY ACCEPT

THE FACT THAT HE WILL NO LONGER TAKE HIS PLACE WITH

US ON THIS COURT.

WE BOW IN REVERENCE AND TRIBUTE TO THIS WARM AND

FRIENDLY GENTLEMAN WHOSE STRENGTH OF CHARACTER. IMPECCABLE

LEGAL SCHOLARSHIP AND WISDOM, LACED WITH COMMON SENSE,

ENABLED HIM TO BRING TO THIS COURT NOT ONLY A PROFOUND

UNDERSTAN~ING OF THE LAW, BUT A DEEP AND ABIDING SENSE

OF THE NATURE OF HIS RESPONSIBILITY IN THE ADMINISTRATION

OF JUSTICE, WHICH HE CONSCIENTIOUSLY DISCHARGED WITH

GREAT INDUSTRY, COURAGE AND COMPASSION AND WITHOUT FEAR

OR FAVOR.

HE WAS A TRULY GREAT JUDGE, WHO POSSESSED AN

INHERENT CAPACITY "TO HEAR COURTEOUSLY, TO ANSWER

WISELY. TO CONSIDER SOBERLY AND DECIDE IMPARTIALLY."

WHILE HIS LOSS MEANS SO MUCH TO US AND TO THE ERA

HE SYMBOLIZED AND THE LEGACY HE LEFT, WE MOURN HIM AS

A FRIEND AND EXPRESS OUR DEEPEST SYMPATHY TO HIS WIDOW,

VIRGINIA, AND TO ALL THE MEMBERS OF HIS FAMILY.

THERE IS COMFORT IN THE KNOWLEDGE THAT HE LIVED

A FULL AND USEFUL LIFE. A LIFE THAT MADE ALL WHO CAME

INTO CONTACT WITH HIM, AND IN PARTICULAR THIS COURT

AND THE ADMINISTRATION OF JUSTICE, THE BETTER BECAUSE

HE PASSED OUR WAY.

WHEN THIS COURT ADJOURNS TODAY, IT WILL DO SO IN

RESPECTFUL TRIBUTE TO THE MEMORY OF THE LATE SENIOR

JUDGE WILLIAM T. SWEIGERT.

Zirpol i : which r e l a t e d t o whether o r no t we should name Judge Wollenberg a s our d i s t r i c t r ep re sen t a t i ve on t h e J u d i c i a l Conference of t h e United S t a t e s . A judge i n t h e Southern D i s t r i c t w a s ob j ec t i ng and made some comments t h a t caused Judge Sweigert t o rise t o h i s f e e t and r e a l l y l e t him have i t . That ' s t h e only time I ever saw him g e t t r u l y angry, by way of i l l u s t r a t i o n .

H e could be c r i t i c a l i n cou r t a t t i m e s but h e d id i t i n such a way t h a t i t was b e a u t i f u l . H e never had an i o t a of mal ice i n any- th ing h e ever d id o r ever s a i d . So h e was about a s i d e a l a gentleman a s you can f i nd . I ' m not going t o desc r ibe t h e i d e a l gentleman, bu t i f you g ive m e a l l of t h e v i r t u e s of an i d e a l gentleman, I am s u r e he would f i t them a l l .

H e was w e l l read. That ' s why h e was such an i n t e r e s t i n g person a t t h e lunch t ab l e . No mat te r what t h e sub jec t was, he was w e l l read. He had a g r e a t in f luence on Ea r l Warren a s governor, probably a g r e a t e r i n f luence on Ea r lwar ren than any o the r man t h a t I could th ink of .*

Sharp: Why was t h a t poss ib le , do you th ink , t h a t he had such a g r e a t in f luence?

Zi rpol i : Ea r l Warren had named him deputy a t t o rney genera l [of C a l i f o r n i a ] . H e served t h e r e f o r e i g h t yea r s . Then he named him h i s execut ive s ec re t a ry . E a r l Warren learned t o t r u s t him, l e a n on him, and he valued h i s counsel and h i s advice. I f anybody d id anything t o convert Ea r l Warren t o t h e l i b e r a l t h a t he eventua l ly became, I would say i t was Judge Sweigert.

Sharp: I n terms of Judge Sweigert being a judge, how do you th ink he was d i f f e r e n t than you a r e , f o r example, i n t h e courtroom?

Z i rpo l i : I would s ay t h a t h i s c u l t u r a l background i s b e t t e r than mine, f o r one th ing . H i s approach is b e t t e r than mine i n t h a t he i s b e t t e r organized than I am. H e kept copious no tes , which I don ' t do. I r e l y on t h e t r a n s c r i p t . I don ' t know whether I p r o c r a s t i n a t e more than h e d id o r no t . I ' m no t going t o say . I don ' t l i k e t o say t h a t I pro- c r a s t i n a t e a t a l l . [ laughs] But I ' l l say one th ing , t h a t he was very i ndus t r i ous and he got h i s work ou t on t i m e , i n p l en ty of t i m e .

*A lengthy o r a l h i s t o r y in te rv iew was conducted i n 1972 wi th Judge Sweigert, e n t i t l e d , "William T. Sweigert: Democrat, Fr iend, and Advisor t o Ear l Warren," a s p a r t of t h e Ea r l Warren Era o r a l h i s t o r y p r o j e c t . The in te rv iew t r a n s c r i p t is i n process .

Z i r p o l i : You have t o e v a l u a t e judges i n d i f f e r e n t p e r i o d s of t h e i r l i f e . I f you want t o e v a l u a t e Judge Sweiger t , you don ' t e v a l u a t e him by t h e las t y e a r of h i s l i f e . You have t o e v a l u a t e him by t h e preceding y e a r s because , having d i e d o f cancer , i t ' s q u i t e obvious t h a t i n t h e las t y e a r s , p a r t i c u l a r l y t h e las t s i x o r seven months, h e w a s going downhi l l and n a t u r a l l y w a s a d i f f e r e n t person. H e w a s more q u i e t a t t h e lunch t a b l e . He d i d n ' t g e t t h e same p l e a s u r e of t e l l i n g s t o r i e s t h a t h e used t o g e t . It would be ha rd t o g e t him t o r e p e a t a s t o r y i n t h e l as t months, whereas b e f o r e h e used t o r e l i s h i n t e l l i n g s t o r i e s . A new judge would a r r i v e and h e wouldn' t want t h e judge t o h e a r i t , t h a t ' s a l l . [pause]

Courtroom Comments: Lawyers' S t y l e s and J u r i e s

Sharp: I have a few q u e s t i o n s t h a t s p i n o f f from las t t ime when w e were t a l k i n g abou t a n t i t r u s t and some o t h e r m a t e r i a l .

I wondered i f you s e e now t h a t t h e r e a r e d i f f e r e n c e s i n a t t o r n e y s ' s t y l e s depending o n t h e k ind o f c a s e s t h a t a r e a t hand?

Z i r p o l i : Na tura l ly t h e r e a r e . There a r e , d i f f e r e n c e s i n s t y l e t h a t r e l a t e t o t h e i n h e r e n t t a l e n t s and t h e b e n e f i t s o f thorough p r e p a r a t i o n . I f you a r e a n i n h e r e n t l y g r e a t t r i a l lawyer w i t h a tremendous f e e l f o r t h e courtroom, t h e r e a r e c e r t a i n types o f c a s e s t h a t you may t r y w i t h g r e a t e a s e o r f a c i l i t y .

I f , on t h e o t h e r hand, you have a c a s e t h a t r e q u i r e s tremendous p r e p a r a t i o n and d e t a i l , a l l o f t h e s e i n h e r e n t q u a l i t i e s a r e n o t going t o h e l p you because you a r e going t o have t o engage i n t h a t p r e p a r a t i o n and d e t a i l .

So, when you g e t i n t o t h e a r e a o f a n t i t r u s t , p e r s o c a l i t y i s meaningful b u t f a r more meaningful i s p r e p a r a t i o n and unders tanding of t h e d e t a i l , o r g a n i z a t i o n . You g e t i n t o a n t i t r u s t l i t i g a t i o n and you have t o have your c a s e w e l l organized and p repared s o t h a t every- t h i n g fo l lows i n i ts l o g i c a l o r d e r .

I f you have a one-day o r a s h o r t two-day t r i a l , your p e r s o n a l i t y can b e f a r more s i g n i f i c a n t t h a n i t can b e i n a l o n g t r i a l .

One b a s i c example o f t h e d i f f e r e n c e s were Johnny Taaf fe and Harold Faulkner , t h e two g r e a t c r i m i n a l t r i a l lawyers . Fau lkner ' s g r e a t n e s s was based more on t h e thoroughness of h i s p r e p a r a t i o n . Johnny Taaf£e, n o t t h a t he wasn ' t thorough and w e l l prepared, had a l i t t l e f l a i r about him, a n a u r a about him, t h a t was a l i t t l e d i f f e r e n t . He cou ld s a y something t h a t i f a n o t h e r lawyer s a i d i t , i t would sound

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

l i k e corn, b u t i f h e s a i d i t , i t was f i n e . For i n s t a n c e , i f h e s a i d , " the temples o f j u s t i c e w i l l crumble," a n express ion o f t h a t character, i t was f i n e , i t was okay.

So t h e r e a r e d i f f e r e n c e s , b u t of course t h e r e i s n o t h i n g t o compare w i t h p r e p a r a t i o n and thorough knowledge.

Is t h e p r e p a r a t i o n always obvious?

Oh, y e s , I would s a y y e s , i t 's obvious.

Maybe t h i s i s p a r t of your comparison and c o n t r a s t of M r . Faulkner and M r . Taaffe, b u t have t h e r e been changes over t h e y e a r s i n t h e way lawyers approach t h e i r cases?

T h e i r approaches may d i f f e r , b u t sometimes I comment t o t h e lawyers abou t t h a t . My f a v o r i t e comments come from my exper ience i n p a r t and i n p a r t from P i e r o Calamandrei, who was a noted I t a l i a n j u r i s t . H i s l i t t l e book, Eulogy o f Judges, i s f u l l of gems. When a lawyer i s g e t t i n g too l o u d o r something, I might g ive him a quo te from Calamandrei t o t e l l him t h a t he s h o u l d n ' t c r e a t e such a g l a r e when i n d i r e c t l i g h t i n g is f a r more e f f e c t i v e ! [ l a u g h t e r ]

There are some o f t h o s e d i f f e r e n c e s . You don ' t t r y t o comment. You have t o b e c a r e f u l abou t commenting t o lawyers . I f a lawyer wants t o come i n and h e is a new young lawyer and h e wants t o g e t t h e judge 's r e a c t i o n , f i n e , I a m g lad t o g i v e i t t o him. It 's a good i d e a . But you c e r t a i n l y c a n ' t b e c r i t i c a l o f a lawyer i n c o u r t u n l e s s h e g e t s o u t o f l i n e . Then you have t o c a l l him on i t because i f h e i s g e t t i n g o u t of l i n e b e f o r e t h e j u r y , you c a n ' t have t h e j u r y walk o u t o f t h a t courtroom w i t h a m i s i n t e r p r e t a t i o n o f t h e law, o r a miss ta tement o f f a c t .

A couple of t imes you have mentioned your a c t i v e r o l e i n q u e s t i o n i n g t h e w i t n e s s e s and o t h e r s d u r i n g a t r i a l . How does an a t t o r n e y accomodate t h i s ?

Oh, sometimes h e accomodates, sometimes h e goes o u t i n t h e courtroom and s a y s , "The son o f a gun, h e s p o i l e d my cross-examination!" [ l a u g h t e r ]

Does everybody know t h a t about you?

Oh, I t h i n k t h a t is p r e t t y w e l l known.

Is t h a t a good t h i n g ? Is i t perce ived a s a good t h i n g ?

Oh, probably i n t h e l o n g r u n i t i s . I may go t o o f a r though and t h a t i s because o f my n a t u r e and my i n a b i l i t y t o r e s t r a i n myself a t times. But I a m n o t tough on lawyers . I am considered a f a i r l y easygoing

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

judge and I am not a s t i c k l e r f o r s t r i c t adherence t o t h e r u l e s . I f I can d ispose of a mat te r and the lawyers a r e a l l t he re , I am not going t o worry about whether they complied w i th a l l of t h e requi red r u l e s o r no t . Now, some o t h e r judges look a t i t e n t i r e l y d i f f e r e n t l y . They j u s t won't bo ther t o l i s t e n t o you unless you comply wi th t h e r u l e s .

Now, what about j u r i e s ? Have ,you seen a l o t of changes i n j u r i e s , and how they dea l with cases i n t h e years t h a t you have been on t h e bench?

It depends upon how f a r back you want t o go. I f you go back f o r t y o r f i f t y years , t h e p r o b a b i l i t y of convic t ions were f a r g r e a t e r than they a r e today, f o r ins tance , i n a c r imina l case. Once i n a while , j u ro r s a r e no t t r u t h f u l . They w i l l t e l l you t h a t they have no p a r t i c u l a r p re jud ice o r b i a s . Then you end up wi th a ju ry hung eleven t o one and you f i n d t h a t someone is opposed t o t h e Vietnam war, f o r i n s t ance , [and] h e wasn't going t o f i nd anyone g u i l t y of d r a f t evasion under any circumstance. I am us ing t h i s a s an extreme example bu t i t i l l u s - t r a t e s what I have i n mind.

But on the whole, t h e ju ry system works o u t very wel l . I f t he ju ry pays a t t e n t i o n , they a r e going t o do p r e t t y we l l . They g e t a d e f i n i t i o n of a reasonable doubt from t h e judge and i f t h e f a c t s c r e a t e a reasonable doubt i n t h e i r m i n d , t h e y l r e no t supposed t o r e t u r n a v e r d i c t of g u i l t y . Therefore, even though you might no t agree wi th t h e j u ry ' s v e r d i c t , i t must be accepted without comment.

Now, t h e composition of j u r i e s has changed considerably s i n c e you were f i r s t an attorney--

Oh, yes , now i t ' s r ep re sen t a t i ve because i t i s b a s i c a l l y taken from t h e v o t e r r e g i s t r a t i o n lists. I n t h e o l d days, you go back a t l e a s t f i f t y years and you f i n d t h a t t h e ju ry was composed of members of t he Olympic Club, t h e Bohemian Club, t h e P a c i f i c Union Club, t he clubs here on Van Ness Avenue, and names suggested by t h e var ious a s s i s t a n t U.S. a t t o rneys . People would suggest names t o t h e c l e r k s and they would throw a l l of those names i n t he ju ry wheel. It was an e n t i r e l y d i f f e r e n t ju ry i n my view. It c e r t a i n l y was no t r ep re sen t a t i ve . I n t h e e a r l y days, women weren't on t h e jury anyway. Now the re a r e more women on t h e ju ry than men.

That ' s because of work s i t u a t i o n s ?

Pr imar i ly .

Does t h a t seem a b e t t e r way t o go?

Z i rpo l i : Well, i t ' s a t l e a s t a f a i r way t o go, d e f i n i t e l y .

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Las t t ime we t a l k e d abou t t h e i s s u e o f t h e e x p e r t i s e of t h e judge. What about t h e i s s u e o f t h e e x p e r t i s e o f t h e j u r y ? I saw a n o t e t h a t suggested t h a t sometimes a c a s e can g e t over t h e c o l l e c t i v e heads o f t h e ju ry .

T h a t ' s a problem. f i a t ' s a problem of an a n t i t r u s t case . There a r e c e r t a i n types o f l i t i g a t i o n t h a t r e a l l y d o n t t > l e n d themselves t o a j u r y t r i a l . I t h i n k a complicated a n t i t r u s t c a s e would n o t l end i t s e l f t o a j u r y t r i a l . I had proposed l e g i s l a t i o n y e a r s ago t h a t would remove t h i s type o f l i t i g a t i o n from t h e r i g h t t o a j u r y t r i a l .

How f a r d id t h a t g e t ?

It d i d n ' t g e t ve ry f a r . They ' re s t i l l t a l k i n g abou t how t o r e s o l v e t h a t . There have been s e v e r a l d e c i s i o n s on t h i s q u e s t i o n and I d o n ' t know what t h e [U.S.] Supreme Court w i l l u l t i m a t e l y f i n d , i f t h e r e is a s i t u a t i o n t h a t is too much f o r a j u r y . I f you g e t i n t o ve ry t e c h n i c a l a r e a s , .you may f i n d t h a t ve ry d i f f i c u l t . There could b e d i f f i c u l t y even i n a p a t e n t s u i t , an a n t i t r u s t suit. It cou ld b e v e r y d i f f i c u l t i n ve ry complicated b u s i n e s s t r a n s a c t i o n s , w i t h c o r p o r a t i o n s and numerous p a r t i e s involved. You t r y t o r e s o l v e t h e s e by p r e p a r i n g g l o s s a r i e s f o r t h e ju ry . Every e f f o r t i s made t o f a c i l i t a t e t h e work o f t h e j u r y b u t , as I s a y , t h e r e a r e s i t u a t i o n s t h a t could ve ry w e l l b e w e l l over t h e i r head.

/I /I

Are t h e r e advantages and weaknesses a s w e l l i n judges r a t h e r t h a n a t t o r n e y s conduct ing a p re l iminary examination f o r t h e p r o s p e c t i v e j u r o r ?

Oh, I am 100 p e r c e n t i n f a v o r o f t h e procedure t h a t we employ. The judge a s k s t h e q u e s t i o n i n such a f a s h i o n as n o t t o c r e a t e any innuendoes. I n o t h e r words, t h e judge would i n q u i r e as t o t h e background o f t h e j u r o r s . H e i s n o t going t o s t a r t probing a j u r o r ' s mind by o f f e r i n g a q u e s t i o n t h a t s u g g e s t s i n i t s wording how h e i s supposed t o r e a c t .

The judge i s as t h e n e u t r a l one?

As f a r a s I ' m concerned, I never had any problem on i t . I i n t e r r o g a t e t h e p r o s p e c t i v e j u r o r s a s thoroughly a s I can. When I f i n i s h , I a s k , "Are t h e r e any q u e s t i o n s t h a t counsel wishes t o ask?" Rarely do they a s k any q u e s t i o n s o r t h e y a s k , "I d i d n ' t h e a r what s h e s a i d h e r husband d id , " o r would s h e e l a b o r a t e o;?r a p a r t i c u l a r p o i n t . Tha t ' s abou t a l l t h a t ' s e v e r happened i n a l l t h e y e a r s I have been s i t t i n g on j u r y c a s e s .

You see, i n t h e state c o u r t s p i c k i n g a j u r y i n some c r i m i n a l c a s e s w i l l t a k e weeks.

Zirpol i : Here you can pick a ju ry i n an hour o r two hours. For a very complicated case i t may take you one o r two days a t t h e most, par- t i c u l a r l y i f i t is a ca se t h a t has rece ived much pub l i c n o t o r e i t y and is of such a charac te r t h a t you f e e l you should i n t e r r o g a t e t h e j u ro r s i nd iv idua l ly . Then i t takes a l i t t l e more t i m e , bu t you can see t h e tremendous d i f fe rence . There is s t i l l much a c t i v i t y on t h e p a r t of some lawyers who want g r e a t e r p a r t i c i p a t i o n and on t h e p a r t of l e g i s l a t u r e s who now a r e consider ing t h e f e d e r a l system because they see t h e enormous savings of t i m e and expense.

Sharp: So t h a t i s something t h a t might end up l e g i s l a t i v e one way o r t h e o the r .

Z i rpo l i : Yes, t h e r e is a b i l l before Congress t h a t would permit a t t o rney p a r t i c i p a t i o n . So f a r i t has never been enacted. On t h e o the r hand, t h e r e i s now suggested l e g i s l a t i o n on t h e s t a t e s i d e t o fol low o r adopt t h e f e d e r a l system. But w e have i t because our r u l e says t h a t t h e cour t may permit counsel t o participate--we don ' t do i t very o f t e n but w e may. Some.judges do t o a l i m i t e d degree.

Sharp: That is a l l t h e quest ions t h a t I had f o r today. A r e t h e r e some th ings t h a t w e haven ' t covered t h a t you thought w e should on these t op i c s?

Z i rpo l i : Well, no t based on your le t ter . W e have done f a i r l y w e l l . I undoubtedly w i l l t h ink of a l o t of th ings l a t e r . I t ' s j u s t l i k e a gentleman does when he makes a speech a t a b i g d inner when he i s d r iv ing on h i s way home. He th inks of a l l of t he n i c e t h ings he could have s a i d , o r t h e jokes o r s t o r i e s he could have t o l d .

f i/

Conscientious Objection and Se l ec t i ve Conscientious Objection: U.S. v . McFadden and Other Cases

Sharp: I thought t h a t we might s t a r t by t a l k i n g some about t he i s s u e s t h a t were r a i s e d i n t h e fou r cases--.the S t au f f e r , t h e Browning, t he Mi l l e r , and the Goodwin.* They a l l involved men who had f i l e d f o r conscient ious

*The complete c i t a t i o n s f o r t he se cases a r e P r iva t e Michael J. S t a u f f e r . v . Melvin Laird, Secre ta ry of Defense, e t a l . , 334 F. Supp. 571 (1971); James Andrew M i l l e r v . Melvin Laird, a s Secre ta ry of Defense, e t a l . , 318 F. Supp. 1401 (1970); P r iva t e Willard Goodwin, I1 v. Melvin La i rd , - e t c . , e t a l . , 317 F. Supp. 687 (1970); Robert Pack Browning v. Melvin Laird, e t c . , e t a l . , 323 F. Supp. 661 (1971).

Sharp: o b j e c t o r s t a t u s and f o r wi thdrawal from t h e army, b u t they were a c t u a l l y habeas corpus c a s e s when they came t o you. At t h e p o i n t t h a t t h e c a s e s came t o you, they had a l l been denied t h e CO c l a s s i f i - c a t i o n .


Sharp: One o f t h e t h i n g s t h a t I n o t i c e d f i r s t about t h e cases is t h a t they show a b i t abou t t h e p rocess t h a t t h e men had t o go through w h i l e they were i n t h e army, t a l k i n g t o t h e c h a p l a i n , t a l k i n g t o t h e h e a r i n g o f f i c e r , and then b e i n g denied by t h e Consc ien t ious Objec t ion Review Board, which w a s a n army board. There w a s q u i t e a b i t of disagreement among t h e d i f f e r e n t army personne l . I n some c a s e s , t h e c h a p l a i n and t h e h e a r i n g o f f i c e r s a i d , "Okay, y e s , t h i s man shou ld b e a C O Y " b u t t h e n t h e board came i n and decided t h e o t h e r way.

Z i r p o l i : W e l l , b a s i c a l l y , of course , I concluded t h a t they had n o t a p p l i e d p roper s t a n d a r d s . Once t h e man i n d i c a t e s t h a t t h i s w a s h i s b e l i e f , t h a t i n e f f e c t h e is k i n d of a t r u e c o n s c i e n t i o u s o b j e c t o r , h e d o e s n ' t have t o b e a p a c i f i s t , b u t he might s a y , " I ' m w i l l i n g i f we a r e invaded, and we ' re p laced i n jeopardy o u r s e l v e s , then whatever is necessa ry t o r e p e l t h e i n v a s i o n o r t h e jeopardy t h a t t h e i n d i v i d u a l is p u t i n i s p e r m i s s i b l e , b u t n o t a s an a c t i v e a c t on my p a r t . " I f e l t t h a t t h o s e were p roper o b j e c t i o n s . I a l s o concluded i n most i n s t a n c e s t h a t i n my view t h e m i l i t a r y boards had n o t a p p l i e d t h e p roper s t a n d a r d s .

I had a l i t t l e d i f f i c u l t y l a t e r . The head o f S e l e c t i v e Serv ice was c r i t i c a l o f my a c t i v i t y and t h a t o f Judge [Robert H . ] Peckham's, b u t they l a t e r s e n t a l e t t e r of apology.

Sharp: Whatwas t h a t a l l about?

r p o l i : The head of S e l e c t i v e Serv ice was s a y i n g t h a t we were b e i n g too l e n i e n t . Then they had t o send a l e t t e r of apology because , a f t e r a l l , t h e r e s p o n s i b i l i t y was ours , I mean they performed t h e i r r e s p o n s i b i l i t y and we performed o u r s . I f we a r e i n disagreement , t h a t ' s because t h e law permi t s a disagreement and permits t h e c o u r t t o be t h e u l t i m a t e d e c i d e r on a q u e s t i o n of t h a t n a t u r e .

A s I s a y , San Francisco g o t t o b e known a s a l e n i e n t p lace f o r t h o s e who wanted t o v i o l a t e t h e S e l e c t i v e Serv ice Act, p r i m a r i l y because o u r s e n t e n c e s were n o t a s s e v e r e a s they were e lsewhere i n t h e coun t ry .

I n a review of t h e h i s t o r y and development of t h e s e S e l e c t i v e Serv ice c a s e s , you can s t a r t w i t h t h e Jehovah's Witnesses . I n t h e beginning, t h e Jehovah's Witnesses were no t d i sposed t o perform work of n a t i o n a l importance i f they were g ran ted c o n s c i e n t i o u s o b j e c t o r s t a t u s . We worked t h a t o u t on t h e t h e o r y t h a t t h i s is work o f n a t i o n a l

Zirpol i : importance, it was, s o t o speak, a d i r e c t i o n from Caesar and you have t o do what Caesar says , and t h i s does no t impair your r e l i g i o u s b e l i e f s i n any way.

Eventually we worked these th ings ou t f o r t h e Jehovah's Witnesses i n t h i s d i s t r i c t . There was p a r t i c u l a r l y a lawyer from San Jose (whose name I don ' t r e c a l l ) who represented most of them, and then they appl ied t h i s test r e a l l y throughout t h e country f o r Jehovah's Witnesses.

Sharp : Now, t h e Jehovah's Witnesses, those cases , w e r e they p a r t of t h i s period o r e a r l i e r ?

Zi rpol i : Oh, yes , they were d e f i n i t e l y p a r t of t h i s per iod.

Sharp: So among t h e so-cal led CO cases t h e r e r e a l l y were a v a r i e t y of r e l i g i o u s b e l i e f s and moral b e l i e f s .

Z i rpo l i : Yes. Well, t h e Jehovah's Witnesses, t h e r e wasn't any ques t ion about t h e i r ob jec t ion because they were ob j ec t ing t o war i n any form.

Now, when you got t o t h e Cathol ics and t h e McFadden case then t h e problem becomes a l i t t l e d i f f e r e n t . The quest ion i s , can you say you a r e a conscient ious ob j ec to r only i f you a r e one who o b j e c t s t o war i n any form? Of course, I decided i n t h e McFadden case t h a t i f you were a Cathol ic , and the Cathol ics say t h a t i f you have a moral convic t ion t h a t i s an un jus t war, i t ' s your convic t ion t h a t dec ides , but i t ' s a l s o a convic t ion which, i f you make i t , coincided with t he teachings of t he Cathol ic church, and I quoted Pope John [XXIII] somewhere i n there .*

Of course, i t went up t o t he [U.S.] Supreme Court. Now, when i t went t o t h e Supreme Court t h e r e were two o the r cases somewhat s i m i l a r i n na ture .

Sharp : From t h e Northern D i s t r i c t o r from o the r d i s t r i c t s ?

Z i rpo l i : No, from o t h e r d i s t r i c t s , and t h e Supreme Court wrote an opinion i n , those two cases , G i l l e t t e and something e l s e [Negre]. They consol i - dated these two cases and wrote an opinion and J u s t i c e [William 0.1 Douglas d i ssen ted . When i t came t o t he appeal of my case , they j u s t s a i d , "Reversed upon the grounds s t a t e d i n these o the r two cases , " and J u s t i c e Douglas s a i d , "I aga in d i s s e n t a s I d i d i n t h e o t h e r two cases .

*U.S. v . James Franc is McFadden, 309 F. Supp. 502, 1970.

Z i r p o l i : I worked p r e t t y h a r d on t h a t c a s e . I thought I d i d a p r e t t y f a i r job [chuck les ] , b u t t h e Supreme Court d i d n o t a g r e e . I n o t h e r words, f o r them t h e t e s t was t h a t you had t o b e opposed t o a l l wars.

Sharp: A more blanket--

Z i r p o l i : Yes, you c o u l d n ' t d i s c r i m i n a t e a s t o which war you would suppor t o r would n o t suppor t . My argument was t h a t i t i s n ' t a q u e s t i o n of d i s c r i m i n a t i n g which you would s u p p o r t o r wouldn' t s u p p o r t f o r p e r s o n a l o r p o l i t i c a l p r e f e r e n c e s . It was because you were s a t i s f i e d w i t h t h e d i c t a t i o n o f God and your conscience t h a t t h i s was an immoral w a r . I f you a r e going a c r o s s t h e P a c i f i c t o engage i n , a war o f t h a t n a t u r e , t h e r e i s every j u s t i f i c a t i o n f o r a p e r s o n a l con- c l u s i o n t h a t t h i s i s n o t a moral ly j u s t war. I f i t is n o t moral ly j u s t and God s a y s I shou ld n o t p a r t i c i p a t e , I s h o u l d n ' t . But anyway, a s I say , I was r e v e r s e d on t h a t .

There were q u e s t i o n s o f r e c o g n i t i o n ; I mean t h i s is d e n i a l o f r e c o g n i t i o n o f C a t h o l i c t each ings i n my view. There fore , i t v i o l a t e d t h e es tab l i shment o f r e l i g i o n c l a u s e s . Denial of e q u a l p r o t e c t i o n was a n o t h e r o f t h e arguments I made. I n o t h e r words, I went through a l l of t h o s e i s s u e s and t r i e d t o r e s o l v e them.

Sharp: Since w e a r e on t h e McFadden [ c a s e ] , I have g o t a few o t h e r q u e s t i o n s about i t and t h e n we can go back a b i t t o t h e o t h e r . The U.S. v . McFadden i s cons idered one o f t h e s t r o n g e s t c a s e s f o r what i s c a l l e d t h e SCO, t h e s e l e c t i v e c o n s c i e n t i o u s o b j e c t o r . * It 's s t r o n g e s t because you a c t u a l l y dismissed t h e ind ic tment a g a i n s t him [James McFadden] i n a p r e t t y sweeping way. You mentioned t h a t you worked real hard on t h e case . I guess I would l i k e f o r you t o t e l l m e what you went through i n terms o f having thought about i t .

