Washington Lawyer

Judge Matthews and the Young Prosecutor

From Washington Lawyer, July/August 2015

By Jacob A. Stein

spectatorWhen a few members of the old criminal bar get together, the conversation inevitably ends by condemning the 1987 so-called sentencing guidelines.

Two of the prominent judges, William Bryant and Harold Greene, who others looked up to, decided to reject a criminal case because of the guidelines.

Judge Bryant had more experience on sentencing probably than any of the other judges. In his career, he was a defense counsel and a prosecutor.

Occasionally in the guidelines conversations, the name Judge Burnita Shelton Matthews came up. Judge Matthews served before there were any guidelines. She dealt with the facts, the law, and the future of the defendant. Judge Matthews (1894–1988) was, in 1950, the first woman to serve as a federal judge.

Judge Matthews commenced her career as a music teacher. After completing the program at the Cincinnati Conservatory of Music, she enrolled in law school, graduated, and then passed the bar in 1920. When she wished to join the local legal associaton, her application and dues check were rejected. She, along with other women lawyers, then formed their own bar associations. 

As an attorney, she served as counsel to the National Woman’s Party, representing it in a high-profile case where she obtained the largest condemnation settlement awarded by the government at the time, $299,200. Judge Matthews heard many other high-profile cases.

In criminal cases, when a defendant was convicted, she invited into her chambers the prosecutor, the defense counsel, and the parole officer. Judge Matthews believed sentencing was one of the most important elements in the criminal justice system. If there were to be prison confinement, consideration must be given to suggest ways after the sentence for the defendant to be a productive member of society.

Now let me recall a case in Judge Matthews’ court. It was a criminal case with a young prosecutor who wanted to make a name for himself.

The case involved a 65-year-old woman who said she was raped. There were records of her confinement in St. Elizabeths Hospital because of her strange behavior.

As the trial went on, the ambitious prosecutor put the woman on the witness stand. It turned out that she was enjoying being the most important person in the court. As she testified, she had a difficult time describing how, when, and where the rape took place.

Judge Matthews decided that she herself must ask the complainant the questions concerning how the rape occurred.

The witness was unable to clarify any facts, but with a little prodding from Judge Matthews, the witness looked around the courtroom and at the 12 people on the jury and said, “That man [pointing to defense counsel] rushed at me with his subpoena.”

As that was said, two jurors had big grins. The deputy marshal, who was sitting behind the defendant, joined in and said, rather loudly in the courtroom, “So you see we deputy marshals really know how to serve a subpoena.”

Judge Matthews called a recess. She wished to talk to the lawyers. In her chambers she said to the prosecutor, “Did you see that Jurors 4 and 5 were smiling?” She then said to the young prosecutor to call his boss to see if the case should go on. She took a recess and resumed at 2 o’clock.

At 2 o’clock, Judge Matthews brought together in her chambers the young prosecutor, the defense counsel, and the senior prosecutor. She suggested that the case should not go on, considering that people on the jury were amused and the witness did not say she was raped.

The senior prosecutor advised the young prosecutor that the judge’s recommendation is a reasonable resolution of the case, and she is going to dismiss the case.

The senior prosecutor said to the young prosecutor that he will get a better case, win it, and be on his way like other prosecutors, to get into politics.

Judge Matthews liked to hire the best and brightest women law clerks. The first clerk, Claire Whitaker, now with the U.S. Attorney’s Office, was an example for the clerks who followed. Two of those clerks deserve mention here, Ellen Lee Park, who was hired in about 1956, and A. Patricia (Pat) Frohman, who came a few years later, in 1964.

Both Ms. Park and Ms. Frohman were trailblazers for women, like Judge Matthews was. They both became assistant U.S. attorneys in the Civil Division of the U.S. Attorney’s Office for the District of Columbia. In those days, it was considered unseemly to work in the Criminal Division.

Ms. Park became deputy chief of the Civil Division and served in that capacity for two decades, leaving her mark and her sharp eye for typographical errors and proper grammar on every federal civil litigator who passed through that office. Ms. Frohman served three decades in the Civil Division and was instrumental in creating the Financial Litigation Unit in the division, which oversaw the collections of debts owed the federal government. In 1974, Ms. Frohman was named Woman of the Year by the Women’s Bar Association. When she retired, in about 1993, Ms. Frohman hung out her shingle and practiced law—something she always wanted to do.

Both Ms. Park and Ms. Frohman emulated Judge Matthews’ intelligence, grace, and insight.

Reach Jacob A. Stein.