Z i r p o l i : J u s t about every r e l i g i o u s f a i t h f i l e d some k i n d o f b r i e f as a f r i e n d o f t h e c o u r t . So I was reviewing a l l o f t h e s e v a r i o u s t e a c h i n g s and t h e t each ings of t h e C a t h o l i c church, and having reviewed them a l l I had t o a l s o make t h e necessa ry c o n s t i t u t i o n a l a n a l y s i s a s i t p e r t a i n e d t o e q u a l p r o t e c t i o n and freedom o f r e l i g i o n and t h e v a r i o u s problems t h a t a r e invoked under t h o s e c i rcumstances .

*Readers i n t e r e s t e d i n t h i s c a s e and t h e i s s u e o f t h e SCO may want t o s e e John A. Rohr, Prophets Without Honor: P u b l i c Po l icy and t h e S e l e c t i v e Conscient ious Objec to r , Nashv i l l e : Abingdon P r e s s , 1971.

Sharp: You a l s o a r e a Cathol ic you r se l f , a r e n ' t you?

Z i rpo l i : Oh, I am a Cathol ic myself bu t I ' m l ike- - l ike t h e cases say, I don ' t go t o church very o f t e n , bu t t h e f a c t t h a t I go o r don ' t go t o church does no t mean t h a t I couldn ' t be a consc ien t ious ob j ec to r , j u s t giving you a quick i l l u s t r a t i o n . I was no t inf luenced by t h e f a c t t h a t I am a Cathol ic because I d idn ' t know enough about t h e Cathol ic teachings and r e l i g i o n . I had t o f i n d o u t about them, so it wasn't because I was one. It was a f t e r reading t h e var ious t r e a t i s e s t h a t were presented and the var ious b r i e f s of t h e f r i e n d s of t h e court-- I th ink we had b r i e f s from--have you seen t h e opinion?

Sharp: Well, yes , I have a c t u a l l y . It 's r i g h t here .

Z i rpo l i : Le t ' s g e t i t . I th ink t h e r e is an i n d i c a t i o n somewhere; t h e r e may be. [looks through opinion] Yes, [ reading] "Amicus c u r i a e b r i e f s were submitted by r ep re sen t a t i ve s of t h e fol lowing r e l i g i o n s : Jewish, Bap t i s t , Lutheran, Presbyter ian , Quaker, Disc ip les of C h r i s t , United Church of Chr i s t , Reformed Church i n America, and a l s o t h e In t e r - denominational National Council of Churches."

Sharp : That 's about a l l of them, i s n ' t i t ?

Z i rpo l i : [continues reading] "There a r e s t r o n g suggest ions i n t h e b r i e f s t h a t t he r o l e ascr ibed t o one ' s conscience by t h e var ious r e l i g i o n s a r e q u i t e s i m i l a r . There is a l s o some suggest ion t h a t r e l i g i o n s o t h e r than Catholicism a l s o d i s t i n g u i s h between wars."*

So, a s I say, t h i s was t he type of information t h a t was placed i n my hands. So I had t h e var ious documents of t h e church. Here i s t h e Pas to ra l Cons t i tu t ion of t h e Church i n t h e Modern World [from Vatican 11, 19671.

Sharp: Were you a b l e t o s epa ra t e how you thought about i t i n terms of theology and theologies a s opposed t o j u s t what your more in t imate personal f e e l i n g was about being a conscient ious ob jec tor?

Z i rpo l i : I was a b l e t o do t h a t because of Pope John 's s ta tement . He provided t h e bas i s f o r i t . I don ' t understand this--

Sharp : I don' t t h ink i t i s a l l t he re .

Z i rpo l i : No, i t i s n ' t .

*Both quotes a r e from U.S. v . McFadden 309 F. Supp. 504.

Sharp: T h a t ' s what I thought when I was r e a d i n g i t , t h a t i t wasn ' t a l l t h e r e .

Z i r p o l i : No, what i s i t , 310?

Sharp: No, 309 [F. Supp. 5021.

Z i r p o l i : L e t ' s see i f I can g e t it. [ looks f o r o p i n i o n ]

Sharp: Dotheyalwaysleaveoutsome?

Z i r p o l i : No, t h e y ' r e n o t supposed to . I was l o o k i n g f o r t h e r e f e r e n c e t o S t . Thomas Aquinas, b u t a l s o a r e f e r e n c e t o t h e pope. [ f u r t h e r pause t o go through o p i n i o n ]

Sharp : Oh, and t o Va t i can I I ?

Z i r p o l i : I thought I had i t i n t h e op in ion .

Sharp : There a r e r e f e r e n c e s t o Vat ican 11, t o t h e P a s t o r a l C o n s t i t u t i o n o f t h e Church i n t h e Modern World and t h e n t o Pacem i n T e r r i s [1963].

Z i r p o l i : That cou ld v e r y w e l l b e because t h e d a t e , 1963, would c o i n c i d e . I had some o t h e r r e f e r e n c e s , [Ch ie f ] J u s t i c e Har lan S tone among o t h e r s , b u t i n a l l events--[pause] As I s a i d , I based i t on f r e e e x e r c i s e o f r e l i g i o n and e q u a l p r o t e c t i o n , t h e b a s i c arguments, and e s t a b l i s h m e n t o f r e l i g i o n . Those were t h e t h r e e c o n s t i t u t i o n a l b a s e s f o r my a c t i o n and, t h e r e f o r e , I f e l t t h a t t h e s t a t u t e which r e q u i r e d i t t o cover a l l wars was u n c o n s t i t u t i o n a l .

Sharp : That is Section--

Z i r p o l i : [ S e c t i o n ] 6 ( j )--

Sharp : --Of t h e S e l e c t i v e S e r v i c e Act.

Z i r p o l i : Yes. I n o t h e r words, I concluded t h a t i t v i o l a t e s t h e e q u a l p r o t e c t i o n and due p rocess .

Sharp: Did you expec t t h a t t h e Supreme Court would r e v e r s e you?

Z i r p o l i : I r e a l l y d i d n ' t know. I thought I had--[laughs]

Sharp: You thought i t w a s p r e t t y t i g h t ?

Z i r p o l i : --And I thought i t was p r e t t y good, b u t then I was r e v e r s e d . A s I say , t h e o n l y one t o d i s s e n t w a s J u s t i c e Douglas.

Sharp: Was t h a t because h e was i n agreement w i t h you o r f o r some o t h e r r eason?

Z i r p o l i : He w a s b a s i c a l l y i n agreement, yes . Of course , h e d i s s e n t e d i n t h e o t h e r two c a s e s , b u t they were s a t i s f i e d t h a t t h e s t a t u t e w a s p roper . I j u s t f e l t t h a t , you know, i f you can f i n d i t uncons t i tu - t i o n a l t o s t o p t h e p r e s i d e n t i n s o f a r as i t r e l a t e s , f o r i n s t a n c e , t o something l i k e t h e s t e e l s t r i k e o r t h i n g s o f t h a t c h a r a c t e r , t h a t t h e r e is every j u s t i f i c a t i o n f o r concluding t h a t t h i s w a s uncons t i tu - - t i o n a l .

Sharp: What w a s t h e response t o t h i s c a s e and your d e c i s i o n i n t h i s c a s e o f t h e o t h e r judges h e r e a t t h e c o u r t ?

Z i r p o l i : My response?

Sharp : Thei r response t o you and t o your r u l i n g i n t h i s case?

Z i r p o l i : I don ' t know. No one o b j e c t e d , l e t ' s pu t i t t h a t way. I don ' t r e c a l l anyone f i n d i n g any o b j e c t i o n . They may have had them. I f they d i d , they j u s t d i d n ' t t e l l m e .

Sharp: Because t h i s is n o t j u s t your average, everyday c a s e .

Z i r p o l i : No.

Sharp: And i t seems t o m e a s though i t would have sparked--

Z i r p o l i : Well, i t sparked a l o t o f i n t e r e s t i n t h e C a t h o l i c world , no q u e s t i o n about t h a t , because t h e C a t h o l i c paper ( I ' v e f o r g o t t e n t h e name of i t ) , t h e C a t h o l i c Monitor o r whatever i t i s , publ ished t h e whole op in ion . Of course , t h e c l e r g y d i d comment, as you have found o u t a l r e a d y , t o t h e r u l i n g of t h e Supreme Court.*

Sharp: I guess I am i n t e r e s t e d , t o o , i n your f e e l i n g about be ing a s e l e c t i v e c o n s c i e n t i o u s o b j e c t o r , because i t is something very d i f f e r e n t , I t h i n k , from j u s t being a c o n s c i e n t i o u s o b j e c t o r .

Z i r p o l i : But t h e b a s i c q u e s t i o n was do you have t o b e a t r u e p a c i f i s t i n every s e n s e of t h e word. I s a i d , "No, you d o n ' t have t o be a t r u e p a c i f i s t a s l o n g a s i t is i n good conscience." I mean, i f i t ' s something t h a t is c o n t r i v e d , t h a t ' s one t h i n g ; t h e q u e s t i o n is , is t h i s a s i n c e r e b e l i e f ? I f i t ' s a s i n c e r e b e l i e f and i f t h a t ' s what you say God d i c t a t e s t o you and i t ' s a s i n c e r e b e l i e f , then I thought you q u a l i f i e d , even though i t was based upon your conc lus ion t h a t t h i s was an immoral war o r "un jus t war" as t h e C a t h o l i c church p u t s i t .

*See a r t i c l e on t h i s c a s e on fo l lowing page.

San Francisco Chronicle, Apri l 6 , 1971

. . . ,

~ h c U.S. ~ubrirne 20ut-t i ! A;lonsiinor Hollcran is past I

1

yesterday reversed. a . rill- . . ] president of the Prizsts' Sen-

. . . . 'inirnl 1 Supreme. Court decision, but {

he felt they had no alter . . . . native. . .

court h interpreting legislative intent of

gress." ivfonsignor Ilolhraa said. "1 really don't think

, Other c'lOice." ''l'lie rulil:g of Jrldge Zil-po-

. , ii. is ccrlainly in accord with , Catllolic t e a c h i ~ g both fro111

i 3 llloral atid a legal poilit of i view. -4s Caillolics, we be-

lieve that the only immcdizita. : guide for concrete decisioll. .. which the individuaIp.osse~s.- ; es is his conscience." . , ;.r ;!../ .- ---

ing by a San Francisco Federal j u d g e that the draft laws violate the re- ligious freedom of Catho- lies opposed !o the Viet- nam war.

'l'he' high court; acted a case involvhg James Fmn- cis McFadden, 26, of San F r a n C i s c 0. ~ c ~ ~ d d ~ refused to be inducted into tile ,",, disappointed in the

- .'...,,e#ee 4 o : atc, Rolxlan Catholic Arch- . r#a@$@ Banidup s g ~ &gtg~ . . j ciiocese of Sari Francisco; is

.: .-. . . . . .. . ., . . I ciirrenlly a professor at St.

\Vashillgtnn .. ' - 3 . . hei'm said UIC. total number road itself, he said.

I !Patrick's seminary. in Jlenlo

- ' Tlle Pentagon said yester- o'f Red Chinese in Laus runs Fricclheim said neither the 1 Park; and is director of the day that Communist China "s o In c w I1 a t ovcr 14,000." road nor tllc roadbuilders are j Vallon~brosa Center in 3Ienlo has sent about 3000 more : Most of , t l ~ c l~:liltlup ippcnrs srrbject to. attack from U.S. I Park, a Catholic retreat and troops into Northern Laos during the past two lnol~ths a r m e d with anti-alcraft guns and radar. across Laos toward the Thai where U.S. air strikes are di-

d e s i g 11 e d to protect.road- building crews v;'urkiug ol? a rn a j o r route frola Cllina

aiicraft. They ard far' i~oorth I conference center. of the Ho Chi Minh trail area ! , ~lonsigllor Elollel.an 1 d LI .the Laotianp a n h a n d 1 e / the Chlnlcle tllat

Sharp: You had some suppor t f o r your d e c i s i o n because o f a n e a r l i e r d e c i s i o n t h a t Judge [S tan ley] Weigel had made i n [December] '69 i n t h e E. v . Bowen c a s e where h e had d e c l a r e d t h e same S e c t i o n 6 ( j ) t o b e u n c o n s t i t u t i o n a l .

Z i r p o l i : I t h i n k I c i t e him--

Sharp: You d i d , y e s . I ' m n o t s u r e which page i t ' s on, b u t you d i d . Were t h e r e o t h e r SCO c a s e s t h a t you had? I d i d n ' t f i n d any of them.

Z i r p o l i : No, I had no o t h e r s because t h e o t h e r s , most o f them, were Jehovah 's Witnes'ses c a s e s .

Sharp: Right, and they were more c lea r -cu t because of t h e e s t a b l i s h e d r e l i g i o u s p r a c t i c e s and t h e o r i e s .


Sharp: Do you t h i n k t h a t you would have been a c o n s c i e n t i o u s o b j e c t o r ?

Z i r p o l i : No, I would n o t .

Sharp: Do you t h i n k you would have been a s e l e c t i v e c o n s c i e n t i o u s o b j e c t o r ?

Z i r p o l i : No, I d o n ' t t h i n k s o . There i s one reason f o r t h a t ; one of them is t h a t my r e l i g i o u s b e l i e f s are n o t t h a t s t r o n g when you g e t r i g h t down t o i t .

Sharp: Is i t hard a t a l l t o unders tand t h a t some peop les ' b e l i e f s a r e t h a t s t r o n g , t h a t James McFadden could--

Z i r p o l i : No, i t wasn ' t h a r d t o unders tand a t t h a t t i m e because you had enough preceden t . You c e r t a i n l y had t h e Jehovah 's Witnesses , number one. Number two, you had a number o f c o n s c i e n t i o u s o b j e c t o r s who would r e f u s e t o a c c e p t a l t e r n a t i v e work of n a t i o n a l importance and who went t o j a i l .

Tha t ' s t h e i r o n y of t h e whole t h i n g , t h a t t h e f e l l o w who wouldn' t budge a n inch , who wouldn' t do any th ing c o n d i t i o n a l , whose c o n v i c t i o n s were s o s t r o n g , he probably had g r e a t e r j u s t i f i c a t i o n a s an o b j e c t o r than anyone e l s e , and h e ' s t h e one t h a t went t o j a i l every t ime. I went down i n t o t h e marshal ' s o f f i c e and t a l k e d t o one of t h e s e f e l l o w s . I was convinced t h a t h i s b e l i e f s were a b s o l u t e l y s i n c e r e , bu t h e wouldn' t accep t a l t e r n a t i v e s e r v i c e . So he ended up w i t h a sen tence o f two y e a r s i n j a i l . Somebody e l s e a c c e p t s a l t e r n a t i v e s e r v i c e and may n o t b e a s s i n c e r e , c e r t a i n l y a s t h e man I have j u s t mentioned, and he would be given p roba t ion .

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

I know. I was astounded a t t h e numbers of consc ien t ious o b j e c t o r cases and d r a f t r e s i s t e r c a se s t h a t came through t h e Northern D i s t r i c t i n t h i s per iod , '68 through '71. It must have c r ea t ed a dilemma f o r t h e c o u r t , t h e mass number of cases and. j u s t d e a l i n g w i th t h e i s s u e of t h e war and people say ing , " I ' m j u s t no t going to--"

No. I mean, t h e volume was t he r e , bu t f o r t h e most p a r t t he se w e r e a l l c a se s t h a t wouldn't t ake more than a day o r two of r e sea rch on t h e p a r t o f t h e c o u r t . I mean, w e go t cases where you r e a l l y have t o spend weeks and months on them. I f you s t a r t comparing them a s t o complexity and magnitude, you could almost say they became run- of-the-mill cases .

Y e t t h e r e i s something ve ry s p e c i a l about them t o w r i t e a n opinion i n which you t a l k about t h e s o u l , God, people 's concept ions of God, and people 's concept ions of war. It i s somehow q u a l i t a t i v e l y d i f f e r e n t than t a l k i n g about a n t i t r u s t o r bankruptcy.

You do t h a t because Congress d i d i t . I f Congress had n o t c r ea t ed a consc ien t ious o b j e c t o r c l a s s , had no t c r e a t e d i t a t a l l , I don ' t know. The Congress c r ea t ed t h e except ion, which is t h e consc ien t ious o b j e c t o r . L e t ' s assume t h a t Congress had n o t c r ea t ed an exempt c l a s s . You'd have an e n t i r e l y d i f f e r e n t b a l l game. But having c r e a t e d t h e exempt c l a s s , then you look a t i t t o see what i s a consc ien t ious o b j e c t o r . And I . c a n V t use my s t anda rds . I have t o use t h e r e l i g i o u s s tandards of t h e p a r t i e s involved and I have t o determine whether o r no t t h e s e a r e s i n c e r e . That ' s some of t h e d i s cus s ion t h a t I went i n t o i n t hose cases where a s o l d i e r sought d i scharge a s a consc ien t ious o b j e c t o r . Whether t h e r e was a d i f f e r e n c e i n view depending on whether i t was t h e padre o r t h e c a p t a i n o r some o t h e r o f f i c e r who made t h e s e par t i cu- l a r f i nd ings and a s t o t h e competence of t h e person who was making t h e f i nd ing .

You allowed i n t he se o t h e r cases a b roader d e f i n i t i o n of r e l i g i o u s b e l i e f s and commitment than t h e people i n t h e army d id . Another word f o r t h a t is more l i b e r a l , I guess.

That ' s r i g h t .

You have a r e f e r ence i n Browning t o "un iversa l moral law" and t h a t t h a t ' s okay.

Yes, I have a foo tno t e on t h a t , do I no t , i n Browning? [pauses t o go through op in ion] But t h a t conclusion, I t h ink , i s supported by a previous dec i s ion , t h a t what i s morally good i s t r a d i t i o n a l l y a r e l i g i o u s ques t i on and I c i t e t h e Seeger case .*

*U.S. v . Seeger, 380 U.S. 163 (1965)

Sharp: Right, and t h e Seeger case is p r e t t y c e n t r a l t o s e t t i n g a precedent f o r t h i s broader r e l i g i o u s b e l i e f .

Z i rpol i : That 's r i g h t . I th ink i n those two cases I r e f e r r e d t o t he Seeger case.

Sharp : I think so , too, yes , which i s q u i t e a b i t e a r l i e r being '65.

Z i rpol i : That was a Supreme Court case.

Sharp: Right.

Z i rpo l i : Again here , the t e n e t s he ld by t h e appl icant can be nonorthodox r e l i g i o u s be l i e f and aga in I c i t e Seeger.

Sharp: So i t is p r e t t y important i n t hese kinds of s p e c i a l cases t o use precedents from o the r cour t s , e spec i a l ly t h e Supreme Court.

Z i rpo l i : Well, I am bound by the Supreme Court unless t he re a r e except ional circumstances t h a t make you f e e l t h a t i f t he Supreme Court were t o reconsider t h e problem i n t h e l i g h t of t h e passage of time o r change of circumstance, they would reach another conclusion. Then you can gamble on i t and hope t h a t your case w i l l go up t o the Supreme Court and t h a t t he Supreme Court w i l l agree . Of course, t h a t does happen on r a r e occasions.

Sharp: The o the r p a r t of t hese cases t h a t I th ink we need t o t a l k about e spec i a l ly i n Mi l l e r and Goodwin is what you r e f e r t o a s a "crys ta l - l i z a t i o n " of t he app l i can t s ' b e l i e f s .

Z i rpo l i : That 's r i g h t , bu t t h e " c r y s t a l l i z a t i o n " can a r i s e a t any time i n h i s l i f e a s a r e s u l t of h i s experience and what he sees and what he l ea rns ; convict ions a r e formed based on experience and th ings t h a t you l ea rn .

Sharp: It seems l i k e t h a t would be s o r t of d i f f i c u l t t o p in down; a t l e a s t , t he army s u r e couldn ' t do i t o r they did not accept t h a t t h i s person could th ink through something and go from, over a long s t r e t c h of time to--

Z i rpo l i : But I think I t r i e d t o j u s t i f y i t by showing the h i s to ry of t he person and h i s r eac t ions , and how b e l i e f s o r convict ions were formed, and when they were formed, and what helped him form them, including conversations wi th ind iv idua ls o r l e t t e r s received from family members o r something of t h a t na ture .

Sharp: Were the re ever cases where you weren't convinced t h a t t h e person was s ince re?

Z i r p o l i : Very f r a n k l y , I d o n ' t remember. I f t h e r e were, t h e r e would b e no p a r t i c u l a r need f o r m e t o w r i t e a n opinion. As I s a y , most o f them, when you g e t r i g h t down t o i t , were Jehovah 's Witnesses , s o on some of them I d i d n ' t w r i t e a n opinion. Y e s , t h e r e were one o r two. I t h i n k I remember one o f them, a f e l l o w ( I d o n ' t know i f I can remember h i s name), h e marr ied Joan Baez.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

David H a r r i s ?

Y e s , a l though I t h i n k u l t i m a t e l y h e was sentenced by Judge Carter. I ' m n o t s u r e abou t t h a t , b u t h e i s a n example of one who r e s i s t e d . Now, whether h e r a i s e d t r u l y r e l i g i o u s r e a s o n s I d o n ' t r e c a l l , b u t h e g o t a sen tence . H e g o t a heavy sen tence .

That was through h i s d r a f t r e s i s t a n c e as opposed t o h i s c o n s c i e n t i o u s o b j e c t o r [ s t a t u s ] .

Y e s .

I a m j u s t t r y i n g t o p i e c e t o g e t h e r how you might have decided t h a t somebody wasn ' t s i n c e r e i n h i s c o n s c i e n t i o u s o b j e c t o r f e e l i n g s .

You would have t o l o o k a t t h e h i s t o r y o f h i s conduct and h i s l i f e h i s t o r y . I f h i s l i f e h i s t o r y showed no r e l i g i o u s t r a i n i n g of any k i n d and no a f f i l i a t i o n w i t h any i n d i v i d u a l o r d i s c u s s i o n of r e l i g i o n , and i f r e l i g i o n came up f o r t h e f i r s t t i m e i n t h e d r a f t , and i t appeared t o you t h a t t h e r e is no b a s i s f o r i t , and t h a t h e is n o t s i n c e r e , t h e n you make t h a t conc lus ion .

You may b e wrong a t t i m e s because t h a t i s where judgment comes i n , and i f you make a mis take, you make a mis take . But t h e respons i - b i l i t y then is p laced o n you. I f t h e r e i s a reasonab le b a s i s f o r your conc lus ion , you are n o t going t o b e r e v e r s e d by t h e c o u r t of a p p e a l s because t h e y are n o t going t o s u b s t i t u t e t h e i r judgment f o r yours .

ff

[You must c o n s i d e r t h e ] impact, i f t h e s e people were n o t g r a n t e d c o n s c i e n t i o u s o b j e c t o r s t a t u s they would t u r n o u t t o b e poor s o l d i e r s anyway. Even t h e army d i d n ' t l i k e t o g e t people i n t h a t ca tegory w i t h i n t h e army because they weren ' t going t o prove t o b e p r o p e r army men.

It is s o r t o f a morale t h i n g , t o o .

It does a l o t o f harm, more harm than good.

I have a few more q u e s t i o n s and t h e n we can g e t on t o t h e o t h e r ones .

Z i r p o l i : Then I a l s o made a n a n a l y s i s of t h e c o n s c i e n t i o u s o b j e c t o r c l a s s a s opposed t o t h o s e who were i n t h e u n i v e r s i t y and were be ing exempt. When you s t a r t making an a n a l y s i s of i t , t h e i n j u s t i c e and i n e q u i t y of t h e s i t u a t i o n , i t would s t r i k e m e t h a t somebody w i t h r e l i g i o u s b e l i e f is c e r t a i n l y t o b e [more] p r e f e r r e d a s a c o n s c i e n t i o u s o b j e c t o r than somebody who decided t o s t a y i n c o l l e g e . Maybe h e g radua tes and d e c i d e s t o move i n t o law o r i n t o medicine s o h e can g e t t h r e e more y e a r s o f c o l l e g e and escape t h e d r a f t . You can r e s t a s s u r e d t h a t t h e r e were a number o f people who d i d j u s t t h a t .

Sharp : Oh, I ' m s u r e . I t h i n k I know some! [ l a u g h t e r ]

Z i r p o l i : It could be!

Sharp : There wasn ' t t o o much mention o f t h e war i t s e l f i n most of t h e s e c a s e s . I n Browning, you s a y t h a t t h e war w a s a t r i g g e r i n g agent f o r t h e p e t i t i o n e r ' s r e j e c t i o n o f p a r t i c i p a t i o n i n any war. I wondered i f t h e r e was somewhat of a conscious e f f o r t t o s t a y away from t h e war i t s e l f and s t a y more toward d e a l i n g e x p l i c i t l y w i t h t h e habeas corpus i s s u e s ?

Z i r p o l i : No, w e d i d n ' t t r y t o g e t i n t o t h e war. It w a s j u s t a q u e s t i o n of whether they q u a l i f i e d o r d i d n ' t q u a l i f y . I ' v e t r i e d a number of c a s e s i n which somebody would g e t up and make a n argument abou t t h e war, and I would i n s t r u c t t h e j u r y t h a t they are n o t t o c o n s i d e r t h e war o r peop le ' s p o l i t i c a l arguments abou t t h e war. They would want t o even make - t h e arguments t o t h e j u r y .

I had t h e one s i t u a t i o n i n which t h e defendant e l e c t e d t o r e p r e s e n t h imse l f (I 'm n o t s u r e whether I mentioned i t ) , a S e l e c t i v e S e r v i c e c a s e , and I t o l d him h e shou ld have counse l . He d i d n ' t want counsel and I i n s t r u c t e d him a s t o a l l of t h e a p p l i c a b l e r u l e s . Then when t h e t ime came f o r him t o argue, h e argued. When t h e t i m e came f o r m e t o i n s t r u c t , I had t o i n s t r u c t t h e j u r y t o d i s r e g a r d h i s arguments abou t t h e war. The peop le i n t h e courtroom g o t up and o b j e c t e d and I had t o c l e a r t h e courtroom.

What happened was t h e f i r s t f e l l o w g o t up and o b j e c t e d and I had him come forward and asked him h i s name. H e t o l d m e and I p u t him i n t o custody o f t h e U.S. marshal . Then a n o t h e r f e l l o w g o t up and I p u t him i n t h e custody of t h e marshal . Then I s a i d , "I am o r d e r i n g t h e courtroom c l e a r e d o f everyone except t h e lawyers , t h e p a r t i e s , and t h e p r e s s . " Some l a d y g o t up and s t a r t e d t o o b j e c t and I s a i d , "There i s n ' t any th ing you can t e l l m e about t h i s war and your o b j e c t i o n s t h a t I haven ' t a l r e a d y heard from my daughters ." So I s a i d , "You a r e excluded from t h e courtroom." A f t e r t h e t r i a l was over and t h e j u r y r e t u r n e d t h e v e r d i c t , I then l e t t h e s e two peop le go t h a t I p u t i n t h e custody of t h e marshal.

Z i r p o l i : But t h o s e a r e t h i n g s t h a t you e x p e c t . I had a n I n d i a n o b j e c t , t h e whole I n d i a n t r i b e tromped i n and o u t o f t h e courtroom.

Sharp: What c a s e was t h i s ?

Z i r p o l i : I d o n ' t remember t h e name o f t h e c a s e , b u t i t was a n American Ind ian .

Then I had a n o t h e r c a s e where a f t e r t h e defendant and h i s f r i e n d s l e f t my courtroom, they a l l ga thered t o g e t h e r and walked down t h e c o r r i d o r and o u t t h e b u i l d i n g shou t ing , "Hell , no, we won't go - I I

I had a n o t h e r one i n which I w a s s e a t e d on t h e bench and a l l o f t h e f lower c h i l d r e n came i n . They a l l had f lowers . There were some f lowers on my desk and a l i t t l e g i r l came up, a t h r e e o r four-year- o l d , n o t more t h a n t h a t , and p resen ted m e w i t h a bouquet o f f lowers . I t o l d you about t h a t .

Sharp : I have heard abou t t h a t .

Tempers o f t h e Changing Times

Z i r p o l i : Yes, w e l l , t h e s e were a l l i n c i d e n t s t h a t i n d i c a t e t h e temper of t h e t imes and t h e r e a c t i o n s o f people .

Sharp: When I w a s going through t h e Chronic le look ing f o r some in format ion about t h e d r a f t and your r o l e i n some of t h e c a s e s , I c o u l d n ' t h e l p b u t s e e s o r t o f i n a t i m e warp a l l o f t h e p r o t e s t s t h a t were going on. At t h e same t i m e you were r e a d i n g about some horrendous s i t u a t i o n s i n Vietnam i t s e l f w i t h some o f t h e [ c i v i l i a n ] massacres t h a t unfor- t u n a t e l y occur red , t h e i n v a s i o n o f Cambodia ( t h a t was i n 1970) , and t h e Senate 's condemnation o f t h e p r e s i d e n t [Richard Nixon] .

Z i r p o l i : Y e s . Sharp: You saw a l l o f t h o s e t h i n g s , t o o , and you had a l l o f t h e s e people

even c l o s e r t o you i n t h e courtroom. How do you f i l t e r o u t a l l of t h a t and g e t y o u r s e l f back t o c o n s i d e r i n g t h e i s s u e s t h a t are i n t h e c a s e s ?

Z i r p o l i : You j u s t f o l l o w t h e r u l e s : This is t h e charge, t h i s is t h e o f f e n s e , t h e r e a r e t h e accepted i n s t r u c t i o n s , and you j u s t f o l l o w them, you j u s t f o l l o w them. It's on ly when you g e t t o a p o s i t i o n , l e t ' s s a y , as t o determine whether a person i s o r i s n o t a t r u e c o n s c i e n t i o u s o b j e c t o r and you have g o t a l l o f t h i s background, then you u s e t h a t background. Based upon t h e conc lus ions t h a t I reached i n McFadden, conc lus ions o f t h a t type , I make t h a t d e c i s i o n .

Z i r p o l i : No, I have p r a c t i c e d l aw f o r a long t ime and by t h a t t i m e I had p r a c t i c e d law f o r over t h i r t y - f i v e o r f o r t y y e a r s , depending upon which y e a r t h a t came up. When you have t h a t much p r a c t i c e behind you and most o f i t i n t h e f e d e r a l c o u r t , you know what t h e r u l e s a r e , you know what t h e r u l e s o f evidence a r e , and you j u s t p lay i t accord- i n g t o t h e r u l e s .

Sharp: Were t h e s e cases somewhat e a s i e r f o r you then because you had had t h a t much exper ience?

Z i r p o l i : I had a l s o prosecuted S e l e c t i v e S e r v i c e c a s e s i n World War 11. That was one o f my assignments i n World War 11. Judges were a l o t tougher then, too. They gave f ive-year sen tences .

But you have t o remember, World War I1 was a ve ry popular war. Everybody wanted t o g e t i n t o t h e army. It wasn ' t j u s t a q u e s t i o n of t r y i n g t o s t a y o u t . It was a q u e s t i o n of how can I g e t i n , p a r t i c u - l a r l y i f you were a c o l l e g e g radua te o r a c o l l e g e s t u d e n t . It wouldn' t b e l o n g b e f o r e you would end up w i t h a c o d s s i o n o r you would t r y t o g e t a commission. So t h e atmosphere was e n t i r e l y d i f f e r e n t . That would b e c l a s s i f i e d a s a j u s t war, l e t ' s s a y , by way of i l l u s t r a t i o n whereas Vietnam would be c l a s s i f i e d , as a t l e a s t some of t h e C a t h o l i c s d i d , a s an u n j u s t war.

Sharp: How d i f f e r e n t were t h e CO c a s e s i n World War I1 t h a t you worked on? You s a i d t h e judges were h a r s h e r , f o r example.

Z i r p o l i : The sen tences were tougher .

Sharp : Like what, f o r example?

Z i r p o l i : Five-year sen tences were no t uncommon and a two-year s e n t e n c e would b e about a t o p s e n t e n c e i n t h e Vietnam war. So t h e s e n t e n c i n g was d i f f e r e n t .

Sharp: From what I had read , t h e a t t o r n e y s , t h e de fense a t t o r n e y s f o r t h e CO c a s e s i n World War 11, t h a t w a s q u i t e a b i t t o o i n t h e s e n s e you had more Jehovah 's Witnesses , I suppose, then . During t h e Vietnam per iod , t h e r e was a much broader range o f r e l i g i o u s b e l i e f t h a t was cons idered .

Z i r p o l i : Oh, y e s , d e f i n i t e l y .

Sharp: Iwonderedwhatsortofcommentsyouwouldmakeaboutthelawyer's side--the defense lawyer 's--side of i t , and t h e comparison between t h e wars, and how t h e CO c a s e s were p resen ted and t h e people defended?

Z i r p o l i : I d o n ' t know t h a t t h e r e was any t r u l y g r e a t d i f f e r e n c e .

Sharp: A l o t o f people have s a i d t h a t i t i s s i g n i f i c a n t l y d i f f e r e n t dur ing t h e Vietnam war.

The representa t ion? Z i rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

The rep resen ta t ion i n t h e sense of t he lawyers, and we might g e t i n t o t h i s with t h e d r a f t cases.

Well, t h e representa t ion i n t h e sense of t he lawyers is tha t you d i d n ' t have t o be a s t r i c t l y Jehovah's Witness lawyer i n t h e Vietnam war. The lawyers i n the Second World War were very l imi t ed i n number and they had a d e f i n i t e t i e t o t h e p a r t i c u l a r group. These lawyers f o r t h e most p a r t had no p a r t i c u l a r t i e . They weren't doing i t themselves f o r r e l i g i o u s reasons and sometimes not even f o r p o l i t i c a l reasons. It was e i t h e r because they were r e t a ined o r were appointed.

A few o the r quest ions about these four cases , t h e Conscientious Objector Review Board, which was the army board, did they general ly deny these p e t i t i o n s , do you know?

I have noway of t e l l i n g because a l l I got were t h e ones t h a t somebody ra i sed the quest ion on. Those t h a t were denied and t h a t no one r a i s e d the quest ion on, I haven't any idea . So i f I were t o determine the number t h a t ended up i n cour t a s contrasted t o t h e number of a c t u a l denia ls , I would have no way of knowing.

From what I had ta lked about with Judge [Albert C.] Wollenberg [Sr.] and some of the o the r th ings t h a t I found out , there was t h i s l a r g e number of cases of CO and d r a f t evasion cases. I guess I ' d l i k e t o push you a l i t t l e b i t f u r t h e r t o t e l l me how these cases might have been an occasion f o r comment among yourselves.

Among t h e judges ?

Yes.

There was no p a r t i c u l a r occasion f o r comment. A t t h a t time the probation o f f i c e r prepared r epor t s showing t h e sentences of a l l judges i n which we could see what t h e o t h e r judges were doing and, a s I say, I don' t know of anyone who gave a five-year sentence, f o r ins tance . Maybe they did; I don' t know of anyone who d id . I th ink the s tandard sentence was about two years and I th ink most of t he judges applied i t .

But I wondered i f you remember s i t t i n g around and t a lk ing about i t with t h e o the r judges and how you f e l t about i t ?

I am s u r e we d id , but I c a n ' t pinpoint an a c t u a l conversation i n my mind because we would meet f o r lunch every day, so we'd t a l k i t over. For purposes of sentencing, judges o f t en consul t with one another, not t h a t they a r e bound by what t he o the r judge says o r anything, but they want t o get a reac t ion , "What do you think given these circumstances?' '

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

I n f a c t , t h e r e a r e some c o u r t s t h a t have a r e g u l a r committee t o do j u s t t h a t . The judge meets w i t h two o t h e r judges and d i s c u s s e s and p r e s e n t s a l l o f t h e f a c t s t o them and seeks t h e i r comments and recommendations. H e i s n o t bound by them. But w e d o n ' t do t h a t h e r e . On rare occas ions i t is done, however.

Does t h a t seem l i k e a good i d e a , t o have t h a t i n a common fash ion?

It 's a good i d e a when you've g o t c a s e s t h a t r e q u i r e t h a t type of c o n s i d e r a t i o n and i n t e r p r e t a t i o n . But l e t ' s s a y t h e r u n o f t h e m i l l c a s e , t h e r e is no need f o r i t . I mean i f you have g o t somebody who h a s embezzled $200 o r $300 from a bank and you are going t o g i v e him proba t ion , y o u ' r e n o t going t o go around and g e t t h e views of a n o t h e r judge. I f somebody is coming up f o r a s e n t e n c e t h a t i s going t o b e s u b s t a n t i a l , f o r t e n o r f i f t e e n y e a r s , you might want t h e views of ano ther judge. You might want t h e v i e w s o f a n o t h e r judge i f you have a c a s e o f t h e type o f , l e t f s say, P a t t y Hearst j u s t t o u s e a n i l l u s t r a - t i o n o f a type o f c a s e . Where you are c o n s i d e r i n g p u b l i c r e a c t i o n as w e l l a n d ' t h i n g s o f t h a t c h a r a c t e r , then a s t h e s e n t e n c i n g judge you might want t o g e t t h e views o f o t h e r judges.

Was t h e McFadden l i k e t h a t f o r you?

No! [ l a u g h t e r ] No, i t wasn ' t . No, I d i d n ' t c o n s u l t w i t h anyone on t h a t . I went ahead o n my own.

Did you want t o and n o t , o r you j u s t d i d n ' t t h i n k i t w a s necessa ry?

No, I d i d n ' t b o t h e r . I w a s younger then , a l i t t l e more o f an a c t i v i s t probably than I am now. T h a t ' s a n e r a when I would b e desc r ibed a s a n a c t i v i s t judge, I guess .

The c o u r t o f t h e Northern D i s t r i c t go t t h i s p r e t t y i n c r e d i b l e r e p u t a t i o n , and you have a l r e a d y mentioned i t and Judge Wollenberg mentioned i t t o o , f o r be ing a n "easy" c o u r t . Did t h a t b o t h e r you a t t h e t ime, o r you thought i t was g r e a t , o r you d i d n ' t c a r e ?

No, t h a t d i d n ' t b o t h e r me s o much--certainly, from a p o i n t of view of conscience. There h a s been a change i n a t t i t u d e s f o r crime and punishment i n t h e l a s t t e n y e a r s , l e t ' s s a y , a t l e a s t , b u t t h e a t t i t u d e t h e n and c e r t a i n l y o f o u r c o u r t and my a t t i t u d e was t h a t you s h o u l d n ' t send t h i s man t o j a i l u n l e s s you had t r u l y aggrava t ing c i rcumstances o r a crime o f v i o l e n c e . You had a k i n d o f a b e l i e f i n r e h a b i l i t a t i o n . You had a f a i t h i n t h e e f f e c t i v e n e s s o f t h e p r o b a t i o n system, and I s t i l l have a c e r t a i n f a i t h i n t h e e f f e c t i v e n e s s of t h e p r o b a t i o n system. You had t h e r e a l i z a t i o n t h a t i f you were going t o make t h e p r o b a t i o n system r e a l l y work, you had t o t a k e chances because i s you pu t f i v e peop le o n p r o b a t i o n and they a l l made good, t h a t means you a r e u n d e r - u t i l i z i n g t h e p r o b a t i o n system. I f you p u t t e n on

Zirpol i : probat ion and maybe you l o s e one o r two, a t l e a s t t ha t i s a b e t t e r i nd ica t ion t h a t you a r e making e f f e c t i v e use of i t .

Many pr i son a u t h o r i t i e s l i k e [James] Bennett, t h e former d i r e c t o r of t h e Bureau of Prisons of t h e United S ta t e s , always f e l t t h a t t h e r e was no bene f i t derived a t a l l i f t h e sentence was i n excess of f i v e years . The only bas i c bene f i t derived is t h a t you kept t h e man i n custody f o r a longer period and, t he re fo re , he ceased t o be a t h r e a t t o soc ie ty . But f o r r e h a b i l i t a t i o n purposes, he f e l t t h a t no va lue could be derived from a sentence i n excess of f i v e years . That was s o r t of t h e thinking of t h e time. And then t h e p e r s o n a l i t i e s involved. I t ' s hard t o compare d i s t r i c t s . When you get i n t o a b i g metropoli tan d i s t r i c t , you ge t i n t o a d i s t r i c t i n which you have t h e various judges and the re a r e some exchanges of views, and you end up with a l i t t l e more even-handed app l i ca t ion of t he sentencing process.

I f you ge t i n t o some d i s t r i c t t h a t is, l e t ' s say, t h e mid-South o r something, without naming them ( I could name people), you see a s i t u a t i o n where t h e judge gives a sentence and i t would be inc red ib le i n San Francisco.

Sharp: Do you mean harsh, overly harsh?

Z i rpo l i : Yes, oh, yes. Now, I had an experience a s a t r i a l lawyer i n which I represented a Chinese gentleman charged with t h e importing of herbs from Communist China, by way of i l l u s t r a t i o n . He was indic ted i n Tennessee. So I went down t o Tennessee. I was going to plead him not g u i l t y and I f e l t I could win t h e case. Well, I sat i n the courtroom and when I saw what was happening the re i n Tennessee, I came back and agreed t o plead my man i n San Francisco i f the United S t a t e s a t torney the re and here would accept . The U.S. a t torney i n Tennessee s a i d yes i f my man would be a witness i n Tennessee, and I s a i d he would.

To make a long s t o r y s h o r t , my man pleaded here and got a $1000 f i n e and s i x months probation. Two o the r Chinese went t o t r i a l i n Tennessee, one from New York and one from Tennessee. They were convicted and given f i v e years . Now, t h a t ' s a tremendous d i s p a r i t y , but t h i s judge i n Tannessee, what experience d id he have with Chinese? P r a c t i c a l l y none. And Communists--Communism must have meant something very s e r i o u s t o him. Importing from a Communist country i n v i o l a t i o n of t h e law--you know, a s e r i o u s crime. And i t was Communist China we were t a l k i n g about, too ! [ laughter ]

Sharp: On top of i t a l l !

The I s sue of Draf t Resis tance

Sharp: I thought w e might t a l k some about these d r a f t cases then and t h e d r a f t i n general . There i s t h i s March '68 mass t r i a l of a hundred defendants with a hundred a t t o rneys who pooled t h e i r arguments, I suppose.


Sharp: H o w d i d a l l o f t h a t c o m e a b o u t , t h a t y o u w o u l d h a v e t h e p a n e l a l l pu t toge ther l i k e t h a t ?

Z i rpo l i : I t r i e d t o remember t h a t and I don ' t remember how t h a t came about . There is an a r t i c l e he re on i t , i s n ' t there?*

Sharp: It doesn ' t g ive very much on t h a t . I guess I was th ink ing a l i t t l e b i t about t h e a n t i t r u s t cases and how they w e r e pooled, a t l e a s t some of them, because t h e r e were s o many defendants. It was put t oge the r t o be e a s i e r f o r t h e judge, I suppose.

Z i rpo l i : Aubrey Grossman was t h e l eade r , bu t I ru led aga ins t him, a s I r e c a l l .

Sharp: The only mention I found about how t h i s a l l turned ou t was t h a t you hap dismissed some of t h e arguments l i k e t h a t t h e Vietnam war was a v i o l a t i o n of i n t e r n a t i o n a l law?

Z i rpo l i : Oh, yes, t h a t was one of t h e s tock arguments, n o t on ly he re bu t even i n t h e jury t r i a l s .

Sharp: Apparently, you t r i e d t o narrow i t down t o some of t h e more important matters l i k e t h e c o n s t i t u t i o n a l i t y of t h e d r a f t board r egu la t i ons themselves and t h e consc ien t ious ob j ec t ions t o t h e d r a f t ? I wondered i f you j u s t r e c a l l how t h i s a l l proceeded and how i t a l l ended up?

Zi rpol i : My r e c o l l e c t i o n i s I ru led aga ins t them. The only ques t ion t h a t became important was t h e ques t ion of t h e s t r u c t u r e and make-up of t h e d r a f t boards. I ru l ed a g a i n s t those who were ob jec t ing t o t h e s t r u c t u r e of t h e d r a f t boards f o r t he most p a r t , bu t t h e r e may have been one o r two in s t ances , and I don ' t r e c a l l them now, where t h e d r a f t board was improperly c o n s t i t u t e d , but I don ' t remember t he d e t a i l s of t h a t .

Sharp: Because you had to d e a l wi th s o many of these cases , t h e CO cases and t h e d r a f t cases , I am wondering what s o r t of e f f e c t i t had on you persona l ly .

*See fol lowing page.

. Ry l?illinnt Coong

The most concerted at- tcck in Ilistoiy on Ule Se- lcclive Scl-vice System was l:tunc.:~ed in Federal Coilrt here yasterday.. .

r!:edwa~. ~ u d g e , ~ l f o n s d ~ - -c!i,.,: already ' ilooaed Zith Giitkn legal a!gurncnts, allowed attorneys one .liour of oral argument yeskrday and said he would give them another two hours this after- uoon.

A t stake is the fate of at lcast 100 gnttths who have refused to be inducted into tIlo Armed Services. A panel of some 100 a t t o r n e y s hove ngreed to defend them, and Iiave pooled UI& argrrments to present en niasse instead oE individually as eaclt trial conlcs up.

Yesterday three of tile de- / fense points wcre ai-g~led; I that youtli morally and con- ~scicntiously opposed to war in general or tila Vietnam war in particular should not be drafted, that a yorlth is d e 11 i e d his Constitutional rigM$ when he C:UI not have ail attormy re13resent him hefore a draft; hoard, alid tltat the rnakeop of draft boards js discl-iminalory . in .

San Francisco Chronicle, March 2 8 , 1968

tnat-minorities are ixcluded..'~ Tllc point about tl14 draft Bi~t throughout tho argu-

ments, Jndge Zirpoli repeat- edly interrupted wit11 oppos- Ing argrlmcnts and several, tinles said, "These p 0 i n t s may be better raised at tile. . .

boards not dowing 2 yonth to 1rn:re an attorney with him was argued by Dnniel \Vein- stein.

The &-.aft bbard regulnfit,,n I,l.ohibiting an attcrbc,\l is ,lnd.

individt~al trials." . . ,: . ., consti~~~tional,; .W i 11 S t e i 11.. At one poi.11t he silid, "If 1 said, beca~ae everyotle is en-

yo11 clrc really interested in( titled to an attonley iil ii cri-. raising these points, why ]lot minal. proceeding. A <haft: I t.ry a case that has tllc points Lq a trial, gct a ' ruling, and then, if necessary, appeal it, keep the case moving until you get (I final decision?" .

At other points JudZ@ Zir- poli said, "If yo11 want to get somewhere, you are going to have ti, sl~om me wllere tlli~, is an iasiie which 1 can talcc' and rule on, which 1 lhe power lo dccide."

Tile l Jo in t of conscience was 3 r g u c d by Alll)re~ Grossma:l, leader of the panel of a t t o r n e y s . "Wearc dcalillg ,vith a mass pile- nomcnan," he said. u ~ h i ~ war so ,,io a t e tile con-

board ilearing is at 'lenjt a', qnnsi;crimioal j>rocceding Ixcause, by refusing lo abide by Ihc boasd r 11 1 i n g, the youill can subject !limsel€ to the criminal process, Wein- stein said.

RACE . wry Frallcois,

lvllo is also a Sari Francisco SLipervisor, argued !he point aborrt the makcr~p of draft lloal.ds, ci[jllg t [ l~ se in :jle \i-,st,yn , ,\ d d i t i 11 and in H,,lllcrs Point. . . . .

1" the latter csse. he sdd, Illere is only ono - Negro on !I\" board,. whereas half tl'.~,

sdcnce a,ld moral I:opulation, at lerist, is Negro. of thcse lncn that they just ,

Iln tlunlws Point, he said, ca~l't serve."

I llorle ol' t!~e menlLcl-s live in

The best definition of a .\lu:lters Point or :cayview, conscientious 011 j e c t or , be \vllere tllc populr;tio~~ is 43 said, is "one who knows what ~:r!r ccl~t Negro, allcI cn:y one is good and right and must oj the'boord nici;~bcrs is h'e-

1 do wv1rat.i~ !;c!otl nrld rigl~t." ~ I . o . . . . . . . - ..

Zirpol i : It d i d n ' t r e a l l y bother me. I had my own views about t h e war i n Vietnam, but I d i d n ' t l e t them con t ro l me. My own views about t h e war i n Vietnam, and i t is s t i l l my view from t h e poin t of view of i n t e r n a t i o n a l pol icy, i s t h a t we should never have gone t o Vietnam. My view i s we should l e t t h e Russians and t h e Chinese f i g h t i t out . I am of t h e view t h a t you c a n ' t conquer a people and t h e Russians a r e proving i t . They haven't r e a l l y conquered t h e Poles, they haven't r e a l l y taken over Afghanistan. They want t o ge t ou t of t h e r e now, and t h e same th ing happened i n t h e Orient . The cen te r of t h e b a t t l e would have been t h e Chinese and t h e Russians t o determine who would be t h e inf luenc ing f a c t o r i n t h a t a rea . I d i d n ' t th ink i t was i n t h e i n t e r e s t s of our na t iona l defense t h a t we be t h e r e i n Vietnam. I th ink t h e French learned t h e i r l esson .

I am a l s o one of these who be l i eves a s Machiavel l i s a id : I I You never conquer any people." You can send a mi l l i on s o l d i e r s i n t he re and i n two generat ions t h e Romans a r e no longer Romans o r whoever they happened t o be. They become Bri tons o r whatever they a r e o r wherever they a r e . So t h i s i s a personal b e l i e f t h a t you j u s t c a n ' t conquer mi l l i ons of people without pu t t i ng i n mi l l i ons of s o l d i e r s .

Sharp: Did t h e s t o r i e s of people r e s i s t i n g and a l l of t h a t , d id i t r e in fo rce how you already f e l t ?

Zi rpol i : No, I was s t i l l of those who bel ieved t h a t it's' "your country, r i g h t o r wrong." No, because i f my b e l i e f s were t h a t s t rong , then I should never s i t on one of those cases . I should j u s t s t e p down. That 's what you say t o yourse l f . I mean i f you r e a l l y f e e l t h a t s t rong ly about i t , then you have no bus iness t he re on t h e bench.

Sharp: It s t r i k e s me t h a t what you a r e t a lk ing about is an example of how a judge opera tes , how a judge works, i n t h e sense t h a t t h e r e is a kind of o b j e c t i v i t y t h a t you l e a r n t o have about what you a r e doing. There a r e t h e personal f e e l i n g s t h a t t h e judge has .

Z i rpo l i : Yes, h i s personal f e e l i n g s can en te r i n t o i t from time t o time. You can ' t ge t away from t h e f a c t t h a t you a r e human. Your personal f e e l i n g s w i l l e n t e r i n t o i t when you have before you a s i t u a t i o n t h a t c a l l s f o r permissiveness t o indulge i n your personal r eac t ions . That 's why, l e t ' s say, whether you want t o give probat ion o r not give probat ion, t h e r e is no reason why t h e l e t t e r of t h e law should be t h a t s t r i c t . You can say t o your se l f , "Look, I analyzed t h i s th ing . Somebody might have s e n t him t o j a i l and some o t h e r judge would not and I am one of those who wouldn't under these circumstances." That may be due p a r t l y because of your own background and your personal b e l i e f s .

Sharp: Is sentencing one of t h e main a reas then f o r a judge where t h e r e is a s o r t of gut--

Zi rpo l i : The sentencing is an a rea i n which you have got t o forge t t h e Sermon on the Mount, "judge not.' ' You're not God, bu t never the less , you have got t o pass judgment and sentencing i s a matter of g r e a t concern t o many and most judges. Of course, before I came on the bench, I had th i r ty - th ree years of t r i a l experience a s a prosecutor , and a s a defense a t torney . Therefore, I had learned t o accept and t o approach wi th g rea t e r ease these problems than someone who had no p r i o r experience of t h i s na ture .

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

One of these o t h e r cases i s t h e 1970 case of Robert Andre. It is one of t he newspaper a r t i c l e s t h a t I s e n t you.* It pointed up the i s s u e of t h e d r a f t board 's use of induct ion t o punish men who d i d n ' t comply wi th the r egu la t ions . I wonder i f you could comment on t h a t and what i t s implications--

I don' t remember. My r e c o l l e c t i o n on t h a t is somewhat hazy. But i f i t turned o u t t h a t t h a t ' s what t h e board was doing, I would r u l e aga ins t i t . [pause] But I don ' t remember t h e d e t a i l s . The name sounds very f a m i l i a r t o me, bu t I don' t remember enough d e t a i l about Andre. Is t h a t i n he re somewhere? [looks through papers]

It 's t h i s one.

/I #

This was one t h e quest ion of r e t r o a c t i v e app l i ca t ion . But these were t h e people t h a t were improperly inducted, i l l e g a l l y inducted. I was saying t h a t i f t h i s fel low was i l l e g a l l y inducted, h e ' s e n t i t l e d t o go f r e e and so i s anybody e l s e who has been i l l e g a l l y inducted; I would use a r e t r o a c t i v e r u l e .

Do you remember how t h a t turned ou t?

I th ink we ordered him released.

Yes, bu t I wondered about t h e o t h e r people. The U.S. a t t o rney agreed i t might be--

I have no r e a l r e c o l l e c t i o n though on those, bu t I s e e t h a t t he d r a f t boards stopped t h e p rac t i ce .

That whole i s s u e of t h e d r a f t board 's ways of opera t ing i s p r e t t y s e r ious , I th ink .

I th ink t h a t t h i s is a s i t u a t i o n t h a t aroused t h e i r e of t he head of t he Se l ec t ive Service.

*See following page.

I Ji idgi Rules . . l ilegal Draft

' I

For 6000 By IPillirrrrr Cooricy .

; .4!vmsi~nately .. 6000, nien notv in t.he Anny be-

,C;lUSC Ute)' were tkilft€!d j i illeg:11Iy sho1tIcl be re-: . Ieasetl, a Pederal jadgc j ,, rnleil. Jicl-e y e s t e r c l a ~

.): Judye A I f o n s - ~ . ~ ~ l o l ' :

1 ~ 1 ~ 1 ~ ~ ~ l ~ L ~ 1 l Y 0"- 111~ cnsc: of Robei-t. W. Andre, 2.3. not\: a private la~igt~isl i- : ing in I hc siockade al: Fol.1 01.cl l o r beir~g AWOI..

'Andre had his inditction j spcerled t ~ p because lic failed I to give l ~ i s Long Beach draft board his cui~ent address ' i and was jncliicted iIIegal[y o n ,

. .4p.ril 9, l!XSJ. ' ' , .

Nine m o n't 11 s -later, the U~liLzd S1.af.c~ Supreme Court ruled in the Gutknecht case : that speedbig up a man's i!i- tl 11 c t i d 11, just because l ~ e ' bunls a drart card or fails to : give 3 .new address, is i lk- :

. gal. EE'I'IXOACTIVE

j The importance of Judge i %irpoli9s decision is that, ibr tlle first time? n Federal court has ruled there ". . . is

, no substanLia1 reason why the clccision in Gutknccl~t should nut he..given re t~oac-

: 'tive aplfication."; '1 ( 3 1e nut?$ tIlat,il!b govern-

- . s ; ~ ~ a c d ~ d g e , - -

a W O O in Army .. ' MAY braf@tiI . , UlBegaBBy

. Zirpoli a 10-day stay of exea I cution of Lhe order to release I Alldm, and \vill ilnmediately tivity ruling \~011ld affect ap- file a llotice to appeal,~edge prosilllately 6000 11le11 \v110 ~ i ~ ~ ~ l i * ~ rlllillg. , i \trcrc draftecl as tleli~~quellts. ,

I.ctting all those men out START

col~!~l cause great adminislra- Sorgcn and S u s s n o w, ' thoug11. said they thouglit the tire problems. the paver* ;

ll ilnmedialely went argued. start processing tlie 6000 sol-

That is a c o n c e r o. tllc 1 diels for discharge, cvcn i f j11Jgc said. but. ". . . since I the govenln~ent cloes appeal. rlcli~ic~ucncy i~luction \v a s I . ..If go\~~r.l11nell~ keeps "' a 'I l1 ir I b Y I tllesc nlen ill the .Army a ~ r l in g 1 - e ~ ~ 1 . the petitioner is in prison, kllo\\,illg of .Illclge Zir-

San Francisco Chronicle, May 2 6 , 1970

HIC Army illegally. "In view of tllis Llie factors

of law e~iforcenieiit relialice and ad~ni~lislrative convenience are entitled to allnost no aeigllt in the balanci1:g

I process." PRISON . I

" Andre's attorlleys, Micl~iiel Sorgen and R;la.k S~rssnow

' saw another implicatiail in

poli's ruling. it is holding Lllcn, a I y," Sllssno,v said. s added that,

,fould llopc tllc ,vould respect tile rights of these men and release them now."

Since tile ~&,h;llecht deci- '

sion Iast January, many men \vliose illduction or co~lvic t io~~

the ,judge's n~ling: \\ns not final have been giv- ' L T h ~ ~ ~ s a ~ i d s of nlcn wl10 1 en a rccond chance.

refused illegal ind~tction or- ! Draft boarib autonliitically clers ii1.e no\\. i l l prison."' Sor- j withdrew incluction o r d c r s gel1 said. "A11c.l they should tor many. Coorts dismissed be released. too." . i cases 1:-hich 1vc1.e still on 311-

Thal thinking could be ac- peal ol' refi;sii~g iilc!uc:ion. cirrate. admitted' .James L. [ Juclgc Zirl~oli's ri~ling is Bro\\lning. tlie U~iiletl States ! the lirst in r!ie colrnirp lo af- .4ttornep here. - , fect men a I r c a d y in llie

I-le saicl- he got from Judge j Army.

It could have been. Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zirpol i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

And t h e a t t o r n e y general d i d n ' t agree with i t . What happened was t h a t a f t e r Se l ec t i ve Service r a i s e d h e l l , w e found ou t t h e Depart- ment of J u s t i c e d i d n ' t agree. I n a way, t h e Department of J u s t i c e was disposed t o r e a l l y accept t he se conclusions. I n f a c t , t h e Department of J u s t i c e wrote a le t ter and s a i d , "Please don ' t a s s o c i a t e us i n any way wi th t h a t l e t te r (of Se l ec t i ve Service) ." That ' s what i n e f f e c t they s a i d .

And a le t ter of apology came?

I n e f f e c t , yes . Now, Judge Peckham's experiences may p a r a l l e l mine t o a g r e a t degree and i t would be i n t e r e s t i n g t o ge t h i s views on i t .

Y e s , because h e had q u i t e a few of t h e same k inds of cases .

Y e s .

The whole i s s u e of t h e d r a f t board 's a c t i n g improperly and t h e animosity and p r o t e s t i n g a g a i n s t t h e war would c r e a t e s o r t of a very d i f f i c u l t r o l e o r p o s i t i o n f o r t h e cou r t , I would th ink , t o be cons t an t ly c a l l i n g d r a f t boards on t h e carpe t and--

Well, i t wasn't t h a t bad.

It sounds p r e t t y dramatic.

I know, bu t i t wasn't q u i t e t h a t dramatic! [chuckles] Of course, you always have t o remember, too, of a l l t he communities i n America, t h i s was t h e primary cen t e r of r e s i s t a n c e .

So i t ' s magnified.

Magnified. People came t o San Francisco ; i f they wanted you t o r epo r t f o r induc t ion and you d i d n ' t want t o r e p o r t , t h e th ing t o do was t o come t o San Francisco and then your case would be before one t h e judges i n t h i s d i s t r i c t . So a l o t of people came he re d e l i b e r a t e l y . I n f a c t , t h e r e was a journa l t h a t they i ssued t o d r a f t resisters i n which they were advised t o do t h a t .

And a l l t h e procedures were l i s t e d about how t o do t h a t .

It gave you a c e r t a i n kind of r epu ta t i on a s generous and humanitarian and g r e a t .

Yes, I don ' t know about t h e "great" p a r t , but i t became a r epu ta t i on of being an easy judge. I f you were a l l ou t f o r t he war, we were t e r r i b l e . I f you f e l t t h e war was no t a good war f o r one reason o r another , then you thought w e were p r e t t y good. Your r eac t ion depended upon your po in t of view.

Zirpol i : But t h a t ' s t r u e i n any con t rove r s i a l quest ion t h a t a r i s e s i n t he cour t . That 's t r u e of t h e app l i ca t ion of t h e death penal ty. It 's t r u e of t he na tu re of t h e c o u r t ' s r eac t ion t o crimes.

Sharp: Did you ge t a l o t o f mail?

Zi rpol i : Some, not too much. Somebody sen t me a postcard c a l l i n g me an o ld Jewish son-of-a-bitch and saying I was a toad of Governor Brown. The w r i t e r was an American Legion veteran. I have forgot ten how t h a t went, but i t was very comical i n a way.

Sharp: But you were a b l e t o maintain a s o r t of l i gh thea r t ed f e e l i n g about t h e m a i l o r t h e c r i t i c i s m .

Zi rpol i : No, I ' v e only had two o r t h ree in s t ances i n which I thought t h a t a l e t t e r of t h a t na tu re was se r ious . For one i n p a r t i c u l a r I had the FBI ge t me photographs of t h e ind iv idua l , so when h e appeared i n my courtroom I could recognize him. Another one, I got from a lady, an e lde r ly lady, who s t i l l wr i t e s me. I gave h e r probation, bu t she s t i l l threa tens me. [chuckles] Then I had a fe l low who was i n Alcatraz who threatened me, bu t he mellowed with t h e passage of years and decided h e wasn't going t o k i l l me a f t e r a l l .

Sharp: I had one l a s t ques t ion about the d r a f t lawyers. I wanted t o ask you aga in because I wondered i f t h e r e was some s o r t of q u a l i t a t i v e d i f f e r ence about t h e input of d r a f t lawyers from, say, t h e input of a n t i t r u s t lawyers? Was the re something r e a l l y s p e c i a l about t he lawyers involved?

Zi rpol i : No, t h e lawyers who were involved i n t h e d r a f t a r e t h e lawyers who today a r e involved i n some form of publ ic i n t e r e s t , f o r ins tance , a f f i rma t ive a c t i o n lawyers. They were t y p i c a l of a f f i rma t ive ac t ion lawyers today and were i n a sense t y p i c a l of t he Se l ec t ive Service lawyers. You weren't going t o ge t any of t h e b ig downtown firms o r t he top lawyers coming i n on Se lec t ive Service cases . F i r s t of a l l , they had plenty of business . Unless some member of t h e family, one of them was involved, you wouldn't have them here . These o the r lawyers f o r t he most p a r t were s t rugg l ing lawyers. They were lawyers with l imi t ed experience, o r they were lawyers who represented extreme views l i k e [Aubrey] Grossman, f o r ins tance , a lawyer who would be represent ing t h e l e f t wing, a s f a r l e f t a s you can get i t ; o r they were Jehovah's Witnesses' lawyers a s a s e l e c t group; o r they were r e l a t i v e l y young lakyers . Some of them were i n i t by cour t appointment.

A Note on Law Clerks

Sharp: Were your law c l e r k s a t t h i s p o i n t e s p e c i a l l y ins t rumenta l i n he lp ing you t o do any s p e c i a l th ink ing?

Z i rpo l i : Y e s , my law c l e r k s have been ins t rumenta l from t h e day I came on t h i s bench, and I have been very f o r t u n a t e . I have had wonderful law c l e r k s , a l l of them.

Sharp: Since we ' re on t h e i s s u e of law c l e r k s (and then I ' l l ge t t o Judge Sweiger t ) , do t h e law c l e r k s have s o r t of an ass igned r o l e a s f a r a s you--

Z i r p o l i : A s f a r a s I ' m concerned?

Sharp : Yes.

Z i rpo l i : My law c l e r k s , I l e t them do any and every th ing they can accomplish. I n o t h e r words, every c a s e on t h e ca l enda r goes t o a law c l e r k . They've go t t o do t h e r e sea rch and prepare a memo. They go through t h e case and do t h e memo, and they make a recommendation, and then I review i t . I f I approve i t , and i f they have done a good job, I may accep t i t i n t h e form i t ' s i n . I may modify i t o r I may d i s - agree w i th i t , of course , a f t e r i t ' s a l l over . But I g ive them a l l t h e leeway I can. They a r e a l l s e l f - s t a r t e r s . I have been very fo r tuna t e . I p ick my law c l e r k s from Boalt Hal l . I have always been a b l e t o ge t one from t h e top 5 o r 10 percen t of t h e c l a s s . This unders tanding t h a t I have with Boalt Hal l f a c i l i t a t e s my s e l e c t i o n of t h e law c l e r k s . So a s I say, I have been very fo r tu - n a t e i n t h e q u a l i t y of my law c l e r k s and t h e i r subsequent p r a c t i c e and subsequent c a r ee r s have proven t h a t t o b e t r u e .

For i n s t ance , I would n o t pick a s a law c l e r k someone who is an angry young l ady o r a n angry young man who is a c rusader and has go t some b i g crusade i n h i s h e a r t . Then I ' m n o t i n t e r e s t e d because t h a t ' s no t being o b j e c t i v e enough. But t h a t ' s something I t r y t o f i n d o u t be fo re I engage them. I had one young l ady app l i can t wi th top grades, bu t she was a very angry young l ady and s h e had h e r bee f s about t h e s t a t e o f s o c i e t y , and of course , I d i d n ' t want t h a t .

We had a n experience over i n t h e Supreme Court of C a l i f o r n i a where t h e c l e r k s wrote a le t ter t o t h e e d i t o r , which was a tremendous r e f l e c t i o n on t h e a t t i t u d e s of t h e moment. I don ' t remember what they were, bu t i t caused g r e a t anx ie ty among t h e j u s t i c e s of t h e supreme c o u r t because they wanted t o make s u r e t h a t no one would ever i n t e r p r e t t h i s a s t h e views of t h e j u s t i c e s .

,Sharp: Do you t h ink your views on how t h e law c l e r k should work and what h e o r s h e should do have changed s i n c e your f i r s t - - ?

Zirpol i : No, they haven ' t changed. When I f i r s t s t a r t e d , I could do more of t he research myself. I ' v e always had only one law c l e rk . Some of t he judges have two. Now, before I became a s en io r judge, t h e workload was a l i t t l e heavier and t h e r e were a number of mat te rs t h a t I would dispose of without assignment t o t he law c l e rk . Today I ass ign everything t o a law c l e rk , even though I can dispose of i t without research because one of t h e objec t ives of a law c l e r k he re i s t o acqui re t h e bene f i t o f experience. I f based on my experience i n habeas corpus I don' t l e t t h e law c l e r k s e e a habeas corpus p e t i t i o n , t hey ' r e no t going t o f i n d ou t anything about i t . So I l e t him look a t i t , l e t him make t h e memo. I f I f i n d they missed a poin t , I j u s t c a l l t h e i r a t t e n t i o n t o i t : "Well, t h i s i s a l l f i n e . Everything you've got he re is g rea t . But you j u s t have t h e wrong defendant," by way of i l l u s t r a t i o n , o r respondent.

So I be l i eve i n l e t t i n g t h e law c l e r k do a l l t h a t he o r she can.

Judge Sweigert and the War i n Vietnam

Sharp : The l a s t i s s u e then t h a t I wanted t o ask you about with respec t t o the Vietnam war and t o some of t h e i s sues t h a t came before t h e Northern D i s t r i c t is Judge Sweigert 's view of i t , a s he expressed i t i n 1970 i n t h e case of those th ree Boalt Hal l s tudents who wanted t o chal lenge t h e war's l e g a l i t y . Sweigert, a s I read i n an a r t i c l e , supported t h e i r r i g h t t o chal lenge i t and i n a l imi t ed way--

Zi rpol i : Gave them standing.

Sharp: Gave them standing, and used t h i s opportuni ty t o express h i s oppos i t ion t o t h e war.*

Zi rpol i : Yes, and I would say t h a t h e was g rea t ly perturbed by the f a c t t h a t t h e [U.S.] Supreme Court refused t o t a c k l e the quest ion, and h e ' s the one t h a t made re ference t o t h e s t e e l cases and o the r s where they were prepared t o make ru l ings on t h e power of t h e pres ident , bu t when i t came t o t h e war, which was even more important, they would not r u l e .

Sharp: They s o r t of abdicated.

Z i rpo l i : They abdicated on i t : 'We're t a l k i n g about a p o l i t i c a l quest ion and, therefore , we don' t pass on p o l i t i c a l quest ions."

But a s he himself pointed ou t , from h i s po in t of view, t h i s was not a p o l i t i c a l quest ion; i t was a t r u e c o n s t i t u t i o n a l quest ion. It - was a quest ion of who has t h e power t o dec lare war, and i s t h i s a

*See following pages.

. . . . <. .

.. . . .:. - . . . . ,. . cia1 notice of the' fact that tile !,' -.:-,~-*,,.'.d:z~; .?.... ..,:%, arnied forces ol the United, , J I,r ci . . e'! . . M e re !-/$, skates . are now coinmittteq

. . '...:..,I

.. .~ ::..;.:.i . and have been for nearly five Sari Francisco Chronicle , .

.... ' 1 j years, to'a full scale war in ' sep ll , 1970 ' , Ta keS ' On ,: ; Vietnam; ulat this war . . . , . I ' never bee11 declared by. thci

. / Congress' and that the Presi- 1 :,.: r- Case , : dcnl 01 the UuitPd States,!

. . . , . . . tl~rough the incu~nbeilt and ; his l~redecessor in office, has 1

: By ~ i l l k , r r C P O ~ ~ ) ; continued. :. nevertl~cless, t o ; . ! conduct the war witlioiit w-j Ullited States nislr.i@' cciviag or requesting a :

Cauyt .. . Jnrfflb l~il~ial:s'$~vei.~. col1gressi6nal dcclaation." .-,--+. . .-. gelst .. rlefeadct! yestednp .;:

i.ight of three poullgi'i Judge Swe$ert, then listed ' the. reasons corttintisily given lllcn to e h d l w c the le- I / by Governlllcn+, foe eon-. ~al i ty of the l'iet~am w?r 3 Lillui,!g .fightin(' ltnoclied.

autL went on to ehiclft (.he' a:;..

. ,- U.S. Su:,:.eme C0ln.t for clorlging tile issiie. '

. 0

'.l:'hc Federal jurist de- - ]lied iL Governnlent motiori to disnljss the suit il.1 Ihe

'col~rse of a \vide-rangin;: (?pinion which indicated Sweigert himself r:cnds to regal-i.! the war as uncon- ; sl-itutioi:al.-.bc!ctt~tsc il: I ~ a s :

~ i ~ t bectn declarccl by Con- .' ': - gress:

. . He said he will not .make a .j fitia! rulir~g until the Govern- nlent ntt<,wys have filed an I answer in the suit of three Eerl=m' 1alv students* all of 81em military reservists. . in 28-page cliscussio11 of L!e legal i s s u e s, Judge , S~eigert s a i (1: ''ivilateyer tllc uitinii~te decision . . . we arc 01 [.lie ol~inionthat .:he courts . . . sllould dischal:ge their traditional resconsibj,i- ty for iuterpreting the Consti.. !ulion of the United States."

"It IILIS a 1 r e a tl y been chzrged that the lailure of i The Tonl;;n .~:esolu-:'-: - JUDGE SWEIGERT ' ' the courts to clccide thc con- j tion; sillce repealed I:,y .tile-., Court ~csponsibility .

. :. : . stitu:ic:~:il qucstiolt one Kay ': Senate, .dgcs .not comply i~itll- . :.. . . . . . : . . . . . .. .

or Llle olh-r, has ccntrjhuled Congress' duty to afl'irrna- i~sf:,,+r,; jucll ,ils : I:llat is. 10, tile conlroversy and the tivcly -~lecl~ire a war jC..i! !:.S,te is- . . , , , , , j l ic.a~w ;l,ld si,r,lllc~ cunscquenl i~npl:rceulenled ~vants . one, . i l ~ e j ~ d g ~ snid. , . bc . decided, by cui,rb: disuhlity of Our cO1ll'try 'lie . Why, :asked tlic jrrtigi:, I?as.~ tliat: tile Govel.i~lllcnl hak ~:!,t \:.ietnam war issue." not !lac . 1egelit)r .of the w'ar n l l :' " . l u b e sueri; or. ' kTc, . has , "judi- Seen decideci by tlle Supreme. that thc person cliallengiag

Court?. , .,.. .. . . ; . I the .war llas not; "standit~g:' . . .. . .

Because, 1 . t ~ sa id . layer ! to ,sue:. ' ', . . . ; . $ . :'.

Federal catals havq <!voided 1. . And the Supreme Cgl.~?; lie. ruling on the .~liain.issue, pre- ferring instcacl to dispose of cases "on technicalt jurisdic-

noted, has tiellied ..l)ctitiol~s seeking review p i .the ques- i tion. , " . . . . . ' . . ..;: 1

tional: p~acedural grounds" 01.1 the "polilical" cr~estion I .. 21

I - . -. -- .J~!~I& : si;ei&it-* .nO'(idd~titat , 1 I. REAL .,. . - . :. tile . ~ i ~ p r e m e ' C o i ~ t stepped., i . ! .. CASE' . .. . illid the cask $Cbngrewaan! ; : : , ; I f l ~ ~ ; ; $ s : illat !&,; Jllrld t ease

j . ; ~ l ~ ~ t ~ ~ - ~ ~ ~ ~ ~ ' ~ .beibeir.gJ i j j ,:fll t i ffs:llllist \vait:lf~,lj] made," lie wrote," for the ~ ~ Q ~ c c I fr~fil..tai;in$::h~sea!/ *]leg--am.called up, perllayr ; propositifion tllat clllapljauce

"'in t5e'"n!1'e'of Represmb-' sc~ddenly,, Bnd orderetl LO tllc wit11 the Co~lstitulioll and its tives* and alsoruled'a~'llstl \r ie t n a rn are?, pr11aps ! plilin provisjon Ulat tile poiip- , President. Ti-iui~ail who h?di ,

nlere ille strike*i , yaielily~ and then file a court ' er lo declare War lies. 1106 i l l ,

bound steel ,xniUs during a; si~if,: perhaps with 106 little' .:!thti. Preside~lt. bill ill. tile; a time t~ proprly do so; bor- i Conaess? should be 111sdc to, uational emergency , ,;.I / ders we think, 0h,lhe absurd. : ' rest upon'. so11lel.hi11g bcllcr.'

" ~ t , seelns to .this coort, j 1 said Jlldb S,veigert errphal, , ' -!rh~e ihme e 11 I i s t e e d I l I 1

'Ge . ilnlbivalellccs of :

ics,ly, ..sat to do,,,,,: I ~ a w u real, and not loo re- c0"i3'essiona1 Ira t i II J.jnert! :defense legislation,, a,p.

as . lmconstjtutjnnal a Pkesi-: ll!ole* stake in ,.c:ent~s wartime se iz t~e 9f.a. prhaps their lives . . . 9 s . ' j propriations and qllestio'la; . 1 fe,v p~;i"~te steel n l a s but to I F c d e ~ l attorneys must re- j ble resolutions. I shy awaE on "pouti<al ques- PIY to the suit !?illlin 15 clays, "T h a t such compliance : I I groun t~ . f ro~ . . i $e r f e~~ ii11d alter that i~ i l l C01tlC ar- calls for nothillg, less tllan

1 jllg ,\.jth a- prosjc[ential,iv3f,, ~ - t l l ~ ~ f l t ~ OIl tllc CoIl~~lu~On- what the Constituti~~~ plainly

'

says - a declarqiion,of war I itself, w011ll bc:to strain at a aliLy Of Ihc war. by the Congress- or at least i goat ;md.swallo\y.a eqmel:p,?. I. 'Iis 'in

Ordel'. an n l u a U y explicit congres- vesterdi~y, he wrote, is "dc; ' . 1Je ivent:to tIie issues in the,

- - . signed. lo furthcr, so far. as a sional expression, either ge11- . C;ISL' I~ctb~c'.l!inl:, .-- :. .:' ., ,k.' :. ..- -. . ' ' Dislricl: Court. can appropri- era1 or limited, but in any;

ately do so, an ultimaterul- event such as to clearly indi- : in our Circuit and, cab a ~oiigrcssional intent I

jho]~e@lly, .by . the Sul)~.cn~c to meet its responsibilities . . . by consenting to (or ree-: .Court, woiiall fie impol.t.~it lusing to tile injti- :

Rut he also. strr~ngly . incli- hv Il~e Presidatt: that unlcss cded l l q 1ea11s toward tlle I u;, P,sidelll l,~eei"es, llpon ~ i e w tlie ,war i s unconslilu- , r e u,c s t or tional- He said, that, in event NICS in favor of the reservists - thnl Llle'war is .unconstitational; - "the el- f e d of ally sllch judgenlent.

1 be pending. any

rllch a declaratory co,lse,ll, eill,C, general linlited, as ,,,, as reasunab~y possibk, ally undeclared war l~econles : a usl~pat,ion by fie .presi- 'lellt or all pbcLcafion 1 , ~ t]le

appeal ~IY" the Govr?rnment. i , Congress - or, l,erllaps - : He concll~ded with a strol~g ' bOttl,"

! presentation of tile Constitu. ti0nal question involved.

Z i r p o l i : war, and h a s i t been dec la red? H e concluded t h a t i t was a w a r and i t was n o t d e c l a r e d .

Sharp: Why d i d h e do t h i s ?

Z i r p o l i : Well, Judge Sweigert was a man o f s t r o n g p r i n c i p l e and i f t h a t was h i s c o n v i c t i o n , h e w a s going t o express i t , and t h e c a s e b e f o r e him provided a v e h i c l e t o p r o p e r l y do i t . He wouldn ' t do i t i f h e d i d n ' t have a v e h i c l e t o do i t al though h e might e x p r e s s h i s views i n t h e d i n i n g room, maybe t o m e o r some o t h e r judge. Once i n a w h i l e judges do t h a t . They shou ld n o t ph i losoph ize , f o r one t h i n g , b u t they do. The c o u r t o f a p p e a l s does i t more o f t e n t h a n n o t .

Sharp: Why i s t h a t ?

Z i r p o l i : W e l l , maybe t h a t ' s a l i t t l e too s t r o n g , more o f t e n than n o t . But they o f t e n p h i l o s o p h i z e when t h e r e is no need f o r i t . You w i l l more o f t e n f i n d them doing s o i n t h e d i c t a o f t h e c o u r t o f a p p e a l s d e c i s i o n s than you w i l l i n a d i s t r i c t c o u r t d e c i s i o n . Of course , t h e f u n c t i o n s of t h e two c o u r t s are a l i t t l e d i f f e r e n t , s o i t is under- s t a n d a b l e .

Sharp: Because o f t h e i r reviewing t h e l aw as opposed t o reviewing t h e f a c t s ?

Z i r p o l i : Y e s , they a r e reviewing p r i m a r i l y t h e law. They are n o t supposed t o s u b s t i t u t e t h e i r judgment on t h e f a c t s f o r t h a t o f t h e t r i a l c o u r t u n l e s s t h e c o u r t ' s judgment is c l e a r l y e r roneous . I n o t h e r words, i f t h e f a c t s o r t h e ev idence w i l l n o t s u p p o r t a conc lus ion o f t h e judge, t h a t ' s one t h i n g . But l e t ' s s a y i f t h e judge j u s t d o e s n ' t b e l i e v e a w i t n e s s , t h e c o u r t o f a p p e a l s h a s no r i g h t t o s a y , "We b e l i e v e him. "

Sharp: D i d J u d g e Sweigerttalktoyouaboutthisruling?

Z i r p o l i : Oh, h e d i d n ' t t a l k t o m e i n t h e s e n s e o f t a l k i n g t o me. I mean a t t h e d i n n e r t a b l e he j u s t s a i d , " I ' v e go t t h i s c a s e , and why i n t h e h e l l d o e s n ' t t h e Supreme Court perform i ts du ty and p a s s on t h e c o n s t i t u t i o n a l i t y o f i t ? " I mean t h a t t y p e o f conversa t ion , y e s .

Sharp: H e j u s t s a i d h e was going t o do i t . It w a s n ' t a q u e s t i o n of h i s r e a l l y s e e k i n g your--

Z i r p o l i : Oh, no, no, no. H e d i d n ' t s e e k o u r counsel . No, Judge Sweiger t r a r e l y sought counse l o r adv ice o f t h e judges as t o what h e shou ld do. He wro te w e l l and h e wrote good op in ions , and h e d i d n ' t need any a d v i c e i n t h a t r egard .

You have t o remember t h a t Judge Sweigert had a p r e t t y good unders tand ing o f t h e s o c i a l and economic problems of o u r t ime, and E a r l Warren r e l i e d on him. H e was a tremendous i n f l u e n c e i n t h e

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

programs invoked by E a r l Warren as governor, as i t r e l a t e s , by way of i l l u s t r a t i o n , t o Medicare and problems of t h a t c h a r a c t e r .

I had even s e e n a p i e c e t h a t t a l k e d about t h e r e l a t i o n s h i p between Warren and Sweiger t . Sweigert i s g iven q u i t e a b i t of c r e d i t for--

Yes, probably i n t h e h i s t o r i c a l s o c i e t y ' s B u l l e t i n . *

Is t h a t i t ?

It could be.

- - a s s i s t i n g Chief J u s t i c e Warren i n becoming more l i b e r a l i n some of h i s views.

Yes, d e f i n i t e l y . I t h i n k Sweiger t had more i n f l u e n c e on E a r l Warren than any man. During t h e e l e c t i o n campaigns, I a m s u r e Judge Sweigert wrote most o f t h e speeches o r d i d a l l t h e spade work on them.

Judge Sweigert was r e s p o n s i b l e f o r most of t h e j u d i c i a l appointments i n t h e s tate of C a l i f o r n i a t h a t were made by E a r l Warren. The governor would j u s t go i n t o Judge Sweigert and s a y , "Who do you t h i n k w e shou ld name?" O r Judge Sweiger t would s a y a few days a f t e r t h e vacancy, "We ought t o appo in t so-and-so."

H e was ve ry a c t i v e i n t h a t r egard and h e was v e r y e f f e c t i v e because h e would make t h e appointments e a r l y . As a consequence, no one would b e angry o r s o r e because they weren ' t appointed. They d i d n ' t g e t t h e i r a p p l i c a t i o n s i n , and t h e number of a p p l i c a t i o n s would b e l e s s . Sweigert would make a n a n a l y s i s and a n a p p r a i s a l of t h e lawyers i n a p a r t i c u l a r c o m u n i t y . He would c a l l t h e lawyer and say , "The governor would l i k e t o appo in t you t o t h e s u p e r i o r bench," and you d i d n ' t even t h i n k you wanted t o be on t h e s u p e r i o r bench. A f t e r you r e c e i v e d a phone c a l l you'd s a y , "I'll c a l l you back tomorrow." Then h e would g e t accep tances from a number of them. I know some judges were appointed i n t h a t f a s h i o n .

Tha t ' s q u i t e a b i t d i f f e r e n t from M r . Xeagan's approach t o j u d i c i a l appointments wi th a j u d i c i a l s e l e c t i o n adv i sory board.

*See t h e B u l l e t i n of t h e H i s t o r i c a l S o c i e t y of t h e U.S. D i s t r i c t Court f o r t h e Northern D i s t r i c t of C a l i f o r n i a , Vol. 2 , No. 1, Spr ing 1983. Included i n t h i s i s s u e a r e a n e s s a y summarizing Judge Sweiger t ' s p o l i t i c a l and j u d i c i a l c a r e e r and a memo which t h e judge wro te f o r E a r l Warren's g u b e r n a t o r i a l campaign i n C a l i f o r n i a i n 1942.

Zirpol i : Yes. Of course, I can understand it on the f e d e r a l l e v e l i n p a r t . Tradi t ional ly , the American Bar [Association] and o the r s have played a r o l e i n making recomendations. You have an FBI inves t iga t ion and everything e l s e t h a t goes with i t .

Sharp: I was thinking more of M r . Reagan a s governor of Cal i forn ia . H i s appointments process was q u i t e a b i t d i f f e r e n t i n terms of t he judic iary .

Zi rpol i : That was t r u e of most of t he governors and even Pat [Edmund G . ] Brown [Sr.] did. Pat Brown would take too long before he made h i s appointments and he wasn't a s systematic and d e f i n i t e a s Ear l Warren. Ear l Warren was systematic and d e f i n i t e because Judge Sweigert was a good organizer . He was well organized i n everything t h a t he d id . I mean he kept records of everything. I don't keep records. I j u s t don' t f i t i n h i s c l a s s .

Sharp: This r u l i n g t h a t Judge Sweigert made, do you r e c a l l what t h e response of t he o the r Northern D i s t r i c t Court judges were t o i t ?

Zi rpol i : I don' t th ink anybody objected, but I don' t r e c a l l anything s p e c i f i c o the r than h i s advising us and t e l l i n g us t h a t he was doing t h i s . I am no t sure i f he t o l d us a f t e r he had a c t u a l l y done it o r before , because most of t he judges don't t e l l you what they a r e going t o do i n advance, unless they a r e seeking some advice.

Sharp: So nobody r e a l l y openly opposed him?

Zirpol i : I have no r e c o l l e c t i o n of anyone opposing him. You would have a h e l l of a time opposing him because you would have t o work out an argument. You couldn ' t j u s t say, "I don't l i k e what you d id ." He would say, 'Why not?" Then you would have t o s t a r t making an ana lys i s and he'd say, "Do you mean t o t e l l me t h a t t h i s is not a war? Do you mean t o t e l l me t h a t t he pres ident declared war? When and where d i d he dec la re i t ? " You'd have a tough time meeting t h a t kind of argument.

Sharp : Yes. It was q u i t e s i g n i f i c a n t the way t h e press t r ea t ed i t . They t r ea t ed i t a s though he had s a i d t h a t he had declared t h a t the war was uncons t i tu t ional , so the press s o r t of took i t a few steps--

Zi rpol i : But i t d i d n ' t g e t , na t iona l ly , I don ' t th ink i t got t h a t much reac t ion .

Sharp : I don' t know. I know i t ' s f a i r l y well known within San Francisco t h a t he had done i t , but na t iona l ly I don' t know what s o r t of response the re was. Do you r e c a l l how t h i s turned out? I n the a r t i c l e i t s a i d t h a t he was going t o give the U.S. a t torneys f i f t e e n days t o present t h e i r s i d e of i t .

Zi rpol i : No, I don' t . I don' t r e c a l l with any c l a r i t y .

Sharp: I d i d n ' t f i n d i n t h e Chronicle what had happened af terwards.

Z i rpol i : He d i d nothing t h a t meant anything because t h e war went on; he d idn ' t s t op i t!

Sharp: I j u s t wondered i f t hese th ree young men d id go ahead and pursue t h e chal lenge, and what happened t o t h e r e s t of t h e case.

Sweigert wanted t h e d i s t r i c t cour t and t h e Ninth C i r c u i t r e a l l y t o dea l with t h e i s s u e of t he war and t h e war's cons t i tu - t i o n a l i t y . I wonder i f you r e c a l l sens ing any wi l l ingness on t h e p a r t of t h e Northern D i s t r i c t o r t h e Ninth C i r c u i t t o do t h i s ?

Zi rpol i : I don ' t remember any. There never is . You have no d e s i r e t o pass on a c o n s t i t u t i o n a l quest ion unless i t ' s meaningful. This has no consequence, so j u s t l e t i t s tand . The same way during t h e Japanese [internment] cases . There i s no d e s i r e t o take an appeal i n those cases o r t o have them appealed i f you can avoid i t . There was a sense of d e l i b e r a t e e f f o r t t o avoid appeal i n t h e Japanese cases .

Sharp: Yes, I know.

The Court i n Wartime

Sharp: Over t h e course of t hese interviews, we have ta lked about war q u i t e a b i t . The cour t s ' and t h e d i s t r i c t cou r t s ' r o l e , a s i t were, i n war-related mat te rs , a l l s o r t s of matters--the Japanese-American internment, t h e curfew orders , and a l l of t h a t , and now t h e CO and t h e Se l ec t ive Service s t u f f .

I wondered i f you had any broader view of t he c o u r t ' s r o l e i n wars and how.the cour t is supposed t o a c t o r r e a c t ?

Z i rpo l i : The bas i c , broad view i n war is t h a t t h e war should i n no way a f f e c t t h e c i v i l r i g h t s of t h e ind iv idua l unless an imminent danger is presented t h a t r equ i r e s a c t u a l cur ta i lment . Absent t h a t , a l l t he r i g h t s have t o cont inue a s they were, and then you have t o continue t o be, l e t us say , v i g i l a n t aga ins t a r b i t r a r y a c t i o n of t h e s t a t e , l e t ' s put i t t h a t way.

Sharp: So t h a t one of t h e main d i f fe rences between what was happening i n San Francisco i n World War I1 and t h e quest ion of the Japanese and the d i f f i c u l t i e s i s t h a t t he re was a major f e e l i n g of national--

Z i rpol i : Well, c e r t a i n l y a s f a r a s t h e Japanese were concerned i n World War 11, t h e r e was a form of m i l i t a r y necess i ty . How t r u e i t was, t o what degree i t r e a l l y was, I cannot say. A t t h a t t ime, we were i n a

Zirpol i : pos i t i on where we had t o accept b a s i c a l l y t he conclusions of t he m i l i t a r y because t h e cou r t s were not given t h e o t h e r views. The cour t s were not f u l l y apprised, f o r ins tance o f , l e t ' s say, even the views of t h e FBI i n t h e i r e n t i r e t y a t t he time.

But based upon t h e information t h a t was given us, based upon the progress of t h e war i n t h e e a r l y s t ages of i t , the re was every i n d i c a t i o n of imminent p e r i l , of a c t u a l a t t a c k on the West Coast. I mean we had l o s t a l l of t he naval b a t t l e s i n t h e f i r s t four o r f i v e months. Then t h e Japanese had taken over everything t h a t they sought t o take over up u n t i l t h a t time, and we had l o s t major naval b a t t l e s . So the re was every reason t o be concerned from t h e poin t of view, l e t ' s say, of t h e m i l i t a r y o r those who bel ieved t h a t a l l of t hese th ings were t r u e . The cour t s were presented wi th t h e f a c t s a s they knew them. They had no o the r source.

You had f i f t h column a c t i v i t i e s i n Europe a s some ind ica t ion . While t he re were no a c t s of sabotage on the West Coast t h a t we a c t u a l l y know o f , we do know t h a t t he re were mixed a l l eg i ances among the Japanese. I mean they don ' t want t o p a r t i c u l a r l y admit t h a t today, t h a t a t t h a t time t h e r e were. There were people who a c t u a l l y owed t h e i r primary a l l eg i ance t o t h e emperor. I mean t h a t was p a r t of the oa th of t h e s o c i e t i e s of 'which they were members.

Of course, today--I 'm not quar re l ing wi th them--but today they s l i d e over t h a t and overlook t h a t aspec t of t h e s i t u a t i o n , t h e condi t ion a s i t ex is ted .

Sure, on h inds ight , we were a l l wrong. There was no need f o r i t . But you c a n ' t wai t u n t i l something happens and t h a t was t h e s i t u a t i o n . [pause]

Sharp: I think t h a t ' s a l l t h e quest ions t h a t I have about these th ings . I wondered i f t he re a r e o t h e r comments t h a t you would l i k e t o make about the Northern D i s t r i c t .

Z i rpol i : No, I haven't anything more t h a t I r e a l l y th ink t h a t I could add t h a t is of any value. There is the quest ion involving Santa Ri ta , San Quentin--.

Welfare and Aid t o Families with Dependent Children

Sharp: There is a l s o t h e i s s u e of welfare cases which you had, AFDC [Aid t o Families with Dependent Children] mat te rs .

H H ,

Zirpol i : Did you f i n d something i n the papers on t h a t ?

Yes, I d id . Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Did you f i n d a comment from Reagan?

I th ink I might have missed t h a t .

They were very unhappy wi th my ru l ing .

I ' m s u r e they were. Le t ' s see , what d id I f ind? According t o t h e San Francisco Chronicle, September 11, 1970, you ordered an increase i n the AFDC program, a 32.4 percent increase t o r e f l e c t t h e inc rease i n cos t of l i v i n g . The s t a t e was supposed t o do t h i s t o comply with a f ede ra l o rder , bu t i t d idn ' t . Deputy Attorney General El izabeth Palmer objected t o your ideas , a s did Lucian Vandegrift , who was Human Re l a t ions Agency sec re t a ry , and s a i d they would appeal . Reagan b l a s t ed your r u l i n g on t h e following day. You ru led t h a t i n September. In December, your r u l i n g was s tayed by t h e Ninth C i rcu i t .

La t e r on, i n '71, Apri l of '71, you delayed your o rde r t o c u t o f f $700 mi l l i on i n f ede ra l funds f o r t h e AFDC. You s a i d i t wouldn't be necessary t o do i t i f t h e s t a t e Department of Socia l Services would r a i s e t h e bene f i t s by 21.4 percent , which i t had been ordered t o do by you previously and Sacramento Superior Court Judge Gallagher.

Yes, and they d id , and then Reagan claimed c r e d i t f o r i t i n h i s campaign f o r pres ident . While h e was campaigning f o r pres ident , he was t e l l i n g everybody how he increased the a i d f o r dependent ch i ld ren i n Cal i forn ia .

What he had done a c t u a l l y was i n response t o severa l o rders t h a t you had made.

I c u t of f f ede ra l funds. They e i t h e r d id i t o r they d i d n ' t ge t f ede ra l funds. They had t o make t h e i r choice.

Judge Wollenberg had q u i t e a few of these AFDC cases a s wel l .

One of these was a three-judge cour t and he was on the cour t wi th me. I ' ve fo rgo t t en who the t h i r d judge was. But we had a three- judge cour t . '

One of t h e reasons I wanted t o t a l k about the AFDC cases was because they show t h e f ede ra l - cou r t ' s involvement i n s t a t e mat te rs , e s s e n t i a l l y . They a l s o show t h e cour t i n a s i m i l a r way almost t o t h e Se lec t ive Service and conscient ious objec tor cases i n t h e sense t h a t i t ' s the pos i t i on of s o r t of a cu r r en t monitor of p rac t i ce s , f ede ra l o r s t a t e agency p rac t i ce s .

Z i rpol i : We were doing i t a l l o f t h e time.

Y e s . Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

We're s t i l l doing i t . You have t o bear i n mind t h a t i f an appeal is taken to ou r cou r t , we review a l l of t h e so-cal led Soc ia l Secur i ty b e n e f i t s , payments f o r persons who a r e i ncapac i t a t ed . I f they a r e turned down, they come t o t h e cou r t f o r an appeal . W e review a l l of these cases where people have been c u t o f f from t h e i r a i d and i t was no t furnished any longer because they a r e i ncapac i t a t ed , o r they cease t o b e i ncapac i t a t ed , o r they can be ga in fu l ly employed, a s cont ras ted t o whether they could o r could no t . So t h a t type of superv is ion goes on a l l o f t h e t i m e .

It seems l i k e a very major one because of t h e i n t e r e s t s t h a t a r e a t s t ake .

Subs t an t i a l ; f o r i n s t ance , on t he Department of Health, Education, and Welfare, yes .

I would l i k e f i r s t t o t a l k a l i t t l e b i t more about t h a t f i r s t next t i m e , which w i l l be o u r wind-up se s s ion .

Fine.

I am su rp r i s ed you a r e spending t h i s much t i m e with me.

I th ink w e a r e g e t t i n g some r e a l l y good information about t h e c o u r t ' s h i s t o r y and about your involvement i n t h e cou r t . I th ink i t i s going t o be a good series.

I am a f r a i d somebody is going t o read t h a t and say , "Who t h e h e l l does he t h ink h e i s ? " [ l augh te r ] hat's what t h e y ' r e going t o say!

Because you don't t h ink you a r e worth spending t h a t much t i m e on o r no t t h a t representat ive--?

I doubt t h a t I am worth spending t h a t much time on. Anyway, I don ' t know. Maybe not too many people w i l l read i t , so I shouldn ' t worry! [chuckles ]

I hope they do. [ l augh te r ]

a #

Substant ive and Adminis t ra t ive Changes w i th in t h e Court Since 1961

Sharp: I thought w e would s t a r t by spending some time j u s t t a l k i n g about how t h e cou r t has changed o v e r a l l s i n c e you have been on i t , s i n c e 1961.

Zi rpo l i : A l l r i g h t .

Sharp: F i r s t of a l l , I might t r y t o p i n you down j u s t a l i t t l e b i t and ask you about how t h e types of cases have changed themselves. For example, i s the re more a n t i t r u s t now than--

Zi rpol i : I th ink I ' l l r e a l l y j u s t t e l l you about t h e growth of the cou r t , t h e na ture of t h e cases , and things of t h a t cha rac t e r . To s t a r t with, when I f i r s t came on t h e bench, t h e f ede ra l bench, i n 1961, t he re were two d i s t r i c t cour t s i n Cal i forn ia : the Northern D i s t r i c t , with i ts s e a t i n San Francisco, and t h e Southern D i s t r i c t , with i t s s e a t i n Los Angeles. There were s i x d i s t r i c t judges i n t h e Northern D i s t r i c t of Cal i forn ia , wi th f i v e s i t t i n g i n San Francisco and one i n Sacramento, which was considered a d iv i s ion of t h e Northern D i s t r i c t .

I n 1967, Cal i forn ia was divided i n t o four d i s t r i c t s . The Northern D i s t r i c t , with i t s s e a t i n San Francisco; t h e Eastern D i s t r i c t , with i ts s e a t i n Sacramento; t h e Central D i s t r i c t , with i t s s e a t i n Los Angeles; and the Southern D i s t r i c t , with i t s s e a t i n San Diego.

Today, i n t h e Northern D i s t r i c t of Ca l i fo rn i a , t he re a r e twelve a c t i v e judges and th ree sen io r judges, and i n t h e Eastern D i s t r i c t , formerly p a r t of t h e Northern D i s t r i c t , t he re a r e now f i v e a c t i v e judges and two sen io r judges. So t h a t what was t h e Northern D i s t r i c t of Ca l i fo rn i a , when I was f i r s t inducted i n t o o f f i c e , has grown i n the number of a c t i v e judges from s i x t o seventeen.

Now, i t can be s a i d t h a t no cour t system i n modern time, inc luding those of a l l t he s t a t e s , has been exposed t o such an impressive expansion a s have t h e f ede ra l cou r t s of over t h e pas t twenty years . Now, not only has t h e volume of t h e business of t he cour t grown dramat ica l ly , but a l s o the na tu re of t he l i t i g a t i o n has changed wi th an extraordinary increase i n t he number of complicated and pro t rac ted cases , such a s a n t i t r u s t cases , p a r t i c u l a r l y t h e m u l t i d i s t r i c t l i t i g a t i o n , which came i n t o being i n 1963 and f o r t h e purpose of handling i t , they had t o amend t h e laws i n 1967 o r '68 t o s e t up a s p e c i a l m u l t i d i s t r i c t panel.

Now, i n add i t i on t o t h e a n t i t r u s t cases , we had c l a s s ac t ions which have tremendously increased i n volume; s e c u r i t i e s f raud cases , based upon t h e S e c u r i t i e s Act; t h e l abo r r e l a t i o n s and environmental cases; and the re has been a tremendous growth i n t h e s t a t u t e s i n adminis t ra t ive regula t ions t h a t have come down.

Addit ional ly, t h e f ede ra l cour t s have had t o cha r t new experiences i n c o n s t i t u t i o n a l law i n t h e form of due process and c o n s t i t u t i o n a l changes, no t only on t h e cr iminal s i d e , bu t on t h e

Zi rpo l i : c i v i l s i d e a s wel l , i n such cases a s pr i son reform, s o c i a l welfare , c i v i l r i g h t s and o the r discr iminatory p rac t i ce s . Now, these a r e i nd ica t ions of t h e change i n t h e na tu re of t h e cases and t h e increased complexity of t hese cases .

To g ive you an idea , t h e number of f e d e r a l agencies jumped from twenty t o seventy i n t h e p a s t twenty years , while t h e number of pages of f ede ra l r egu la t ions t r i p l e d i n t h e sevent ies a lone.

Now p a r a l l e l i n g these t rends , t h e supply of lawyers has doubled s ince 1960, 56 t h a t t h e United S t a t e s now boas ts t h e l a r g e s t number of a t torneys per thousand populat ion of any major i n d u s t r i a l na t ion i n t h e world. We have t h r e e times a s many lawyers per hundred thousand a s Germany, t e n times a s many a s Sweden, twenty times t h e number i n Japan.

Furthermore, t h e c o s t o f l i t i g a t i o n over t h e p a s t twenty years has increased dramatical ly so t h a t mst of t h e middle c l a s s and t h e poor cannot a f fo rd t o go t o cour t t o s e t t l e t h e i r grievances.

Furthermore, t he discovery p r a c t i c e i s now being abused i n such a fash ion a s t o prolong l i t i g a t i o n and t o increase compensable time f o r lawyers.

Now, these f a c t o r s , i n my view, tend to diminish t h e q u a l i t y of j u s t i c e and c a l l f o r some reforms. Now, how can we e f f e c t reforms? What can we do? The b a s i c response would be t o examine more care- f u l l y t h e adversary system and determine whether, i n t h e f i n a l ana lys i s , i t is undermining j u s t i c e i n many types of cases .

Now, I am no t advocating t h a t we do away with t h e adversary system, but t h e adversary system i s one of t h e f a c t o r s which adds t o t h e tremendous c o s t o f reso lv ing d isputes . I be l ieve t h a t what we should do-to g ive g r e a t e r access t o a l l people--is t o s impl i fy t h e r u l e s and procedures and take t h e measures t h a t would improve our r e s o r t t o mediation and negot ia t ion .

Many people today debate whether lawyers exacerbate controversy o r he lp t o prevent i t from a r i s i n g . Now, doubtless , they do some of each. I f e a r t h a t t he re i s a tendency on t h e p a r t o f lawyers today, r a t h e r than t o t r y t o meet wi th t h e lawyer on t h e o t h e r s i d e o r ask t h e o t h e r s i d e t o have i ts lawyer meet with him and r e so lve t h e problem by negot ia t ion , t o want t o be t h e f i r s t t o t h e courthouse. They want t o f i l e a s u i t t o show t h e i r g rea t s t r e n g t h and pos i t i on of s t r e n g t h , and i f they don' t do t h a t , someone might i n t e r p r e t t h a t a s a s i g n of weakness.

Now, i t is unfortunate t h a t such f e e l i n g e x i s t s , but such f e e l i n g adds t o t h e volume of l i t i g a t i o n . When you consider i n t h e f i n a l ana lys i s t h a t c e r t a i n l y not more than 10 t o 20 percent of t h e cases

Z i r p o l i : go t o a c t u a l t r i a l and t h a t e v e n t u a l l y 80 p e r c e n t o r b e t t e r a r e s e t t l e d , i t ' s a n i n d i c a t i o n t h a t t h e lawyers and a l l t h e p a r t i e s concerned cou ld have saved a l o t o f t ime and t r o u b l e f o r themselves, expense f o r t h e i r c l i e n t s , and t ime of t h e c o u r t by r e s o r t i n g t o n e g o t i a t i o n a t t h e v e r y o u t s e t . C e r t a i n l y , t h e minute a s u i t is f i l e d , i f i t ' s n e g o t i a b l e , they ought t o t r y t o n e g o t i a t e i t .

N ~ W , t h e r e i s a tendency on t h e p a r t o f some law f i r m s ( I n o t i c e a t l e a s t i n one) where, i f they contempla.te f i l i n g a s u i t , what they do i s p r e p a r e a complaint , send i t t o t h e a t t o r n e y o f t h e o t h e r s i d e and say , "This i s what w e propose t o do. Would you c a r e t o n e g o t i a t e a s e t t l e m e n t w i t h us?'' I have known c a s e s i n which t h e y have a c t u a l l y done t h a t and s e t t l e d t h e i r c a s e s . So t h e r e h a s t o b e some type o f reform i n t h i s a r e a .

Now u n f o r t u n a t e l y , w i t h p o s s i b l y some e x c e p t i o n s t h a t are beginning t o c r o p up, t h e l aw s c h o o l s a r e n ' t t r a i n i n g lawyers i n t h i s manner. They're t r a i n i n g them f o r c o n f l i c t r a t h e r than f o r what I c a l l , i n g e n e r a l , t h e a r t o f r e c o n c i l i a t i o n and accomodation. So t h i s i s my r e a c t i o n as a g e n e r a l overview o f t h e changes t h a t have t r a n s p i r e d o v e r t h e p a s t twenty y e a r s .

Now, t h e r e have been a d m i n i s t r a t i v e changes as w e l l , which have had t h e i r impact on t h e c o u r t s . I have a l r e a d y mentioned, of course , t h e f a c t t h a t we have had changes a r i s i n g i n o u r i n t e r p r e t a t i o n o f c o n s t i t u t i o n a l l a w . I l l u s t r a t i o n s o f t h e s e , o f course , are t h e c a s e s t h a t come down from what 1 - w i l l c a l l t h e Warren e r a .

But i n o r d e r t o t a k e c a r e o f t h e s e changes and t o improve due p rocess , o f course , l e g i s l a t i o n h a s been enac ted , such as t h e Speedy T r i a l Act , t h e Ju ry S e l e c t i o n Act, a l l o f which have n e c e s s i t a t e d t h e p r e p a r a t i o n o f p lans on t h e p a r t of t h e d i s t r i c t c o u r t . So we now have a p l a n under t h e Speedy T r i a l Act t h a t we o p e r a t e under s o we c a n be s u r e t h a t c r i m i n a l c a s e s w i l l b e t e rmina ted w i t h i n a r e a s o n a b l e p e r i o d . I n o t h e r words, ar ra ignment w i t h i n t e n days a n d ' t r i a l w i t h i n s i x t y .

We have adopted p lans f o r t h e appointment o f counsel . We have a f e d e r a l p u b l i c de fender h e r e , and I went over t h e h i s t o r y of t h a t once b e f o r e when I r e l a t e d how i t came about .

Then we have had problems a r i s i n g under t h e s e s t a t u t e s , which s a y t h a t you a r e e n t i t l e d t o have t h e b e n e f i t of counsel f o r t h e purpose o f pursuing c e r t a i n types o f l i t i g a t i o n , p a r t i c u l a r l y i n t h e c i v i l r i g h t s area--where do you g e t t h e s e lawyers? So t h e c o u r t s have had t o t r y t o adopt p l a n s f o r t h a t purpose.

\

While many of t h e s e a c t s p rov ide f o r a t t o r n e y s ' f e e s , i f t h e p a r t y p r e v a i l s , i t is s t i l l d i f f i c u l t t o g e t lawyers because t h e r e i s a c e r t a i n amount of c o s t invo lved . So we have adopted a p lan t h a t

Zi rpo l i : enables us t o use t h e l i b r a r y funds t h a t w e have r a i s ed over t h e years . We can advance c o s t s up t o $1000 t o an a t t o rney f o r c o s t purposes a lone, bu t no t f o r a t t o rneys ' f e e s , s o t h a t they can t ake depos i t ions and make discovery.

A s I say, t h e s e changes t h a t I have mentioned, of course, have r e s u l t e d i n a need f o r change i n t h e admin i s t r a t i ve process . Of course, one of t h e b i g changes t h a t occurred approximately i n t h e e a r l y s i x t i e s and not q u i t e mid-sixt ies is t h e change from t h e master ca lendar t o t h e i nd iv idua l ca lendar . We had t o change from t h e master calendar because under t h e master ca lendar , t he judge wouldn't g e t a ca se u n t i l i t was assigned t o him f o r t r i a l . The master calendar judge would be handl ing a l l p r e t r i a l motions. The master ca lendar judge would r o t a t e every two o r t h r e e o r fou r months, whatever per iod w e f ixed .

We had t o keep t h e lawyers from knowing when t h e r o t a t i o n s would take p lace because they would r e s o r t t o judge shopping i f they knew, and t h i s would be p a r t i c u l a r l y t r u e on the c r imina l s i de . I f you knew t h a t a p a r t i c u l a r judge was going t o be master calendar judge next month and you had a c r imina l case, you would t r y t o cont inue it u n t i l next month and plead your man g u i l t y because you had an easy judge o r you thought you d i d .

The master calendar judge would b e changed from t i m e t o t i m e . Since they handled a l l p r e t r i a l matters, sometimes t h r e e o r f o u r judges would be r u l i n g on a case o r some aspec t o f the ca se before i t got t o t r i a l .

So, a s I say , w e changed over t o t h e i nd iv idua l calendar . Then w e invoked a system of assignment t o judges by l o t s o t h a t no one would know which judge was going t o ge t a case. You went down t o t h e c l e r k ' s o f f i c e and f i l e d a case, and you would have no idea which judge was going t o g e t i t even i f you waited around because t h e cases a r e a l l placed i n ca t ego r i e s . We have e igh teen ca t ego r i e s of cases , such a s c r imina l , a n t i t r u s t , c o n t r a c t , c i v i l r i g h t s , p a t e n t , and so f o r t h .

We s e l e c t e d a number from each category f o r each judge. Le t ' s t ake con t r ac t s by way of i l l u s t r a t i o n . I f you want t o use t h e twelve judges a s an i l l u s t r a t i o n , you f i l l ou t twelve names, o r t en names f o r each of t h e twelve judges, say , you would have 120. The judges' names a r e placed on cards which a r e pu t i n sea led envelopes. They a r e then mixed i n , j u s t a s you do when you s h u f f l e cards . When a man f i l e s a s u i t , he g e t s a number and then t h e c l e r k p icks t he f i r s t envelope, opens i t , and then l e a r n s f o r t h e f i r s t time who the judge is going t o be and he puts t h a t judge 's i n i t i a l s a f t e r t he nu&ber of t h e case. That means t h a t judge has t h e case assigned t o him f o r a l l purposes.

Z i r p o l i : Xow, t h i s i s working o u t a l o t b e t t e r . W e had t o do i t , a s I say , because w i t h t h e passage 0.f t i m e , more complex and p r o t r a c t e d c a s e s were be ing f i l e d . It was r i d i c u l o u s having many judges pass ing on p r e t r i a l m a t t e r s . Even b e f o r e we went on t h e i n d i v i d u a l c a l e n d a r , as some o f t h e complex c a s e s a r o s e , we s t a r t e d a s s i g n i n g them t o i n d i v i d u a l judges. W e r e a l i z e d we would have t o do t h a t .

These are some o f t h e b a s i c a d m i n i s t r a t i v e changes t h a t have taken p l a c e o v e r t h e s e twenty y e a r s . I would s a y t h e s e a r e t h e major changes. Now, I d o n ' t know what o t h e r q u e s t i o n s you have w i t h r e l a t i o n t o t h e changes, because any th ing e l s e would be a l i t t l e more d e t a i l e d , and I d o n ' t t h i n k t h a t i t would add t o t h e o v e r a l l p i c t u r e .

Sharp: I have a couple o f q u e s t i o n s t h a t s o r t o f b u t t r e s s some o f t h e remarks t h a t you have a l r e a d y made. A few q u e s t i o n s on changes i n procedures , how t h e use o f d i scovery , f o r example, h a s come about . The h e a v i e r u s e o f d i scovery h a s r e a l l y come about s i n c e you have been on t h e f e d e r a l bench.

Z i r p o l i : T h a t ' s r i g h t .

Sharp: I was wondering about t h e problem of l imi ts- -?

. r p o l i : Well, t h e r e a r e problems of l i m i t s and some judges , f o r i n s t a n c e , w i l l l i m i t t h e number o f i n t e r r o g a t o r i e s t h a t you can ask . Most judges--all o f them, i n f a c t - - c a l l s t a t u s confe rences . A f t e r a c a s e has been on f i l e f o r a p e r i o d o f t ime, we ask t h e lawyers t o come i n and t e l l us what t h e s t a t u s o f t h e c a s e is . They have a pre l iminary p r e t r i a l t o work o u t a d i scovery procedure , s o as t o avo id t h e abuse o f d i scovery , and i n d i c a t e t h e manner i n which t h e d i scovery s h a l l proceed.

Of course , t h e p l a i n t i f f and t h e defendant a r e b o t h i n t e r e s t e d i n be ing t h e f i r s t t o s tart t h e d i scovery and we have t o sometimes c o n t r o l t h a t , s o we do. A s I say , one method is t o p u t l i m i t s on t h e number o f i n t e r r o g a t o r i e s . Another method i s t o r e q u i r e d e p o s i t i o n s b e f o r e you r e s o r t t o c e r t a i n types o f procedures . There i s no s e n s e i n t r y i n g t o make d i s c o v e r y o r a s k f o r product ion o f documents i f you don ' t know who t h e r e s p o n s i b l e p a r t i e s a r e i n t h e company t h a t i s involved. When you l e a r n t h e proper person having r e s p o n s i b i l i t y , t h e n t h a t ' s t h e person t h a t you depose. By t h a t p rocess you may avo id some of t h i s o t h e r d i scovery .

Of course , t h e p a r t y t h a t has t h e deep pocket can a f f o r d t o indu lge i n d i scovery . Qui te o f t e n h e does , and f o r c e s t h e man who has l e s s r e s o u r c e s t o expend s u b s t a n t i a l sums o f money, which might o the rwise n o t be necessa ry . I p r e f e r t o have t h e lawyers g e t t o g e t h e r and e n t e r i n t o a s t i p u l a t i o n a s t o a l l t h e f a c t s t h a t can be s t i p u - l a t e d and f o r t h e p roduc t ion of a l l t h e r e c o r d s t h a t need t o b e

Z i r p o l i : produced w i t h o u t r e s o r t i n g t o t h e c o u r t . They are f a i r l y c o o p e r a t i v e and w e have had a c e r t a i n amount o f success .

Of course , w e i n v i t e t h e p a r t i e s f a r more today t h a n w e d i d p r i o r t o 1960 t o s e e k s e t t l e m e n t through t h e p rocess o f t h e c o u r t ; t h a t i s t o say , t o have a judge ass igned t o s i t as a s e t t l e m e n t judge who w i l l t h e n s i t w i t h t h e lawyers , t r y t o e v a l u a t e t h e i r c a s e s w i t h them, and sugges t methods o f s e t t l e m e n t .

General ly , o f c o u r s e , n i n e t imes o u t o f ten, i t ' s a q u e s t i o n o f how much money and which of t h e p a r t i e s is t o pay i t . The judge can p r e t t y w e l l work t h a t o u t i f t h e people end up i n t h e same b a l l pa rk i f they are n o t t o o f a r a p a r t . Of course , i t ' s amazing sometimes. They are s o t e r r i b l y f a r a p a r t and s t i l l you end up w i t h a n appro- p r i a t e s e t t l e m e n t .

Now, you have problems when i t comes t o t h i n g s l i k e schoo l reform and p r i s o n reform. The judges c a n s i t w i t h t h e lawyers even t h e r e f o r purposes o f s e t t l i n g i t and working o u t a program. I f t h e r e is p r i s o n reform t h a t ' s needed, you s i t down w i t h t h e lawyers and i n d i c a t e wherein t h e c o n s t i t u t i o n a l r i g h t s o f t h e p r i s o n e r s were b e i n g v i o l a t e d and t h e measures t h a t c a n be t aken t o remedy t h e s i t u a t i o n .

That happened w i t h m e a t t h e ve ry o u t s e t wi th t h e San ta Rita pr i son .* I was a b l e t o g e t t h e lawyers i n t o g e t h e r and even t h e members o f t h e [Alameda County] Board o f Superv i sors and they ended up by making a p p r o p r i a t i o n s o f county funds f o r t h e purpose o f e r e c t i n g a new p r i s o n f a c i l i t y .

Sharp: Is t h a t what became Greystone?

Z i r p o l i : Yes. Well, Greystone i s what prompted t h e c r e a t i o n o f t h e new p r i s o n .

Sharp: I have some q u e s t i o n s o n t h a t , b u t they come r e a l l y a l i t t l e b i t later .

Z i r p o l i : Do you have any more on t h i s , and t h e n you s a i d something abou t t h e r o l e o f t h e judge?

Sharp: Two t h i n g s r e a l l y , I guess . There a r e two d e c i s i o n s , t h e Miranda d e c i s i o n and t h e Mapp d e c i s i o n (Miranda having t o do w i t h confess ion,** Napp having t o do w i t h s e a r c h and seizure***). I a m wondering how

* I n t e r e s t e d r e a d e r s may s e e Z i r p o l i ' s e a r l i e r r e c o l l e c t i o n s of t h i s i n c i d e n t i n Jackson, Judges, pp. 297-300.

**Miranda v . Arizona 384 U.S. 436 (June 1 3 , 1966) .

***Mapp v . Ohio 367 U.S. 643 (1961).

Sharp: they changed t h e cour t ' s work and i f you could j u s t say something about t h a t .

Z i rpol i : They changed t h e c o u r t ' s work because what you a r e t a lk ing about is confessions and unreasonable searches and se i zu res . The cour ts have invoked s t r i c t e r r u l e s a s they apply to t h e conduct of the pol ice . I n Miranda, t h e cour ts , because t h e po l i ce were abusing t h e i r au thor i ty f o r t h e purpose of secur ing confessions, they es tab l i shed a per s e r u l e , t h a t i f you d idn ' t advise t h e pr i soner o r t h e accused of h i s r i g h t t o a s s i s t ance of counsel, t ha t was a per s e v i o l a t i o n of h i s c o n s t i t u t i o n a l r i g h t s .

Now, I was always o f t he view t h a t the Supreme Court went too f a r . I f e l t t h a t what t he t e s t should be, under the circumstances, was the confession r e l i a b l e , was h i s statement r e l i a b l e , and t h a t a s f a r a s t he misconduct of t h e po l i ce was concerned, t h a t should be a matter of a c i v i l r i g h t s ac t ion aga ins t t he pol ice . But t h e minute you put i n t h a t per s e r u l e , even i f you thought t h a t t h e confession was r e l i a b l e , you couldn't use i t , and I always f e l t t h a t i t had t o be b a s i c a l l y a quest ion of r e l i a b i l i t y . That was j u s t a personal view.

There i s a tendency now t o move away from the o ld Miranda r u l e . Certainly, t h e c l e a r e s t example is t h a t you can c e r t a i n l y use i t f o r cross-examination purposes, which you couldn ' t do be£ o re .

On search and se izures , t h e question should always be, i n my view, was i t unreasonable? That 's where the [U.S.] Supreme Court ge ts i n t o t h e i r qua r re l . I mean one j u s t i c e sees i t one way and another j u s t i c e sees i t another way. So they look a t a l l of t h e circumstances.

A fel low comes ou t o f , l e t ' s say, a supermarket with a bag and you th ink maybe he has grocer ies , bu t you have learned from an informant t h a t t h a t ' s where t h e narcot ics a r e t o be exchanged. Then i f you s e i z e t h a t bag, go up t o him and open t h a t bag, where a r e you? W i l l t h e Supreme Court say i t ' s reasonable o r i t ' s unreasonable? I use t h i s a s an i l l u s t r a t i o n of t h e type of problems t h a t a r i s e .

But there is a tendency t o back away r i g h t now--not too far--and I am not suggest ing t h a t they should back away too much e i t h e r . But I th ink on some of these quest ions we might be b e t t e r o f f i f we had a s p e c i f i c s t a t u t e which e n t i t l e d you t o br ing a c i v i l ac t ion f o r unwarranted pol ice a c t i v i t y , although you can br ing i t under the Civ i l Rights Act even now. So you a r e not e n t i r e l y without a remedy.

Sharp: And ye t t h e two decisions, Mapp and Miranda, were based on the f e e l i n g t h a t t he pol ice had gone too f a r and t h a t t he re needed t o be t h i s s o r t of--

Zi rpo l i : Some form of r e s t r a i n t .

Sharp: Y e s , which I guess each judge then needs--

Zirpoli: . It hasn ' t been too bad. I mean a c t u a l l y a l o t of people have expressed f e a r of d i r e consequences, bu t t he work of t h e po l i ce has not been unduly hampered by i t r e a l l y .

I s sues f o r t h e Ninth C i r cu i t J u d i c i a l Conference: Sentencing I n s t i t u t e s , Divers i ty J u r i s d i c t i o n

Sharp: One o t h e r ques t ion about changes i n t h e cou r t . There is a Ninth C i r c u i t j u d i c i a l conference t h a t i s he ld annual ly , I be l i eve , now.


Sharp: I am wondering i f t h e kinds of mat te rs t h a t a r e discussed a t t h i s annual conference, what s o r t of impl ica t ions t he re a r e f o r t h e d i s t r i c t c o u r t ' s work, and how' tha t changed over t h e years?

Z i rpo l i : The j u d i c i a l conference i s provided f o r by s t a t u t e and when they m e t i n t h e e a r l y days (and now I am going back t o t h e t h i r t i e s and t h e f o r t i e s ) , i t genera l ly was j u s t t h e judges who met. Occasional ly , they would i n v i t e a lawyer, who could s i t i n t h e audience, bu t couldn ' t p a r t i c i p a t e . I f they i n v i t e d a lawyer, h e wouldn't p a r t i - c i p a t e anyway.

Then they evolved. They decided t o inc lude lawyer de lega tes . Or ig ina l ly each judge was permitted t o name a lawyer de lega te . Now, before I went on t h e bench, I served f o r many years a s Judge Goodman's lawyer de lega te . The purpose of t h e conference i s t o d i s cus s ma t t e r s of mutual importance and t h e impact o f l e g i s l a t i o n on t h e cou r t , r u l e s of procedure, c i v i l and c r imina l , and recommendations f o r changes and recommendations f o r t h e Ninth C i r c u i t r ep re sen t a t i ve s t o t h e J u d i c i a l Conference of t h e United S t a t e s , which makes recommendations f o r changes, f o r ins tance , t o t h e Congress.

{I {I

Zi rpo l i : Of course, another change dur ing t h a t e r a was t h e changing i n t he r u l e s so a s t o permit g r e a t e r discovery i n t h e c r imina l ca se s . The change, a s I say , has helped some and has a l l e v i a t e d i n p a r t t he f a c t t h a t you a r e no t e n t i t l e d t o a grand jury t r a n s c r i p t a s such. There was a t i m e when you d i d n ' t even have t o have a r e p o r t e r i n t h e grand jury room. Of course, now you have t o have a r e p o r t e r t h e r e t o r e p o r t a l l of t h e proceedings t h a t involve t h e i n t e r r o g a t i o n of witnesses o r t h e p re sen t a t i on of evidence, s o t h a t t o a degree, a s I

Z i r p o l i : say, t h a t h a s a l l e v i a t e d a s i t u a t i o n about which w e had been clamoring i n those e a r l y days.

Sharp: The j u d i c i a l conferences then t h a t are he ld w i t h i n t h e Ninth C i r c u i t , i n some ways a r e they se l f -educa t ing?

Z i rpo l i : They are se l f -educa t ing i n c e r t a i n a r e a s .

W e a l s o have t h e sen tenc ing i n s t i t u t e s . There t h e judges ga ther t oge the r f o r t h e purpose of d i s cus s ing sen tenc ing procedures s o a s t o avo id t h e i n e q u i t i e s and d i s p a r i t y i n sen tences . Then you have workshops. You ge t a group o f judges t oge the r , and each dec ides what t h e sen tence s h a l l be. Then they compare no t e s t o s e e what t h e r e s u l t s are and t o see what t h e d i s p a r i t i e s are, p a r t i c u l a r l y s i n c e you have i d e n t i c a l s i t u a t i o n s t h a t each judge is pas s ing on.

Of course , w e took c a r e of t h a t , i n p a r t , i n ou r own d i s t r i c t a t one t i m e by having t h e p roba t ion o f f i c e r submit a b r i e f summary of t h e sen tenc ing i n each ca se s o t h e judges could review i t i f necessa ry . So t h i s is some i n d i c a t i o n of what we are t r y i n g t o accomplish through t h e va r i ous conferences.

Sometimes t h e d i s t r i c t judges m e e t and t h e lawyers m e e t and t h e cou r t o f appea l s judges meet. A t l e a s t f o r h a l f a day, each of t he se groups meet s epa ra t e ly . Then, of course , w e meet as a body and w e always have a r e p r e s e n t a t i v e o f t h e [U.S.] Supreme Court t h e r e , too, t o d i s c u s s matters w i th us a s ques t ions arise from t i m e t o t i m e .

Sharp: O v e r t h e y e a r s , w i t h t h e l a w y e r d e l e g a t e s now i n f u l l s t a n d i n g a s p a r t of t h e s e j u d i c i a l conferences , i s t h e r e a commonality of approach w i t h t h e lawyers being more involved?

Z i rpo l i : W h i l e t h e r e is a commonality o f approach, t h e r e a r e d e f i n i t e l y d i f - f e r e n t approaches t o some problems. By way of i l l u s t r a t i o n , a peremptory cha l lenge t o a judge. You c a n ' t do t h a t i n t h e f e d e r a l system. I n t h e s t a t e c o u r t , you can e x e r c i s e one cha l lenge . Well, when t h e judges a r e d e f i n i t e l y opposed t o i t , most of t h e lawyers favor i t . I use t h i s a s a quick i l l u s t r a t i o n of t h e d i f f e r e n c e i n po in t o f view.

Of course , t h e r e was a l s o a d e s i r e on t h e p a r t of t h e f e d e r a l c o u r t s t o c u t down on t h e i r volume o f bus iness by removing a l l of t h e d i v e r s i t y j u r i s d i c t i o n ; t h a t is , t h e p r i v i l e g e of a c i t i z e n of one s t a t e who i s su ing t h e c i t i z e n of ano ther s tate t o sue i n f e d e r a l cou r t .

Sharp : I had heard t h a t . I wondered i f t h a t was going t o go through or--

Zirpol i : It 's s t i l l a mat te r of debate i n Congress. Leg i s l a t i on has been introduced from t i m e t o time, bu t i t has no t been passed a s y e t . Of course, one of t he b ig changes t h a t may occur would be t h e r ewr i t i ng o f t h e f e d e r a l c r imina l code. I f they do t h a t , t h a t w i l l become q u i t e an educat ional process and, I am s u r e , t h e s u b j e c t of most o f t h e j u d i c i a l conferences f o r s eve ra l years t o come.

When we thought i t was imminent, t h a t became p a r t of t h e d i s - cussion of one o r more of ou r own j u d i c i a l conferences. I had t o presen t t o them an o v e r a l l view of what t h e e f f e c t of t he new code would be and what i ts impact on t h e cou r t would be. That ' s one of t he func t ions of t h e J u d i c i a l Conference o f t h e United S t a t e s and a l s o t h e j u d i c i a l conference f o r t h e c i r c u i t , when l e g i s l a t i o n is proposed, t o t r y t o a s c e r t a i n t h e impact of t h e l e g i s l a t i o n on t h e cou r t .

W e have no con t ro l over what Congress wishes t o enac t a s f a r a s subs t an t ive law is concerned. Our i n t e r e s t is pr imar i ly what t h e impact w i l l be, p a r t i c u l a r l y a s i t r e l a t e s t o procedures. The new code w i l l change--somewhat change, no t s ign i f ican t ly- - the sentencing procedures.

Sharp: J u s t t o follow t h a t through a l i t t l e b i t more then, do you th ink t h a t t h e d i f f e r e n t c i r c u i t s would have d i f f e r e n t a t t i t u d e s about t h e d i v e r s i t y j u r i s d i c t i o n and whether o r no t g e t t i n g r i d of it--

Z i rpo l i : I know of no f e d e r a l judge who is i n favor of i t . ' It may be, bu t I j u s t don ' t know any.

Sharp: How much would i t c u t down on t h e volume of your work?

Z i rpo l i : I don ' t know. I have j u s t been guessing, bu t t h e r e a r e f i g u r e s ava i l ab l e , and I h a t e t o guess. A t l e a s t one o u t of twenty cases maybe.

Sharp: I was th ink ing maybe one ou t of t e n o r twelve.

Z i rpo l i : W e l l , I am n o t going t o say . But you can j u s t s e e f o r you r se l f . I f you can reduce t he caseload, by way of i l l u s t r a t i o n , by 5 o r 10 percent , t h a t means a d i f f e r ence o f f o r t y judges. Based on t h e number o f judges we have now, i t would make a d i f f e r ence of a t l e a s t f o r t y judges .

Fur ther Thoughts on J u r i e s

Sharp: I have a ques t ion then on j u r i e s and how they might have changed. Now, you mentioned j u s t b r i e f l y t h e Jury Se l ec t i on Act, which I th ink was i n '68 o r '69, bu t f a i r l y e a r l y i n your tenure .

Zi rpo l i : I don ' t r e c a l l t h e d a t e .

There was a l s o t h e Ba i l Reform Act, which was another reform t h a t occurred i n t h i s e r a . That was promoted by Robert Kennedy. There a r e problemsathere . I mean they a r e t a l k i n g about amending i t now s o a s t o inc lude t h e d e n i a l of b a i l i f t h e i nd iv idua l involved i s of danger t o himself o r t o t h e community. The test is, w i l l he show up; t h e so-cal led b a s i c test.

Now, on jury s e l e c t i o n , i t ' s based on a review of t h e h i s t o r y . A t one t i m e , women w e r e n o t allowed t o be on t h e j u ry . A t one time, each cour t had i ts own system and w e had what w e c a l l e d blue-ribbon j u r i e s . Now, t h e s e l e c t i o n has t o be r ep re sen t a t i ve of t h e community and vo te r l ists a r e t h e primary sources . So you determine how many, le t ' s s ay i n t h e Northern D i s t r i c t of Ca l i fo rn i a , p rospec t ive j u ro r s you need, and you t r y t o work t h a t o u t based on t h e number of r e g i s t e r e d v o t e r s . You s t a r t ou t wi th a number and say, j u s t f o r i l l u s t r a t i o n purposes, i f you need one ou t of twenty, you go down t h e vo t e r l i s t and say, " A l l r i g h t , w e ' l l s t a r t wi th number s ix t een , " whoever happens t o be s i x t e e n . The next one i s t h i r t y - s i x . The next one is f i f t y - s i x . So you p ick t h i s one and then you can jump he re , and you pick t h a t one. This would be a random s e l e c t i o n . A s a r e s u l t of t h e random s e l e c t i o n , you presumably ge t a more representa- t i v e jury.

Now, a problem a l s o a r o s e i n t h e ques t ion of e l e c t i o n of t h e foreman. There had been a d i s p o s i t i o n on t h e p a r t of t h e cou r t s t o look a t t h e q u a l i f i c a t i o n s of t h e r e spec t ive members of t h e grand jury , and you'd pick ou t some execut ive o r someone who had experience a s a managing o r pres id ing o f f i c e r . Well, t h a t r e s u l t e d i n some type of d i sc r imina t ion a s f a r a s women a r e concerned, and may have r e s u l t e d a l s o i n some forms of r a c i a l d i sc r imina t ion .

So what you do now is, while you don ' t overlook t h a t f a c t o r , you a l s o look a t t h e composition of your j u ry and judges w i l l now a t t i m e s s e l e c t a woman. Sometimes they do i t j u s t d e l i b e r a t e l y so t h a t no one can claim t h a t t h e r e is d iscr imina t ion , o r t h e y ' l l s e l e c t a Hispanic o r a black o r an Or i en t a l a s t h e foreman--or foreperson, I should say--of t h e grand jury .

Sharp: With a l l of t he se d i f f e r ences i n t h e way the j u r i e s a r e pu t toge ther and t h e way t h e forepersons a r e s e l e c t e d , how do you put i t a l l toge ther? What d i f f e r ences do you s e e i n j u r i e s now a s opposed t o maybe when you were f i r s t on t h e bench--can you make any general iza- t i o n s l i k e t h a t ?

Zi rpol i : When you picked t h e members of t h e Olympic Club, t h e Bohemian Club, t h e P a c i f i c Union Club, and t h e i n s t i t u t i o n s of t h a t cha rac t e r , o r names suggested by var ious people, lawyers o r t h e U.S. a t t o rney and

Zi rpo l i : judges, when you had t h a t procedure, n a t u r a l l y you got people who w e r e b e t t e r educated, f o r one. You got people who w e r e o l d e r , number two. You d i d n ' t ge t t h e people who were over seventy and you weren ' t l i k e l y t o g e t people under twenty-five o r t h i r t y e i t h e r .

The change is t h a t t he ju ry is f a r more r e p r e s e n t a t i v e without a doubt than i t was. Now, whether t h i s i s good o r bad--if you have a complicated case, i t ' s b e t t e r i f you have educated people. But then t h a t ' s n o t t h e func t ion of a democracy t h a t provides equal p ro t ec t i on f o r a l l . So we're adhering t o our r ep re sen t a t i ve jury s e l e c t i o n system.

Sharp: A r e t h e r e some cases t h a t a r e handled b e t t e r by judges than they a r e by j u r i e s ?

Z i rpo l i : Oh, t h e r e is no ques t ion t h a t t h e r e a r e c e r t a i n cases t h a t a r e so complicated i n cha rac t e r t h a t i t makes it very d i f f i c u l t f o r a l a y j u r o r t o comprehend and analyze. This is i l l u s t r a t i v e of an a n t i - t r u s t case t h a t I th ink Judge [Samuel] Conti had involv ing IBM. When i t w a s a l l over, he submitted an i n t e r roga to ry t o t h e j u ro r s . One of t h e j u r o r s s a i d , "My God, you have t o be a lawyer, an engineer , and an economist t o understand t h e case!"

You see? But s o f a r , you ' re e n t i t l e d t o a j u ry i n a l l those cases t o which you would have been e n t i t l e d t o one under t h e o ld common law. Now, even i n t h e a n t i t r u s t a r ea , you ' re e n t i t l e d t o a jury t r i a l . There's some ques t ion of whether, u l t ima te ly you could deny a ju ry t r i a l i n a n t i t r u s t cases even i f Congress d id s o by s t a t u t e . They have no t e l ec t ed t o do so . I have proposed such a s t a t u r e h e r e f o r such purposes, and t h a t ' s a mat te r of deba te , f o r a l o t of people a r e s t i l l say ing d e f i n i t e l y t h a t it would b e unconsti- t u t i o n a l t o deny you a ju ry t r i a l , even i n an a n t i t r u s t case .

Now, t h e r e a r e c e r t a i n cases where you ' re n o t e n t i t l e d t o a ju ry t r i a l ; f o r i n s t ance i f you f i l e a l awsui t aga ins t t h e United S t a t e s of America, seek ing damages, you ' r e no t e n t i t l e d t o a ju ry t r i a l . Matter of f a c t , you c a n ' t sue t h e United S t a t e s without i t s consent. However, t h e United S t a t e s , by a c t of Congress, has consented, s o t h a t i f a p o s t a l t ruck rams i n t o you while i t is going through a red l i g h t , a f t e r you go through t h e admin i s t r a t i ve process of p resen t ing your claim, and t h a t ' s n o t resolved, then you have a r i g h t t o sue t h e government. But you don ' t have a r i g h t t o a ju ry t r i a l . But i f a c i v i l i a n rammed i n t o you, another c i v i l i a n , of course you'd be e n t i t l e d t o a ju ry t r i a l .

P r i s o n e r s ' R igh t s and t h e Cour t ' s Role: Examples from San ta Rita and San Quentin

Sharp: I had some s p e c i f i c i s s u e s I wanted us t o t a l k about t h a t t h e c o u r t h a s d e a l t w i t h i n terms o f o t h e r s ta te o r f e d e r a l agenc ies o r groups s i n c e t h e s i x t i e s . I j u s t picked two examples. One i s t h e example of c o n d i t i o n s a t San ta Rita, Soledad, and San Quent in . The o t h e r i s t h e example of some of t h e AFDC matters t h a t you have handled. From t h e Chronic le I go t a l i s t of some i s s u e s i n v o l v i n g t h e t r ea tment of p r i s o n e r s a t some o f t h e s e f a c i l i t i e s . But I thought I would d e s c r i b e a few o f them, and then we would t a l k about them.

I n '70, t h e r e was a s u i t i n v o l v i n g t h e t r ea tment of p r e t r i a l d e t a i n e e s a t t h e Greystone s e c t i o n of San ta R i t a and a p p a r e n t l y t h e new f a c i l i t i e s had been b u i l t , b u t they were n o t a v a i l a b l e t o them. I n May of '72 you o rdered t h a t changed, t h a t t h e new f a c i l i t i e s would be a v a i l a b l e t o them.

I n March o f '74, t h e Ninth C i r c u i t agreed w i t h your 1971 r u l i n g t h a t a s t a t e p r i s o n must p rov ide counsel f o r inmates ; more s p e c i f i c a l l y , t h a t a p r i s o n d i s c h a r g e h e a r i n g had t o b e conducted more l i k e a regu- l a r c o u r t proceeding. John Wesley Cluche t te , who was one of t h e Soledad Brothers , had brought t h a t c a s e .

Then t h e r e a r e s e v e r a l c a s e s from San Quentin, r e p o r t s o f v i o l e n c e ; i n 1971, one r e p o r t i n which both inmates and guards were k i l l e d .

I n '75 i n December, you wro te a long, twenty-six page o p i n i o n about long-term maximum s e c u r i t y confinement a t San Quentin and t h a t t h e way t h a t t h a t confinement was be ing handled c o n s t i t u t e d c r u e l and unusual punishment. That was a '73 s u i t f i l e d by s i x d i f f e r e n t inmates, which, I guess , was a f a i r l y c o n t r o v e r s i a l r u l i n g . You had a l o t o f o p p o s i t i o n from t h e C a l i f o r n i a C o r r e c t i o n a l O f f i c e r s Asso- c i a t i o n .

Z i r p o l i : But they e v e n t u a l l y complied w i t h b a s i c a l l y e v e r y t h i n g I r u l e d on.

Sharp: They d i d ?

Z i r p o l i : Yes. The San Quentin Six , I t h i n k i t was--I c a n ' t t h i n k o f t h e name of the--Spain.

Sharp : I have a l l o f t h e names: [Hugo] P i n e l l , [ F l e e t a ] Drumgo, [Luis] Talamantez, [David] Johnson, [Johnny] Spain , and [ W i l l i e ] T a t e .

Z i r p o l i : A l l r i g h t . Well, Spain w a s t h e l e a d name. These men had p rev ious ly engaged i n c e r t a i n forms o f v i o l e n c e and were presumably involved i n t h e escape a t t empt t h a t ended up e v e n t u a l l y i n t h e d e a t h of t h e

Zirpol i : judge over i n Marin County. They were put , i n e f f e c t , i n s o l i t a r y confinement and they were the re twenty-three ou t of twenty-four hours of t h e day.

So they had no access t o f r e s h a i r o r exe rc i se . I ru l ed t h a t they had t o have access t o exe rc i se and f r e s h air .

They were chained. Tear gas was used. I abol ished t h e use of neck chains e n t i r e l y . I s a i d they could not use t e a r gas unless a s i t u a t i o n of a c t u a l danger occurred and i t became necessary t o r e s o r t t o i t t o avoid i n j u r y t o o the r s of t h e pr i soners o r guards.

These measures, which I suggested had t o be followed, were fo l - lowed, and t h e same was t r u e i n Cluchette. My r u l i n g i n Cluchet te , s t r ange ly enough, went t o t h e cou r t of appeals , bu t i t took them t h r e e years t o pass on i t , and they decided t h a t I hadn' t gone f a r enough. So they added some i tems, as a r e s u l t of which they were reversed by t h e [U.S.] Supreme Court.

With r e l a t i o n t o Santa R i t a , . t he se were people who had y e t t o be t r i e d . Yet t h e i r condi t ions of confinement were f a r worse than those who had a c t u a l l y been convicted. I f you were convicted, you were removed from t h e so-cal led Greystone and brought i n t o one of t h e dormitory-type places.

Sharp : The new ones.

Z i rpo l i : As a r e s u l t of t h e hearings which we had and t h e meetings which we had, they opened up a b i g outdoor a r e a where these people could go and spend t h e day. They opened t h e rece iv ing rooms, and t h e use of t h e showers, and t h e v i s i t a t i o n r i g h t s ; they were a l l improved.

Now, i t ' s unfor tuna te t h a t t h e cou r t s had t o do t h i s because t h a t ' s an i l l u s t r a t i o n of t h e increased workload t h a t t h e cou r t s were g e t t i n g a l l over t h e country. These p r i sone r complaints were coming i n because t h e l e g i s l a t u r e and execut ive o f f i c e , through t h e d i r e c t o r of t h e Department of Corrections, were not reso lv ing t h e problems.

Sharp: That i s what I would l i k e us t o ge t a t , some perspec t ive on t h e i s s u e of p r i son condi t ions and t h e c o u r t ' s r o l e and what e s s e n t i a l l y amounts t o monitoring p r i son condit ions.

Z i rpol i : The c o u r t ' s r o l e is an unfortunate one. The cour t should not be running t h e pr i sons , bu t i f you c a n ' t ge t t he l e g i s l a t u r e t o appro- p r i a t e t h e money, and you c a n ' t ge t t h e execut ive o f f i c e t o invoke the proper admin i s t r a t i ve procedures, then t h e cour t s have t o come i n . What t he cour t i s presumably l imi t ed t o i s t e l l i n g them t h a t what they a r e doing i s uncons t i t u t iona l and saying you have t o c o r r e c t t h a t .

Zirpol i : Sometimes you ge t a co r rec t ion of i t and sometimes you don' t . We have t h e s i t u a t i o n i n Alabama where Judge Frank Johnson invoked s u b s t a n t i a l p r i son reform. You had s i t u a t i o n s i n Florida where they ordered t h e r e l e a s e of pr i soners when t h e prisons became over- crowded. They have been doing t h a t around here , too. I not iced i n Santa Clara County they did t h a t f a i r l y recent ly .

But, see , we a r e not equipped t o do t h a t . We don't have t h e personnel and, furthermore, we conduct hearings t h a t a r e based upon r u l e s o f evidence. I f t h e l e g i s l a t u r e wants t o hear i t and conduct i nqu i r i e s , t h e r e is no l i m i t t o the information they can seek o r t h e expert advice t h a t they can seek. They a r e b e t t e r equipped t o make a study of t h a t na ture and reso lve by l e g i s l a t i o n where necessary t h e problems t h a t a r i s e .

Sharp: The o the r i s s u e then is changing standards of treatment of pr i soners . You have been deal ing wi th prisoners f o r a very long time, s i n c e your e a r l y work a t Alcatraz and seeing what was going on there . I am wondering how these p a r t i c u l a r cases i n which you had t o r u l e r e f l e c t some of your ideas about pr i sons and pr i soners and what they a r e e n t i t l e d t o and what they a r e not e n t i t l e d t o .

Zi rpol i : The only th ing t h a t t h e cons t i t u t ion says i s t h a t you s h a l l not be subjec t t o c r u e l and unusual punishment. So what you do is you review t h e condit ions a s they e x i s t and make a determination of whether i t c o n s t i t u t e s c rue l and unusual punishment. Is a pr i soner e n t i t l e d t o more medical ca re i n the pr i son than he would have received on t h e outs ide? Is he e n t i t l e d t o more den ta l ca re i n pr i son than he would have received on t h e outs ide? The answers s l~ou ld d e f i n i t e l y be no, but t he f a c t of t he matter i s t h a t i n many instances they ge t more because they wouldn't ge t any on the outs ide . They a r e i n no pos i t i on t o get i t . So you have t o study t h e s i t u a t i o n . Some of them complain about t h e exerc ise , about the food and the ki tchen, and you study a l l of those.

Now, I th ink i n t h e Spain case, I found the re was no bas i s f o r a t l e a s t three-quarters of t h e i r complaints but I did f ind the re was a b a s i s on t h e use of neck chains and l ack of f r e sh a i r and exerc ise and things of t h a t charac ter .

So I haven't any doubt t h a t pr i son condit ions have t o be improved, but t he re i s a l s o t h e f a c t t h a t t he prisons have been t ry ing t o t r a i n t h e i r personnel. They put i n a t r a i n i n g program a t Santa Ri ta a f t e r I made my ruling--the s h e r i f f ' s depattment did .

i t s e l f .

Sharp: What s o r t of t r a i n i n g was i t ?

Zi rpol i : A method of b e t t e r understanding and approach t o the pr i soners .

Sharp : Since., I guess, about t h e s i x t i e s o r so t h e r e has been a l o t of consciousness r a i s i n g about pr i soners and about t h e l i v e s of p r i sone r s , and a l i s t of what s o r t s of th ings they should be a b l e t o have i n terms of t h e condit ions. From what I have read, t h a t has brought a huge inc rease i n t h e numbers of pr i soners ' r i g h t s cases .

Z i rpol i : Oh, yes, t h e tremendous growth i n habeas corpus cases is t h e c l e a r e s t example. When you ge t t o t he poin t t h a t you have i n our cou r t over skx hundred habeas corpus cases , and maybe a hundred o r two hundred c i v i l r i g h t s cases on t h e p a r t of pr i soners , you a r e beginning t o load up t h e cour t . Most of t hese claims a r e f r i vo lous , b u t you have t o review them because even though t h e v a s t majori ty a r e f r ivo lous , now and then the re is a ca se t h a t has m e r i t .

This presents a problem i n t h e [U.S.] Supreme Court, too, because most of t h e cases t h a t are r e f e r r e d them by way of p e t i t i o n f o r w r i t of c e r t i o r a r i a r e f r i vo lous , bu t every now and then t h e r e is a good case. And i t ' s t h a t every-now-and-then-there-is-a-good- case t h a t r e s u l t e d i n a Miranda ru l ing , by way of i l l u s t r a t i o n .

The Death Penal ty

Sharp: The o the r i s s u e t h a t has t o do with pr i soners r e a l l y is t h e death penal ty a n d t h e death row appeal. The death penal ty has always been an important ma t t e r f o r t h e cou r t , I guess.

Z i rpol i : Yes.

Sharp: In 1969, you were assigned a l l of t h e death row appeals. How did t h a t a l l come about?*

Zi rpol i : That a l l came about because I had one o r two. It became apparent t h a t t h e ques t ion of t h e death penal ty i n Ca l i fo rn i a was t o be reviewed by t h e [U.S.] Supreme Court. It would have been unfortunate i f some of those pr i soners were executed who might very we l l have had a proper ca se depending upon t h e u l t ima te r u l i n g s of t h e Supreme Court. So t o avoid t h a t p o s s i b i l i t y , I was assigned a l l of t h e death row cases .

What I d id was t o contac t t h e warden a t San Quentin, a s I s a i d , t o advise me i n advance of t h e var ious execution da t e s so t h a t I could appoint an a t to rney who would then in te rv iew t h e ind iv idua l and

*See San Francisco Chronicle a r t i c l e on following page.

j punishment. "Why sfiouldn't lle t lodes-

! to) have the benefit of the I S u p r c m e Court decision?" I h:dge Z i ipd i asked.

' Eotb isslrcs were rejected by the. C'a'Jornia Supreme Court Kovcmberl8.

. . . . . . .

, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.... ,. ,. <.. :- . . . . . . . . . . , . . .

......

. . . . . . . . . . . . .- . . . . . . . . .... . . . . . . . . !:. . .: ~ . . . . . : :._ : . .

. . . . . . . . . . . . . . .

?. , :

. . . . : . . . . . , . . . . . . . . . . . . . . . . . i . : , , . I . . , ... . . . . . . . . . . . . . . .

1. m L E ; . l'\v:---A-~

By IPiIIium C O O J I C ~ . . ' . . ~thout sounding overly

inhumane," Harris said, "you A-' Federal. ' judge here . TIlerdore, arg~!ed modes-; should liot protect Jlim 8 i

yesterday stayed the exe- to's ntton15y, Jerome Fzlk, it.,.--.. . -- . - - -

:cution of a Wath Rmv in- !might 11s fulik for Modesto .n:aiting. for someUiing'from'

San Franc i sco Chronic le February 21, 1969

Washington,. b c c a u s e next year, I'm mre, O~ere'll be, sonlelhing . ebe from Wasli- iogton., . . .

. . . . . . . .q*~cylc . ' ';The inierest of the people

i mato-and : ilidicated he I will do the ~lrme for all oth-

. to appeai to that court. I "We run the risk of having j to azk for a Federal stay. on .:the eve of his execution, if 'the Shfe deniccl a stay on Marc!! 4--2~d ~.[ICCP, ~0lild be a slip~ii;," li'alk said.' 1 has .bee11 given very sllort ':': Judge Zirpoli said that his sllrift for several years:now. having al! the Deatli ROW ' "l'his is a dekying'tactic.

; ter Federal colrrts, granted:a ;stay to Lawrence G. ,Modes- to, 35, n7ho was lo he killed March 5. , , -

"Pending n Supreme Coirt 1 n~ling tliere sliould be protec- I lion for him and everyoltc ; s i m i J a r 1 y situated," the j judge said.

. . A R ~ u ~ ~ ~ ~ ~ s .

cases "is' a pretly awesome I ,"~llere Ile sits with anot.tier arrow in, his quiver.' (the jury

' fes~onsibility' a n d I, too, issue), waiting to see what have a fear of a slipup. . the S 11 p r e m e Court does, i "I have my s e c r c t 3 I' y ,,when he sllollld be ordered to mark my caIenclar so U~erc'lI (Irett~n to the State courts and be no slipup. and sollle peti- {exhaust his remedies there." tioner will he deprived of i Tllere are now only five

i having his case heard. . ' men on '~ea th Row ivith firm i . I? agree that -possibility is -

i ,'remote but I am colicerned On March 3 the highest ,d worried.v. court 'is lo hear arguments in

.'

/ two cases which contain im- Arguing against the s k y 'bas Albert \V. FIarris Jr., a

.execution dates. : hlodcsto was convicted o f thc 1961 sledge-hammer kill- iq; in Riverride of two girls, i 3 and 13. J : portant Constitutional issues deputy a t o r n

. . : which 'rodest' raiJc : Even jf the suprenle Colrrt i 'ere, Judge " ~ 0 " said. i rejects the issues ill ~ ~ d ~ ~ - i These are that juries no" to's case. Modcsto anoth; ]lave no sta~~dards or. gude- 1 , he take to I Zncs when they are trying to decide if a man should he put

11. dcdh or given life inlpfi* o~iment, a n d t h a t a death

State Courts - that potential jurors wllo opposed the

,vere fl.om jury, Hards said. se!ltence k cruel and unusual , I

Z i r p o l i :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

f i l e a p e t i t i o n i f necessary and ge t a s t a y of execut ion. So t h a t worked ou t very w e l l .

W e haven't had a n execut ion i n Ca l i fo rn i a f o r God knows how many years , and I don ' t r e c a l l t h e exac t number.

Quite a while . The a r t i c l e mentioned t h a t you had granted a s t a y o f execut ion f o r Lawrence Modesto and you s a i d t h a t t h e Supreme Court should rule on t h e c o n s t i t u t i o n a l i s s u e involving j u r i e s having s tandards o r gu ide l ines when they were t r y i n g t o decide i f a person should have t h e death pena l ty o r l i f e imprisonment. I wondered how t h a t a l l turned out because I d i d n ' t f i n d any o t h e r mention of it.

They s a i d they d idn ' t have proper s tandards and t h e law was amended. It is s t i l l being argued a s t o whether these s tandards even a s amended a r e appropr ia te .

What d i d t h e s tandards say?

Well, t h e r e i s a s tandard i n t h e Supreme Court. I don ' t r e c a l l t h e d e t a i l s , b u t i t ind i ca t ed t h a t c e r t a i n f a c t o r s have t o be considered by t h e jury. I f they were no t considered and i f they w e r e no t appl ied uniformly, then you d i d n ' t have proper s tandards . Sometimes whether you ge t t h e death pena l ty o r no t depends upon t h e j u r i s d i c - t i o n i n which you a r e convicted. You a r e more l i k e l y t o ge t t h e death pena l ty i n , l e t ' s say , San Mateo County than you would i n San Francisco, because of t h e d i f f e r e n c e i n t h e composition and make-up o f t h e populat ion.

How long did you have a l l of t h e death row appeals?

I don ' t want t o guess, bu t I don ' t t h ink I had them more than a yea r .

Was t h e r e any general e f f e c t then of your having a l l of them?

W e l l , i t was a l o t more convenient. It was j u s t a mat te r o f cour t convenience. It was b e t t e r t h a t one judge have them s o we would ge t a uniformity i n ou r r u l i n g s f o r t h e presen t purposes than t o have th r ee o r fou r judges b a s i c a l l y consider ing t h e same ques t ion .

I wonder what you would say were t h e important i s s u e s f o r you r se l f i n consider ing death pena l ty cases?

The important i s s u e i n consider ing death pena l ty cases is t o review the circumstances of convic t ion f o r one t h ing , and t h e na tu re of t h e t r i a l and t h e manner i n which t h e case was presented t o t h e ju ry , how the jury was s e l ec t ed . All of these become f a c t o r s f o r cons idera t ion ,

Z i r p o l i : and t h a t ' s what you'd do, you would review i t . But w i t h t h e [U.S.] Supreme Court e n t e r t a i n i n g t h e s e c a s e s , you had t o r e s o l v e t h e doubts i n f a v o r o f t h e p r i s o n e r u n t i l t h e Supreme Court made i ts r u l i n g s .

No, I would n o t have permi t t ed a n execu t ion u n t i l I w a s completely s a t i s f i e d t h a t t h e i n d i v i d u a l involved had t r u l y exhausted a l l of h i s remedies, i n c l u d i n g c e r t i o r a r i i n t h e Supreme Court . So I would s t a y e x e c u t i o n s t o enab le t h e p a r t i e s invo lved t o f i l e t h e i r p e t i t i o n s , because what happens i s f i r s t , you go i n t o t h e s t a t e c o u r t and exhaus t your remedies. Then you come i n t o t h e f e d e r a l c o u r t . From t h e d i s t r i c t c o u r t , you go t o t h e c o u r t of a p p e a l s and then up t o t h e [U.S.] Supreme Court . C e r t a i n l y , u n t i l someone had exhausted a l l o f t h e s e remedies, you weren ' t going t o pe rmi t an execu t ion .

Now, e v e n t u a l l y , I had t o permit a n execu t ion where a l l of t h e remedies had been exhausted and t h e f e l l o w came through my c o u r t and went t o t h e Supreme Court . The Supreme Court turned him down and h e was t o b e executed, and h e w a s . He t r i e d t o come back a second t i m e b u t I c o u l d n ' t do any th ing any more. A f t e r t h a t , my hands were com- p l e t e l y t i e d . I t h i n k t h a t was t h e l a s t man t o b e executed i n San Quentin.

Sharp: I a m t r y i n g t o remember h i s name. [Aaron Mitchell.]

Z i r p o l i : Well, I may remember i t myself , b u t I remember I even t a l k e d t o h i s mother .

Sharp: I t h i n k I had s e e n a n o t e t h a t s h e had come t o see you.

Z i r p o l i : Yes, and s h e came t o my chambers and I t a l k e d t o h e r and t r i e d t o e x p l a i n t o h e r what t h e s i t u a t i o n was, b u t it was very d i f f i c u l t .

Sharp: I c a n ' t imagine what t h a t would have been l i k e , e i t h e r be ing t h e mother o r you i n terms o f d e a l i n g w i t h t h e s i t u a t i o n . [pause]

Aid t o Fami l i es wi th Dependent Chi ldren: S t a t e and Federa l R e s p o n s i b i l i t i e s

Sharp: The AFDC c a s e s , we t a l k e d abou t t h e s e j u s t a l i t t l e b i t las t t i m e , b u t e s s e n t i a l l y they a r e c a s e s i n which people cha l l enge c u t s t h a t t h e a d m i n i s t r a t i o n had made o r p reven t ion o f i n c r e a s e s which t h e a d m i n i s t r a t i o n had made, somehow g e n e r a l l y n o t complying w i t h f e d e r a l o r d e r s f o r h i g h e r , more generous a l l o t m e n t s .

Z i r p o l i : Well , i t was p rov id ing f o r t h e i n c r e a s e i n c o s t o f l i v i n g . As I r e c a l l - - t h a t w a s t h e three-judge c o u r t ?

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

That 's one of them. That 's t h e case you were with Judge Wollenberg.

Wollenberg, yes. That was j u s t a s i t u a t i o n where t h e r e was f a i l u r e t o comply with f e d e r a l s t a t u t e s , which was necessary i n o rde r t o ge t f e d e r a l funds, and i f you d idn ' t comply with t h e f e d e r a l s t a t u t e and provide f o r cost-of-living increases , you were not e n t i t l e d t o f e d e r a l funds, and w e j u s t t o l d them t h e increase would have t o be made i n o rde r t o be e n t i t l e d t o f ede ra l funds. I th ink w e even gave them a percentage t h a t they had t o increase . I th ink o r i g i n a l l y i t was around 30 percent , and we cu t i t down t o a 23 percent i nc rease , and t h i s caused a cons te rna t ion i n Sacramento i n t h e governor 's o f f i c e , among o the r s . The then governor i s now our pres ident .

I am wondering, too, about t h e r o l e of t h e [ s t a t e ] a t t o rney genera l ' s o f f i c e .

The a t to rney genera l ' s o f f i c e was opposed t o i t . Mrs. Palmer was t h e deputy a t to rney general . But M r s . Palmer, I th ink , was p r e t t y wel l s a t i s f i e d t h a t we were r i g h t . I mean, she d i d h e r b e s t t o represent t h e a t t o rney genera l and t h e poin t of view of t h e s t a t e of Ca l i fo rn i a o r t h e poin t of view of t h e governor, I should say, bu t I am s u r e t h a t she was c l e a r l y s a t i s f i e d t h a t our r u l i n g was r i g h t .

Now, El izabeth Palmer is somebody I have been t r y i n g t o f i n d out information about f o r a long t i m e . A t t h e time of t h i s case , she must have been f a i r l y e lde r ly . I know t h a t she had been around a long t i m e . Yes. I wouldn't want t o guess too much on i t , bu t I am seventy-eight. She would be about seventy-two now, and t h a t ' s a guess. I may be o f f a few years .

Can you t e l l me anything more about he r? I don' t even know how long she was i n t h e a t torney gene ra l ' s o f f i c e .

Oh, she was t h e r e f o r q u i t e a number of yea r s . She was a good lawyer, and I th ink she was a very good r ep resen ta t ive f o r t h e a t t o rney genera l ' s o f f i c e . I have seen many r ep resen ta t ives from t h a t o f f i c e , but I d i d n ' t s e e very many t h a t were b e t t e r o r h e r equal .

Was she formidable?

Yes, i n a very d ign i f i ed way. Oh, yes .

I don' t have any image of what she looked l i k e o r how she--

She was a somewhat handsome lady . She wasn't a young lady i n h e r e a r l y twenties o r something of t h a t na ture . So, no, I l i k e d h e r a s a lawyer and a s a person. I n f a c t , I at tended h e r ret i rement pa r ty .

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

The a t t o r n e y g e n e r a l ' s o f f i c e gave h e r a b i g p a r t y when s h e r e t i r e d a f t e r God knows how many y e a r s .

Is s h e s t i l l a l i v e , do you know?

I t h i n k s o and I t h i n k s h e l i v e s i n Marin County.

Judge Wollenberg t a l k e d a b i t about h e r i n some o f t h e s e c a s e s . I guess I t h i n k i t must have been t h e s e same c a s e s , t h e AFDC c a s e s .

Now, you would have had d e a l i n g s w i t h bo th Tom Lynch and E v e l l e Younger. Tom Lynch (a Democrat) was a t t o r n e y genera l d u r i n g M r . Reagan's f i r s t t e r m ; E v e l l e Younger w a s d u r i n g h i s second.

They were s e v e r a l c a s e s r e a l l y when E v e l l e Younger was a t t o r n e y g e n e r a l , I don ' t remember any p a r t i c u l a r l y s i g n i f i c a n t c a s e s when Tom Lynch w a s a t t o r n e y g e n e r a l .

I thought t h e r e were more r e a l l y i n t h e second t e r m . M r . Reagan considered w e l f a r e reform more s u b s t a n t i a l l y i n h i s second term than h e d i d i n h i s f i r s t , s o I thought i t was probably M r . Younger. I wondered i f your d e a l i n g s through t h e c o u r t were p r i m a r i l y through Mrs. Palmer o r you a c t u a l l y had some--.

No c o n t a c t w i t h t h e a t t o r n e y g e n e r a l as such. M . r s . Palmer was t h e c o n t a c t . Of course , Tom Lynch I knew because h e was a s s i s t a n t U.S. a t t o r n e y a t t h e same t i m e t h a t I was.

Y e s , and you were both on a few c a s e s t o g e t h e r , I b e l i e v e .

Oh, yes . W e were on "Baby Face" Nelson t o g e t h e r .

Tha t ' s what I thought .

What is t h e r o l e of t h e a t t o r n e y g e n e r a l ' s o f f i c e i n t h e s e AFDC c a s e s ? What was i t from your viewpoint?

The r o l e ? To prove t h a t t h e s tate o f C a l i f o r n i a was r i g h t and they d i d n ' t have t o provide f o r t h e s e i n c r e a s e s ; and t h e r o l e o f t h e a t t o r n e y g e n e r a l ' s o f f i c e i s t o c o n t e s t t h e s tate habeas corpus c a s e s invo lv ing p r i s o n e r s o r p r i s o n e r s ' r i g h t s ; and t o defend s u i t s a g a i n s t t h e s tate f o r d i s c r i m i n a t o r y p r a c t i c e s i f they occur , t o k e e p ' t h e a t t o r n e y s ' f e e s as low as p o s s i b l e t o b e awarded t o t h e o t h e r s i d e ; t o go t o t h e l e g i s l a t u r e and g e t changes i n t h e law, o r g e t t h e l e g i s l a t u r e t o a p p r o p r i a t e monies t o be pa id when they had t o pay money and t h e r e was no o t h e r p r o v i s i o n f o r payment.

These were some of t h e t h i n g s , and a l s o t o serve t h e people o f t h e s tate o f C a l i f o r n i a , t o b r i n g an a c t i o n i n a n t i t r u s t i f necessa ry , on beha l f o f t h e s tate of C a l i f o r n i a , o r t o s e e k a d d i t i o n a l monies,

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

Sharp :

Zi rpo l i :

l e t ' s say, from t h e b i g o i l companies who were using s t a t e land, o r t o seek compensation on behalf of a l l users of gaso l ine i n t h e s t a t e of Cal i forn ia i f t h e o i l companies overcharged. I mean, I am using these a s i l l u s t r a t i o n s of t h e types of l i t i g a t i o n t h a t t h e s t a t e of Ca l i fo rn i a can and should engage i n .

The o rde r t h a t we talked a l i t t l e b i t l a s t time and i s p a r t of some of t h e r u l i n g s you had i n t h e AFDC cases, t h e 1970 order t o increase by 32.4 percent t h e AFDC allotments--

I changed t h a t t o 23 l a t e r . I th ink I d id .

Did you change t h a t a f t e r t h e Ninth C i r c u i t s tayed t h a t o r before? .

It may be. I ' m no t sure . Do you have a copy of t h e opinion?

No.

Let m e go through t h e t i t l e s here . [pause t o look through Lexis p r in tou t of cases]

There a r e not too many from 1970 i n there . Most of them a r e from a l a t e r per iod.

[continues t o look through papers] I don ' t know whether I have them o r not . I can ' t remember.

Anyway, what I wanted t o h i g h l i g h t was t h e f a c t t h a t t h e Ninth C i r c u i t had s tayed your r u l i n g , your order , and t h a t t h a t seemed t o r e f l e c t some disagreement between t h e d i s t r i c t cou r t and t h e Ninth C i rcu i t wi th respec t t o t h e s t a t e ' s e f f o r t t o comply wi th t h e f e d e r a l o rder .

Oh, no, t h a t s t a y i s not unusual. There was nothing unusual about t h a t .

Is t h e r e o f t e n disagreement between t h e c i r c u i t and t h e d i s t r i c t cour t with respec t t o t h i s kind of case?

There is always disagreement when t h e cour t of appeals reverses you. I don' t know what you mean by t h a t .

What I am wondering is, i n t h i s s o r t of case , when you a r e saying t h a t t h e s t a t e is no t doing what i t is supposed t o be doing with respec t t o f e d e r a l o rde r s , f e d e r a l r u l e s , i s t h e Ninth C i r c u i t sometimes more w i l l i n g t o accept t h a t s o r t of noncompliance than t h e d i s t r i c t cour t?

No, we'd say t h e r e was noncompliance. You have t o comply o r you don' t g e t t h e money. The cour t of appeals w i l l general ly say the same thing. They' l l look a t t h e f a c t s .

Comparing t h e D i s t r i c t Court and t h e Court of Appeals

Z i rpo l i : Now, t h e r e is a problem t h a t a r i s e s , o f course , sometimes i n t h e r e l a t i o n s h i p of t h e d i s t r i c t c o u r t and t h e c o u r t of appea ls and maybe w e ought t o t a l k about t h e r o l e o f t h e d i s t r i c t judge and t h e r o l e of t h e cou r t of appea ls .

I used t o make t h i s a s u b j e c t of a s e s s i o n t h a t I would hold wi th a l l of t h e newly appointed c l e r k s over i n t h e cou r t of appea ls . I would g ive them t h e po in t o f view of t h e d i s t r i c t judge. I am not going t o go i n t o t h a t i n any d e t a i l , bu t a s I saw i t , t h e primary func t i on of t h e t r i a l cou r t i s t o ach ieve j u s t i c e i n t h e p a r t i c u l a r c a se be fo re i t t o t h e e x t e n t t h a t such an end can be ob ta ined w i th in t h e framework of t h e law.

Now, t o ach ieve t h a t purpose, t h e consc ien t ious t r i a l judge may, on occasion, knowingly s t r e t c h o r bend t h e framework. He may s t r e t c h i t a l i t t l e . H e w i l l no t i n t e n t i o n a l l y break i t o r m u t i l a t e i t . H e knows t h a t h i s dec i s ion of i t s e l f w i l l not become a p a r t of corpus ju rus , w i l l r-arely be c i t e d i n an opinion of t h e Supreme Court.

So i n doing j u s t i c e i n t h e p a r t i c u l a r c a se , t h e r o l e of t he t r i a l judge i n t h e admin i s t r a t i on of j u s t i c e is t o a c t i n accordance b a s i c a l l y wi th h i s conscience and render what h e be l i eves t o be a j u s t r u l i n g . H e keeps i n mind t h a t , l e t ' s s ay ( o r a t l e a s t I do) , t h a t i n j u s t i c e i s no t one of those homeopathic drugs which, when taken i n minute q u a n t i t i e s , has a b e n e f i c i a l e f f e c t . H e tries despe ra t e ly t o avoid i n j u s t i c e .

Now, sometimes h e may be unhappy wi th t h e previous r u l i n g s of t h e Supreme Court and h e i s forced t o fo l low them. To t h e degree t h a t he can render j u s t i c e and make d i s t i n c t i o n s -when he can f o r t h a t purpose, he w i l l probably do i t .

But t h e primary func t i on of t h e cou r t of appea ls i s t o publ i sh and uphold t h e law and t o maintain i ts s t r e n g t h , c l a r i t y , and s t a b i l i t y . Now, i f i n performing i t s primary func t ion , i t is not a b l e t o e f f e c t j u s t i c e i n a p a r t i c u l a r c a se , t h e cou r t of appea ls ought neve r the l e s s t o be f i rm i n t h e f a i t h t h a t by upholding t h e law t h e cou r t w i l l g ive g r e a t e r s e r v i c e t o j u s t i c e and l i b e r t y over t h e long span of t h e yea r s . So they a r e looking a t t h e precedent t h a t they s e t a s i t governs t h e c o u r t s below i n t h e yea r s t o fol low.

I look a t t h e p a r t i c u l a r c a se t o s e e t h a t j u s t i c e i s rendered i n t h a t case , and t h a t ' s , I would say, t h e b a s i c d i s t i n c t i o n between t h e r o l e o f t h e t r i a l judge and t h e a p p e l l a t e judge. The t r i a l judge, he doesn ' t p a r t i c u l a r l y become d i s tu rbed i f h e is reversed . When he becomes d i s tu rbed i s when t h e cou r t of appea ls has no t made an ade- qua te review and a n a l y s i s of t h e f a c t s . I f t h e f a c t u a l r e c i t a t i o n s

Zi rpo l i : a r e no t i n accordance wi th what t r ansp i r ed t r u l y below, then the d i s t r i c t judge ge t s a l i t t l e d i s turbed , maybe a l i t t l e r i l e d , too , by i t .

So w e t r y t o t ake c a r e of t h a t s i t u a t i o n , i f a ques t ion of f a c t i s involved., t h e cou r t of appea ls cannot r eve r se you unless your f i n d i n g i s c l e a r l y erroneous. Tha t ' s where w e a r e a l i t t l e d is turbed . W e f e e l sometimes t h a t they don ' t t r u l y adhere t o t h i s requirement of Rule 52 of t h e Federal Rules of C i v i l Procedure and t h a t on occasion some judge w i l l s u b s t i t u t e h i s judgment f o r t h a t of t h e judge below. That is a c a r d i n a l rule t h a t they should adhere t o and adhere t o e n t i r e l y .

There i s a d i s p o s i t i o n on t h e p a r t of some judges t o phi losophize. Now, you r e a l l y shouldn ' t do t h a t . You've got an i s s u e before you and t h a t ' s t h e i s s u e you should decide. You shouldn ' t say , "Now, i f o t h e r circumstances ex i s t ed ; t h i s would b e o r t h a t would be," because you a r e looking i n t o t h e f u t u r e and you shouldn ' t do it. You have t o be c a r e f u l about t h e impact of your r u l i n g o r your dec is ion , par- t i c u l a r l y i n t h e cou r t of appea ls and even i n t h e d i s t r i c t cou r t because sometimes you have t o look beyond t h e immediate case: What is t h e impact going t o be wi th r e l a t i o n t o s o c i e t y genera l ly , o r wi th r e l a t i o n t o o t h e r problems t h a t a r i s e ?

So i f you have a p a r t i c u l a r ques t ion , you t r y t o r e so lve i t no t neces sa r i l y wi th t h e purpose of a f f e c t i n g f u t u r e l i t i g a t i o n , a t l e a s t on t h e d i s t r i c t cour t l e v e l . On t h e cou r t of appeals , however, you can look a t f u t u r e l i t i g a t i o n , bu t i t should always, i n my view ( I may be wrong on t h i s ) , should be r e l a t e d t o t h e exac t i s s u e t h a t i s before t h e cou r t .

I have seen s i t u a t i o n s i n which t h e c o u r t of appea ls has decided t o engage i n d i c t a and expand on some kind of a r u l i n g , and you f i n d t h a t t h a t ' s what t h e lawyers a r e going t o be c i t i n g t o you i n t h e f u t u r e on s i t u a t i o n s where t h a t was no t t he problem before t he c o u r t a t t h e t i m e , and i t makes i t tough f o r t h e judge. [pause]

Sharp: I ' d l i k e f o r u s t o s h i f t gears a l i t t l e b i t and t a l k more persona l ly about judges. You s t a r t e d i t o f f t h e r e i n g iv ing me those ideas about t h e d i f f e r e n c e between t h e t r i a l judge and t h e c i r c u i t . I thought w e could t a l k j u s t a l i t t l e b i t about ch ie f judges. When you came on--

Z i rpo l i : Judge Harr i s was t h e ch ie f judge. Judge Goodman had died a few months before . H i s widow gave me a l l h i s robes.

Sharp: You had known Judge Goodman then f o r some t i m e .

Z i rpo l i : I had been h i s lawyer de l ega t e f o r years p r i o r t h e r e t o and a t t he suggest ion of Judge Har r i s and h i s reques t , I had s e t up t h e ind igent defendant program.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

I don ' t know too much about Judge Goodman and I thought, i f you can do i t , w e might t a l k j u s t a l i t t l e b i t about how d i f f e r e n t Judge Goodman and Judge Har r i s were a s ch ie f judges.

Judge Goodman was a very a c t i v e ch ie f judge. [pause] I wasn't a judge then, s o I ' m j u s t bas ing i t on what I understand without having had t h e b e n e f i t o f having him a s my ch ie f judge, bu t he was genera l ly a n a c t i v e ch ie f judge. H e was very much i n t e r e s t e d i n t h e responsi- b i l i t y o f t h e j u d i c i a r y and t h e work o f t h e J u d i c i a l Conference of t h e United S t a t e s and t h e Ninth C i r c u i t and t h e work of t h e committees and i n t h e ope ra t i on of t h e cou r t and t h e r u l e s of t h e cou r t .

Judge Har r i s was a n easy judge t o g e t a long w i th a s ch ie f judge. He d i d n ' t make p a r t i c u l a r demands on t h e lawyers. H e was more i n t e r e s t e d i n t h e work of t h e cou r t than h e was, l e t ' s say , i n t h e j u d i c i a r y as a whole, whereas Judge Goodman's i n t e r e s t was a much broader i n t e r e s t . They w e r e both good ch i e f judges.

Was t h e i r l e ade r sh ip somewhat d i f f e r e n t then, would you say?

Well, t h e i r l e ade r sh ip was somewhat d i f f e r e n t because Judge Goodman was more a p t t o t ake t h e r e i n i n hand than Judge Har r i s . But Judge Har r i s was a very p l ea san t person t o g e t a long wi th , and h e was very cons ide ra t e o f t h e judges and t h e i r p e r s o n a l needs. I am no t say ing t h a t Judge Goodman wasn't ; Judge Goodman was, too. Of course, Judge Goodman was a man of s u b s t a n t i a l weal th . Ha r r i s was w e l l t o do, bu t h e w a s n o t a man of s u b s t a n t i a l wealth o r weal th comparable t o Judge Goodman, and t h a t d i f f e r e n c e i n your economic s t a t u s o f ten t imes a f f e c t s your work and t h e r o l e you want t o p lay .

Ce r t a in ly . Were t h e r e o t h e r l e a d e r s i n t h e cou r t when you f i r s t came on, o t h e r judges t h a t you were s o r t o f aware o f , bes ides Judge Har r i s who was a l e a d e r by b e n e f i t o f h i s r o l e a s ch i e f judge? Were t h e r e judges who seemed l e a d e r s ?

Oh, c e r t a i n l y . I had g r e a t r e spec t f o r Judge Wollenberg and Judge Sweigert by way of i l l u s t r a t i o n and o t h e r judges were Judge [Lloyd] Burke, who is s t i l l on our cou r t , and Judge [Ol iver ] Car te r , who l a t e r became t h e ch ie f judge.

He was ch ie f judge then a f t e r Judge Harris.

Af te r Judge Har r i s .

How would you c o n t r a s t h i s ch i e f judgeship a s opposed t o Judge Har r i s? Maybe you could j u s t s o r t o f de sc r ibe him.

There wasn't too g r e a t a d i f f e r ence . Judge Peckham, of course , has c e r t a i n i n t e r e s t s t h a t t h e o t h e r judges d i d n ' t have. For i n s t ance , one of them is t h e very f a c t t h a t we a r e indulg ing i n t h i s h i s t o r i c a l

Zi rpo l i : s tudy, which i s one of t h e pe t p r o j e c t s of Chief Judge Peckham. He was t h e man who thought of t h e i dea of having an h i s t o r i c a l s o c i e t y . He has tremendous i n t e r e s t i n those a r ea s a s they a f f e c t t h e h i s t o r y of t h e cou r t , t h e maintenance of t h e records of t h e cou r t , and th ings of t h a t charac te r .

You have t o r e a l i z e t h a t t he r o l e of t h e ch ie f judge i n p a r t changed over t h e twenty yea r s . When Judge Goodman was ch ie f judge and Judge Har r i s was chief judge, you d i d n ' t have what w e c a l l a meeting of t h e ch ie f judges of t h e metropol i tan d i s t r i c t s t h a t they have now. They a l l meet and d i scus s problems.

W e d i d n ' t have m u l t i d i s t r i c t l i t i g a t i o n . M u l t i d i s t r i c t l i t i g a - t i o n f i r s t a r o s e under Judge Harr i s wi th t h e e l e c t r i c a l equipment cases . It w a s a f t e r t h a t you had a g r e a t communication between t h e ch ie f judges of t h e va r ious d i s t r i c t s throughout t h e country. So t h i s ha s become a very s u b s t a n t i a l i n t e r e s t on t h e p a r t of our p re sen t ch ie f judge who r e g u l a r l y a t t e n d s t he se meetings. You know, when you were i n Goodman's t i m e and Har r i s ' s t i m e , you d i d n ' t par- t i c u l a r l y worry about what was going on i n some o t h e r d i s t r i c t .

Sharp: Right , bu t you do now.

Z i rpo l i : You do now.

The Craf t of T r i a l Court Judging

Sharp: This may be hard f o r you t o answer.

Sharp: A r e t h e r e some judges e i t h e r who a r e on t h e cou r t now o r who were on i t before and have r e t i r e d whom you would t h ink were persona l ly important t o you because of t h e i deas t h a t you might have go t t en from them, o r t h e s t y l e , o r something e l s e ?

Z i rpo l i : Judge Goodman, I would s ay Goodman, yes ; Judge Harr i s , because I enjoyed a very p leasan t r e l a t i o n s h i p wi th him; Judge Ca r t e r , I th ink I had h i s confidence; and then t h e o t h e r s e n i o r judges, both of them d ied , Judge Wollenberg and Sweigert , and I was c l o s e t o both of those judges .

Sharp: A r e t h e r e k inds of i d e a s t h a t t he judges s h a r e i n terms of s o r t of i n t a n g i b l e i d e a s about how judging should occur , o r how you should be a s a judge, and how you should t h ink a s a judge? Are those k inds of th ings learned from each o t h e r , do you th ink , o r i s i t no t?

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

To a small degree . I mean you t a l k t h i n g s over . You know t h a t , f o r one t h i n g , you should n o t b e s a y i n g too much. Tha t ' s one t h i n g t h a t a judge h a s t o avo id i s s a y i n g t o o much. You d i s c u s s t h a t . You don ' t g r a n t TV i n t e r v i e w s and you don ' t go around o f f e r i n g op in ions o n matters as t o which you may have some r e s p o n s i b i l i t y a t a later d a t e . You ,donf t become a sponsor f o r t e s t i m o n i a l d i n n e r s and t h i n g s o f t h a t c h a r a c t e r .

When you were young and j u s t coming onto t h e bench--

I w a s f i f t y - s i x .

A l l r i g h t , younger t h a n you are now, were you aware o f l e a r n i n g how t o b e a judge?

Oh, yes , I was aware o f i t . But as I s a i d b e f o r e , I had had t h i r t y - t h r e e y e a r s o f p r a c t i c e . I n f a c t , [ p r a c t i c i n g i n ] t h e f e d e r a l c o u r t , I g o t t o know t h e s e judges p r e t t y w e l l i n t h o s e y e a r s .

Were you aware t h a t you were l e a r n i n g from them o r were you aware t h a t they were t each ing you as o l d e r , longer-term judges than y o u r s e l f ?

W e l l , j u s t a c e r t a i n amount o f t each ing ; t e a c h i n g i n t h e s e n s e t h a t you might d i s c u s s a problem wi th them, b u t t h e a c t u a l t e a c h i n g p rocess as such, no. W e were conduct ing seminars i n t h o s e days f o r newly appo in ted judges.

That s o r t o f f i l l e d that--

Yes, and t h a t w a s o f some a s s i s t a n c e where you d i s c u s s d i f f e r e n t problems. Maybe you d i s c u s s habeas corpus , which would b e a r e l a t i v e l y new s u b j e c t f o r some new judges. It wasn ' t f o r me, b u t i t ' s a n i l l u s t r a t i o n o f what I mean. The u s e of d i scovery and t h e employment o f d i scovery procedures is amatter t h a t you might have d i scussed , too , a t t imes w i t h judges because t h a t was i n t h e t r u l y developing s t a g e .

Have you been aware a t some p o i n t i n your t e n u r e on t h e d i s t r i c t c o u r t bench t h a t you weren ' t new anymore, t h a t you had s o r t of reached--was t h e r e any y e a r o r any--

I c o u l d n ' t p o i n t t o any one. When I went on t h e bench, I was given ass ignments immediately. I mean, once i n a w h i l e , a new judge w i l l s i t w i t h o l d judges f o r a few days b e f o r e h e t a k e s on r e s p o n s i b i l i t i e s , b u t t h a t depends upon h i s p r i o r exper ience . I f you were a t r i a l judge and you came from t h e s u p e r i o r c o u r t t o t h e United S t a t e s D i s t r i c t Court , you d i d n ' t need t h a t . I f you were an o u t s t a n d i n g t r i a l lawyer-- l e t ' s t a k e Judge [William W] Schwarzer as a n example--he doesn ' t need any i n s t r u c t i o n from t h e c o u r t . He could probably g i v e us some i n s t r u c t i o n .

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zi rpo l i :

Sharp :

Zirpol i :

You have been he re a long time, and I am wondering why you s tayed so long a t t h e t r i a l l e v e l .

Well, what do you want me t o do, go home and take i t easy? I have t o do something and you have t o remember t h a t t h i s is a very con- venien t and comfortable method of r e t i r i n g , so t o speak, because a s a s en io r judge, a s I ' v e s a i d before, i n t h e back of your mind you know t h a t i f you don ' t want t o do any work, you don' t have to . So i t ' s very comfortable t o cope here, t ake on your assignments, t ake a day o f f whenever you want. I t ' s a very p leasant way t o be i n r e t i r e - ment. Otherwise, you a r e home wondering what t o do. Sure, you can work around t h e house and go o u t i n t o t h e country f o r a r i d e o r go t o t h e beach o r something, bu t t h a t was not my p rac t i ce . My p r a c t i c e was t o come here and work, so I continue t o come here.

Le t ' s t a l k about judging though. What has judging a s a job, a s a pos i t i on , what has i t o f f e red you f o r so long t h a t you have remained a t t h e t r i a l l e v e l a s opposed t o going on i n t o t h e c i r c u i t ?

Oh, a s opposed t o going onto t h e c i r c u i t ? Well, t h a t ' s because I always f e l t t h a t I was b e t t e r s u i t e d t o be a d i s t r i c t judge than I was a c i r c u i t judge. The c i r c u i t judge, you s i t t h e r e i n panels of th ree . You don ' t s e e anyone. You ge t b r i e f s , you review them, you have your law c l e r k do research f o r you, and then you s i t with them, you s i t down i n t h e conference, you decide i t , and you w r i t e an opinion.

Well, he re you go on t h e bench, you s e e t h e witnesses , you hear them, you can g e t t h e a c t i o n and t h e a c t i v i t y going on, and you make t h e dec is ion i n t h e f i r s t ins tance , and you make i t then and there . It i s n ' t a ques t ion of rece iv ing b r i e f s and reviewing them and pondering over them f o r s u b s t a n t i a l per iods of time.

Sure, we're g r a t e f u l t o t h e judges on t h e court of appeals t h a t they do t h a t , so t h a t i f we make mistakes, they can c o r r e c t them and they can ponder over them. But I am not s u i t e d f o r t h a t type of work. You have t o be somewhat more of a scholar on t h e cour t of appeals than you do on t h e d i s t r i c t cour t . You r e a l l y don ' t have t o be a s cho la r on t h e d i s t r i c t courr . So s i n c e I don ' t f i t i n t h a t c l a s s par t icu- l a r l y , I am more s a t i s f i e d with what I am doing.

I th ink you had turned down appointment t o t h e Ninth C i r c u i t .

For t h e reasons t h a t you have j u s t given me?

I wrote a l e t t e r t o rhe pres ident [Lyndon B. Johnson] i n which I s a i d t h a t I thought I was b e t t e r s u i t e d t o s e rve a s a d i s t r i c t judge. That was a very s h o r t l e t t e r and t h a t ' s j u s t about what i t s a i d .

Did you t h i n k about i t f o r a long t ime be fo r e you wrote t h e l e t t e r ? Sharp :

Zi rpo l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

No, I t h i n k I thought about i t f o r maybe two days a t t h e most. Two days.

Was i t something t h a t you d i scussed w i t h M r s . Z i r p o l i ?

Oh, yes , I d i scussed i t w i th my wi fe . I t o l d h e r I thought I would be b e t t e r su i ted- - I gave cons ide r a t i on t o t h e f a c t t h a t I am of I t a l i a n e x t r a c t i o n and they don ' t have one on t h e c o u r t of appea l s . But t h a t d i d n ' t prompt me t o t ake i t . Af t e r a l l , I had t o be satis- f i e d t h a t I would b e happ i e r t h e r e . I would make a l i t t l e more money t he r e , t h a t ' s t r u e .

This is s o r t of. d i f f i c u l t , too, b u t I wondered how, i f you could, d e s c r i b e your commitment t o judging?

You have t o remember t h a t from t h e t i m e I w a s a s s i s t a n t t o United S t a t e s a t t o r n e y , my ambi t ion w a s t o be a d i s t r i c t judge and, the re - f o r e , I achieved t h a t which I d e s i r e d , and I found t h e work ve ry p l ea san t .

From t h e p o i n t of view o f p l ea su re i n your work, of course , you had f a r more p l e a s u r e i n t h e e a r l y days. A f t e r you have been s i t t i n g on t h e bench f o r twenty-one years a r o u t i n e bank embezzlement c a s e becomes r o u t i n e , a n armed bank robbery c a s e becomes r o u t i n e . P r e t t y soon a n t i t r u s t l i t i g a t i o n becomes somewhat r o u t i n e , a l though t h e n a t u r e o f t h e product involved o r t h e p a r t i e s involved may change.

So t h e work is no t as e x c i t i n g as i t used t o be. I t h i n k I have t o t r u t h f u l l y s a y , t h a t . Of course , I had a l o t o f committee work and I found t h a t e x c i t i n g . But w i th t h e passage of t ime, you have less d e s i r e t o t r a v e l , . too , from p l ace t o p lace .

Do you t h i n k you would have tu rned o u t d i f f e r e n t l y i n terms of t h e k inds of concepts and a t t i t u d e s t h a t you brought t o judging i f you had been a d i s t r i c t c o u r t judge somewhere e l s e i n ano ther state, i n F l o r i d a o r New York o r Kansas o r somewhere?

Not p a r t i c u l a r l y ; on ly t o t h e degree t h a t people may have d i f f e r e n t ou t looks on c e r t a i n types of cr imes i n o t h e r p a r t s of t h e country . It i s t r u e t h a t w e i n C a l i f o r n i a may n o t n e c e s s a r i l y look upon c e r t a i n types of crime w i t h t h e same cons ide r a t i ons t h a t would apply i n F lo r i da o r o t h e r states, bu t I don ' t t h i n k t h a t t h e r e would b e any b a s i c change.

I f I was born and r a i s e d i n some o t h e r s t a t e and s u b j e c t t o a d i f f e r e n t environment a l l a long, i f I hadn ' t gone t o Boa l t H a l l , i f I hadn ' t been a Young Democrat, i f I hadn ' t been, you might s ay , a

Z i r p o l i : l i b e r a l , i f I had grown up as a Republican c o n s e r v a t i v e , I might have some d i f f e r e n t views.

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

Sharp :

Z i r p o l i :

I a m wondering because t h e Northern D i s t r i c t i s cons idered , a t l e a s t by people o u t s i d e o f t h e Northern D i s t r i c t , f a i r l y s p e c i a l i n t h e s e n s e t h a t i t is l i b e r a l , and l i b e r a l i n some o f t h e a r e a s t h a t we have t a l k e d abou t i n terms o f c o n s c i e n t i o u s o b j e c t o r s and s o on. .

I t h i n k we may be considered a l i t t l e more l i b e r a l . A s f o r t h e o t h e r d i s t r i c t s , I don ' t know.

You have been s e e n a s i n n o v a t i v e i n some areas t h a t we have t a l k e d abou t . Is t h a t a problem f o r you?

Not a g r e a t problem. I mean, when you s a y " innovat ive ," what you a r e s a y i n g i s I might b e a l i t t l e more o f a n a c t i v i s t judge, f o r one t h i n g , and a n o t h e r th ing , you have t o remember t h a t changing t imes causes changes i n p o i n t o f view even on c o n s t i t u t i o n a l q u e s t i o n s . The c o n s t i - t u t i o n h a s t o b e i n t e r p r e t e d i n p a r t w i t h t h e t i m e s s o t h a t they have some bear ing .

Does i t g i v e you any s e n s e of p e o p l e ' s e x p e c t a t i o n s o\f you i n terms of your judging?

People ' s e x p e c t a t i o n s ? I assume t h a t t h e y ' l l expec t me t o b e f a i r and t h a t they expec t m e t o b e reasonab ly cour teous t o everyone i n t h e courtroom. T h e i r e x p e c t a t i o n s o f m e may d i f f e r from a n o t h e r judge. They know t h a t I ' m n o t a r e a l s t i c k l e r f o r t h e r u l e s . Some o t h e r judge may be . I f t h e b r i e f is a h a l f a n hour l a t e r , a n o t h e r judge may n o t a c c e p t i t . I have a d i f f e r e n t approach, t h a t ' s a l l .

I n your terms of your b e i n g l i b e r a l , now t h e r e i s a preceden t t h a t you are l i b e r a l because of t h e k inds of d e c i s i o n s t h a t you've made i n a l o t o f d i f f e r e n t c a s e s . So people s o r t o f have t h a t e x p e c t a t i o n t h a t you wi l l - -

They have t h a t e x p e c t a t i o n , b u t a t t imes they are t e r r i b l y d i s a p p o i n t e d . You have an e x p e c t a t i o n t h a t because someone i s l i b e r a l you are going t o b r i n g , l e t ' s say, a d i s c r i m i n a t i o n c a s e [ t o him], and i t d o e s n ' t have any m e r i t . I may be a l i b e r a l , b u t , boy, t h a t ' s going t o b e thrown o u t . I ' m n o t going t o permit my l i b e r a l views t o overcome t h e obvious i n t h e way of a n unwarranted c a s e , o r one t h a t i n no way j u s t i f i e s t h e r e l i e f sought . I n o t h e r words, I ' m n o t going t o e v e r s t r e t c h t h e f a c t s t o ach ieve a d e s i r e d r e s u l t i n t h e l a w . Once i n a w h i l e t h a t happens a t t h e a p p e l l a t e l e v e l . T h a t ' s what you worry about , t o o , as a d i s t r i c t judge, t h a t someone a t t h e a p p e l l a t e l e v e l , i n o r d e r t o b e t t e r e s t a b l i s h a c e r t a i n p a r t i c u l a r l e g a l p r i n c i p l e (no t t h a t t h e r e is any th ing wrong w i t h t h e p r i n c i p l e ) , may s t r e t c h t h e f a c t s o r i n d u l g e i n t h e e x e r c i s e o f d i s c r e t i o n o r judgment, which i s

Z i r p o l i : w i t h i n t h e province o f t h e d i s t r i c t c o u r t ; they may i n d u l g e i n i t themselves .

Sharp: Have you e v e r thought that you have a j u d i c i a l phi losophy?

Z i r p o l i : Have I e v e r though t t h a t I had a j u d i c i a l phi losophy? My b a s i c j u d i c i a l phi losophy i s t h a t I j u s t pray t o God t h a t I always render j u s t i c e , t h a t I h a v e n ' t t r e a t e d someone improper ly , and t h a t i f I have, t h a t t h e good Lord w i l l f o r g i v e m e . [ l aughs s o f t l y ]

Sharp: O r that y o u ' l l b e reversed!

Z i r p o l i : Well, I ' v e mentioned t h a t . I have no q u a r r e l w i t h b e i n g r e v e r s e d i f I a m wrong. The o n l y t i m e I q u a r r e l w i t h be ing r e v e r s e d i s when they m i s i n t e r p r e t t h e f a c t s b a s i c a l l y . It's l i k e one o f t h e d i s t r i c t judges who went o n t h e c o u r t o f a p p e a l s . When h e g o t t h e r e , h e was t a l k i n g t o h i s c o l l e a g u e s abou t a c a s e t h a t h e had been r e v e r s e d on, and h e s a i d , "I would f i n d no o b j e c t i o n t o t h e r e v e r s a l i f t h e f a c t s o n l y were as you had found them." H e was e x p r e s s i n g t h a t same thought t h a t I mentioned.

Sharp: Do you have some o t h e r i d e a s ?

Z i r p o l i : No, I d o n ' t have any o t h e r i d e a s p a r t i c u l a r l y . As I s a i d , I a m a l i t t l e b i t d i s t u r b e d abou t some t r e n d s i n l i t i g a t i o n . That i s one t h i n g t h a t d i s t u r b s m e and I t h i n k t h a t t h e law s c h o o l s and everybody ought t o c o n c e n t r a t e o n f i n d i n g s i m p l e r methods and p rocedures f o r more m e d i a t i o n and n e g o t i a t i o n and l e s s a c t u a l c o u r t con t roversy .

Sharp: A r e t h e r e any c l a s s e s o f f e r e d i n l aw s c h o o l i n a r b i t r a t i o n o r media t ion?

Z i r p o l i : Well, t h e y ' r e do ing t h a t , I unders tand , some o f i t i n Harvard. Now, I d o n ' t know i f o t h e r i n s t i t u t i o n s are doing i t .

Sharp: But t h a t is cons ide red p r e t t y non-mainstream, t o have t h a t s o r t o f c l a s s t a u g h t ? ,

Z i r p o l i : Of course , t h e r e is always t h e thought t h a t i t might b e w i s e t o r e q u i r e a y e a r o r two o f a p p r e n t i c e s h i p b e f o r e you a c t u a l l y become a lawyer . I n o t h e r words, a f t e r you g radua te , make you work i n a l aw o f f i c e f o r a y e a r o r some p e r i o d o f t h a t n a t u r e . I a l s o b e l i e v e t h a t a f t e r you a r e appo in ted a s judge of t h e c o u r t o f a p p e a l s , i f you have never had p r i o r t r i a l exper ience , you shou ld b e r e q u i r e d t o s e r v e i n t h e d i s t r i c t c o u r t f o r a t l e a s t t h i r t y days .

Sharp: That would g i v e peop le q u i t e a n e y e opener , I would t h i n k .

Z i r p o l i : Oh, yes . It h a s been sugges ted . Time and a g a i n i t h a s been sugges ted , b u t they h a v e n ' t done i t y e t .

Sharp: Are the re o t h e r s o r t s of comments t h a t you would l i k e t o make about your work?

Zi rpol i : Not t h a t I haven't expressed.

Sharp: Then those a r e a l l o f my quest ions.

Z i rpo l i : A l l r i g h t .

Sharp: I am thankful t h a t you had t h i s much time t o spend wi th me.

Zi rpol i : I don' t know how much i n t e r e s t t h e r e w i l l be i n what I had t o say, bu t anyway, I have t r i e d my bes t .

Transcriber: Michelle S taf ford F ina l Typist: Sam Middlebrooks

TAPE GUIDE -- Alfonso J. Z i r p o l i

In te rv iew 1: September 9 , 1982 t a p e 1, s i d e A t a p e 1, s i d e B t a p e 2, s i d e A [ s i d e B n o t r ecorded]

I n t e r v i e w 2: October 14 , 1982 t a p e 3, s i d e A t a p e 3 , s i d e B t a p e 4 , s i d e A t a p e 4 , s i d e B

In te rv iew 3: November 2, 1982 t a p e 5 , s i d e A t a p e 5, s i d e B t a p e 6 , s i d e A t a p e 6 , s i d e B

I n t e r v i e w 4: November 24, 1982 t a p e 7 , s i d e A t a p e 7, s i d e B t a p e 8 , s i d e A t a p e 8 , s i d e B

In te rv iew 5: February 7, 1983 t a p e 9 , s i d e A t a p e 9 , s i d e B t a p e 1 0 , s i d e A t a p e 1 0 , s i d e B

In te rv iew 6: February 24, 1983 t a p e 11, s i d e A t a p e 11, s i d e B t a p e 1 2 , s i d e A t a p e 1 2 , s i d e B

I n t e r v i e w 7: May 5 , 1983 t a p e 1 3 , s i d e A t a p e 1 3 , s i d e B t a p e 14 , s i d e A t a p e 14, s i d e B

I n t e r v i e w 8: May 1 2 , 1983 t a p e 15, s i d e A t a p e 15 , s i d e B t a p e 1 6 , s i d e A t a p e 16 , s i d e B

APPEND'IX

INDEX - Alfonso J. Z i r p o l i

Administrative Office of t he Courts, 119-20, 163

Aid t o Families with Dependent Children, 205-07, 225-28

Alca t raz I s land prison, 51-56 Ald i se r t , Ruggero J., 55, 149a, 158 Alien Enemy Control Board, 58-75 Alioto, John, 136 Alioto, Joseph L., 126-27 American Bar Associat ion, 203 American C i v i l L i b e r t i e s Union, 75,

77-78 amicus cur iae , 70, 78, 180-81 Andriano, Sylves te r , 61, 71 Anglo-California Bank, 56-58 a n t i t r u s t , 124-47, 156, 165, 176,

21 9 A n t i t r u s t Procedures and Pena l t i e s

Act, 140 appointments t o o f f i c e , 25-26 See

a l s o j u d i c i a l appointments - Archer , Richard, 129-30 a t torneys , 102-06, 123-24, 143,

145, 162, 173-75, 198, 209-11, 23 7

f ee s , 135-37, 190-91

Ba i l Reform Act (19661, 150, 155, 218

Bal l , Joseph, 107 Bank Merger Act (1960, 19661, 128 Bank of America, 23, 24-25, 62,

128-30 Bank of I t a l y , 23, 25 bankruptcy, 55, 166 Bar Association of San Francisco,

32, 108, 160 Barclay, Thomas S., 59-61, 64-65 Bay Area Rapid Trans i t (BART), 110 Behrens, Ea r l , 95-96 Bendetsen, Karl, 69 Bennett, James, 193 Besig, Ernest , 77 Bourquin, George M., 142-43 Brady, Matthew, 26

Brown, Edmund J., Sr., 114-16, 203 See a l s o Brown Commission --

Brown, Harold, 115-17 Brown Commission, 150, 155 Robert Pack Browning v. Melvin

Laird, etc. , e t a l , 177-78, 185-86, 188

Burger, warren, 143, 156

Calamandrei, Piero, 174 Ca l i fo rn i a S t a t e

Corrections, Department o f , 221- 2 2

Human Rela t ions Agency, 206 Personnel Board, 8 5 Supreme Court, 199

Ca l i fo rn i a Truckinn Associat ion v. Brotherhood of Teamsters, 141

campaign f inance, 113-14 campaign management, 71, 95-98,

108, 113-14, 117-18, 202 Cathol ic church, 179-88 Chase, John Paul, 38, 40-41, 48-49 .

Christopher, George, 108, 113, 116 Clark, Tom C., 64-65, 140 Clu tche t te , John Wesley, 220-21 Cochran, Anna, 47-49 Col l ins , Wayne M., 75-77, 85, 90-93 Columbus Civic Club, 97-98 conscient ious objec t ion , 177-90 consent decree, 146 court of appeals, 229-30, 234' Criminal Code Reform Act of 1978,

161 Criminal J u s t i c e Act, 159-60 Cries , Vernon E., 42

d'Aquino, Iva Toguri, 77, 89-93 death penal ty, 223-25 Democratic na t iona l convention,

1936, 95 Democratic par ty, Democrats, 95-98,

113-14, 118 Denman, William, 70, 79, 80-82

DeWitt, John, 63-65, 69, 76, 79, 84-85

DiMaggio, Joseph P., 23-24 DiMassimo, John, 116-18 discovery, 123-26, 134, 136, 139,

149, 160-61, 209-13, 216, 233 d i v e r s i t y j u r i s d i c t i o n , 216-17 Dolan, Robert, 111-12 Douglas, William O., 164, 179-80,

182-83 d r a f t

boards, 194-98 r e s i s t a n c e , 168, 175, 194-98

Edwards, George C,, Jr., 150, 164 Egan, Frank, 26 Ehr l ich , Jake, 37, 46 Eisenhower, wight D,, 95-96 elect ions

1931, 71 1932, 95 1942, 202 1952, 96 1956, 108 1958, 108, 113-14 1960, 118

e l e c t r i c a l equipment cases , 124-26, 232

Endo, Mitsuye, 80 Engle, C l a i r , 97-98, 115, 117 Ennis, Edward J., 65, 79, 85 , 119 evidence, 57-58, 67-68, 164 See

a l s o discovery - E x p a r t e Endo, 73, 77 - Ex p a r t e Qu i r in , 74 - Ex p a r t e Stidman, 82 -

Fahy, Charles , 53 Fascism, 58, 62 Faulkner, Harold, 29, 33, 106-07,

173 Fay, Red, 98, 118 Fazackerly, Don, 113 Federal Magis t ra tes Act, 160-61 Federal Rules of C i v i l Procedure,

122-24, 149-70, 230 Federal Rules of Criminal Procedure,

149-70 F e r r i t e r , William, 38, 86

Fleishhacker , Herbert , 56-58 Herman D. Franck e t a l . v. The

Carborundum Compan~ e t al . , 138, 144

f r e e e n t e r p r i s e , 147 Fuidge, Richard, 47-48 Furth, Frederick P., 131-34

Giannini, A. P., 24-26, 94, 95, 100, 129

G i l l i s , Helen, 39, 47-49 G i l l i s , Les t e r M., 27, 38-51 Goodman, Louis, 102-06, 215, 230-32 P r i v a t e Wil lard Goodwin, I1 v.

Melvin La i rd , etc. , e t a l . , 177-78, 186

Graham, William, 39-41, 43, 45 Grossman, Aubrey, 194-95, 198

habeas corpus, 38, 51-56, 78, 81, 82, 83-88, 120, 158, 177-79, 223, 227, 233

Halley, James L., 111 Har r i s , George, 103-04, 122, 124-

25, 231-32 Hennessy, Frank, 47, 57, 85, 92 Hinckley, John, 153-54 Hirabavashi v. United S t a t e s , 73,

81, 87 Hitler, Adolph, 19 Hokobei Society, 59 Holidav v. Johnson, 55 Hughes, Howard, 125, 139, 146

I1 Cenacolo, 25, 100-01 I l l i n o i s Brick v. I l l i n o i s , 133 I n t h e Matter of t h e Applicat ion of --

Mitsuve Endo f o r a w r i t of habeas corpus, 72, 75, 77-78, 8 3-88

Ince, Wallace E., 89-93 indigent defendant program, 102-06,

159-60, 210-11 ind iv idua l calendar , 103, 105-06,

211-12 I t a l i a n American Chamber of

Commerce, 99 I t a l i a n Mutual Benefi t Society, 98-9

Japane se-Amer icans internment of during World War 11,

58-88 , 204-05 Jehovah's Witnesses, 178-88, 190,

198 Johnson, Frank, 222 Johnston, James, 51-52 judging, 119-22, 129, 142-43,

164, 176, 177-90, 195-96, 201, 203, 209-38

j u d i c i a l appointments, 98, 115-19, 202-03

J u d i c i a l Conference of t h e United S ta t e s , 55, 104, 106, 142, 148- 70, 172, 217

Advisory Committee on Federal Criminal Rules, 148-70

Committee on t h e Administration of t he Criminal Law, 156-70

Habeas Corpus Committee, 158 j u r i e s , 57, 122, 145, 175-77, 188,

210, 217-19, 224-25

Kaiser Aluminum, 131-33 Kennedy, Edward M., 156-57 Kennedy, John F., 98 Kennedy, Robert F., 98, 115-19,

150, 218 Kenney, Robert W., 70 Khrushchev, Niki ta , 112-13 Korematsu, Toyosaburo Fred, 80 Korematsu v. United S ta t e s , 75-83,

8 7

La Guardia, F io re l lo , 28-30 law c l e rks , 199-200 Leider , Clarence, 49 Leonardo da Vinci Society, 99 Lindbergh law, 44 Lindley, Walter C., 43 Louderback, Harold, 27-33, 56-58 Lynch, Thomas C., 42-43, 114, 118

Mc Kay, James, 39-41, 43, 45 McPike, Henry H., 46, 48, 50 Mai l l ia rd , William S., 111 Malone, William, 95, 118 M ~ R R v. Ohio, 213-15

Marin Shipyard, 64 Mazet , Eugene ("~renchy") , 41 media

newspapers repor t ing crime, 49-50 James Andrew Mil ler v. Melvin Laird,

a s Secretary &,Defense. e t a l . , - 177-78, 186

Miranda v. Arizona, 213-215 Mitchel l , Aaron, 225 Moreno, Anthony ("~oap") , 40-41,

45-46 Mosk, Stanley, 113-14, 117 Murphy, Dan C., 25 Mussolini, Benito, 19-21, 61-62, 74

Negri, Joseph Raymond atso so), 27, 38-51

Nelson, "Baby Face" See G i l l i s , Les te r M.

New Order of Cincinnatus, 114 Nissho Iwai, 140

O'Connor, J. F. T., 25, 94 Order of t h e Sons of I t a l y , 98-99,

116 Orrick, William, 115-16 Owens, Edwin J., 59-61, 64-65

P a c i f i c Far East Line, 136, 139 Palmer, El izabeth, 206, 226 Parente, Joe, 39-40 Pea r l Harbor, 58-59, 65, 74, 87 Peckham, Robert H., 178, 197, 231-

32 Pedr i n i , Armando, 24 Perkins v. Standard Company of

Cal i forn ia , 138 P e t r i , Angelo, 102 Phelan, Arthur, 35-37 Poole, Ceci l , 115-16 Pope, Walter L., 129 P r a t t , Arthur, 49 pr i son condit ions, 213, 220-25, 227 pr i soner of war cases, 89-94 probation, 192-93, 195 Purce l l , James, 84-87

Rancho Drive I n Theatre Corv. v. Fox West Coast Theatres Corv. and -- United Artists Theatre C i rcu i t , Inc., 127

Reagan, Ronald, 203, 205-07 Republican party, Republicans, 95-

97 Rizzo, Ralph, 47-48 Robinson-Patman Pr i ce Discrimination

Act, 131-32, 136 Robson, Edwin A., 126 Roche, Michael, 86-87, 91-92 Roche, Theodore, 57 Roosevelt, Franklin D., 25, 95 Roosevelt, James, 96 Rossi, Angelo, 70-71, 98-100

St. Sure, Adolphus F., 31, 49, 79- 8 0

San Francisco Board of Supervisors, 108-14 Candlestick Park, 110 Chinese i n , 101-02 during the Depression, 19-26 d i s t r i c t a t torney , o f f i c e o f , 25-

26 I t a l i a n s i n , 1-8, 19-23, 60-61,

97, 101-02 p r o s t i t u t i o n in , 35-37 Sharp Park, 59-60, 67 U.S. a t torney , o f f i c e o f , 26, 34-

88, 91-93 during World War 11, 58-88

San Quentin prison, 220-25 Santa R i t a pr ison, 213, 220-23 Schivo, William, 47-48 Schwarzer, William W, 161, 167, 233 sentencing, 120, 154-55, 165, 167-

69, 190-93, 195-96, 216 Shelley, Jack, 116-17 Sherwin, Marvin, 144-45 Spain, Johnny, 220-22 Speedy T r i a l Act, 155-57, 210 P r iva te Michael J. Stauf fe r v.

Melvin Laird. Secretary of Defense, e t a l . , 177-78

Stevenson, Adlai, 95-97 S t r i tma t t e r , Hans, 39-40 Stroud, Robert ("~irdman") , 53-54

Sweigert, William T., 78, 122-24, 129, 161-63, 167, 171-73, 200-04

Swig, Benjamin, 97 Svmbolic Control v. In t e rna t iona l

Business Machines Corvoration, 141-42

Taaffe, John, 42, 49, 173 Tokyo Rose See d'Aquino, Iva Toguri Tolan, John H., 66

United S t a t e s army, 178-88 Attorney General, 135, 169-70 Congress, 28-33, 128-29, 148-

70, 177, 185, 217 Selec t Committee Inves t iga t ing

National Defense Migration (Tolan committee), 66, 70

House Jud ic i a ry Corni t tee, 159 Federal Bureau of Inves t iga t ion ,

37-47, 56, 58-75, 91, 198, 203 J u s t ice., Department o f , 64-65,

67, 79, 85, 128, 135, 153, 159, 197

navy, 62 Selec t ive Service, 178-88, 190,

191, 196-98 Senate, 117

Senate Judic iary Committee, 148-49, 159

War Department, 73 United S t a t e s Appeals Court, Ninth

C i rcu i t , 79-81, 84, 136-38, 144, 204, 206, 221, 228, 234

j u d i c i a l conference, 104, 106-08, 166, 171-72, 215-17

United S t a t e s D i s t r i c t Court f o r t h e Northern D i s t r i c t of Cal i forn ia , 27-88, 89-94, 102-06, 115-238

United S t a t e s of America v. Crocker- Anglo National Bank, Ci t izens Bank. & Transamerica Corporation, 128-30

United S t a t e s Supreme Court, 53-55, 73-74, 78, 79, 80-81, 85, 88, 132-33, 143, 166, 176, 179-88, 201, 210, 214, 216, 221, 223-25

United S t a t e s Temporary Emergency Z i rpo l i , Armando, 23, 129 Court of Appeals, 143 Zi rpol i , S t e l l a Graziani, 20, 22-23

U.S. v. Bowen 184 - - -s Zi rpo l i , Vincenzo, 19, 74-75 U.S. v. Fred Toyosaburo Korematsu, ---

73, 75-83 U.S. v. James Francis McFadden, ---

179-89 U.S. v. Joseph Ray Nenri, a l i a s , & --

a l . , 34 - U.S. v. Seener, 185-86 -- U S v Won~ See Duck, 35-37 ..A

University of Cal i forn ia , 25 Boalt Hall , 199-204

Vandegrift , Lucian, 206 Vietnam war, 177-92, 194-98, 200-04 Volunteers f o r Be t t e r Government,

108

Walker, El isha, 24 Walker v. Johnston, 55 Waley v. Johnston, 55 Wall Products Co. e t a l . v. National -

Gypsum Co. e t a l . ( 3 cases) , 130-37, 146

war powers, 76, 85, 204-05 War Relocation Authori ty, 71-72, 76 Warren, Earl , 70-71, 78, 172, 201-

03, 210 Weigel, Stanley, 184 Wenig, Herbert, 78 White, Byron R. ("Whizzer") , 116-17 Wilbur, Cur t i s D., 81-82 Williams, Thomas C. ("Tobe"), 40,

42-43, 49 Winchester Drive-In Theatre. Inc.,

e t a l . v. Twentieth Century-Fox - - A

Film Company e t a l . , 126-28 - wiretapping, 170 Wollenberg, Albert C., Sr., 30,

122-24, 161, 172, 191-92, 206, 226

World War 11, 58-93, 101, 190-91, 204-05

Yasui v. United S ta t e s , 73, 87 -- Young Democrats, 95 Youth Correct ions Act, 155-56, 161

Sarah Lee Sharp

B.A., University of California, San Diego, 1971, vith major in history.

M.A., University of California, San Diego, 1975, vith major field in United States history; Teaching Aaeirtant in Comparative Americas, 1972-1975.

Ph.D., University of California, San Diego, 1979, vith major field in United States history; dirsertation entitled, "Social Criticism in California During the Gilded Age."

Interviever-Editor for Regional Oral History Office, 1978 to the present, specializing in California political and legal history.

Date post:	29-Jun-2020
Category:	Documents
Upload:	others
View:	2 times
Download:	0 times

Regional Oral History Office University of California ...Northern District of California is a...

Documents