Washington Lawyer

Legends in the Law: Joyce Hens Green

(Appeared in Bar Report, February/March 1999)

A 1951 graduate of the George Washington University National Law Center, Joyce Hens Green spent 17 years as a private practitioner before joining the bench in March 1968, where she has served for the past 31 years: 11 years at the D.C. Superior Court, and 20 years as a federal judge at the U.S. District Court for the District of Columbia and the U.S. Foreign Intelligence Court. In 1979 she was named "Woman Lawyer of the Year" by the Women’s Bar Association of the District of Columbia, and since then has received an Honorary Doctor of Laws from George Washington University, the Intelligence Under Law Award from the National Security Agency, the Edmund J. Randolph Award from the U.S. Department of Justice, and the Agency Seal Medallion from the Central Intelligence Agency. A devoted jurist, Judge Green is also the proud mother of three children: Michael, June, and James. Her husband, Samuel Green, passed away in 1988.

Bar Report: Did you grow up knowing that you wanted to pursue a professional career?
Joyce Hens Green: Yes. It was a family expectation. My father was a psychiatrist and he wanted me to follow in his footsteps and become a medical doctor. From the earliest time I can remember, it was unquestioned that my brother and I would go to college and that we would enter a profession—hopefully medicine. Back in the ’40s and ’50s when I was growing up, you didn’t see a lot of women in the higher professions the way you do today, but my parents treated both their children equally. They encouraged us both, and I give great credit to them for that.

BR: Did you try to fulfill your father’s hope that you would become a doctor?
JHG: Yes, but only briefly. I graduated from public high school at the age of 16, just as World War II was coming to an end, and I entered college at the University of Maryland. I was the only woman in the pre-med curriculum, and by the end of the first semester I had decided that medicine was not going to be my lot in life. I came home and discussed this with my parents, who recommended that I go ahead and complete the pre-med curriculum, and that if at the end of that time I did not want to proceed to medical school they would support any decision I made. I followed that recommendation, completed the three years of pre-med studies, knowing all the while that I had no intention of going to medical school. My parents were terribly disappointed when I announced that decision. But, true to their word, supportive. I graduated with a major in psychology and a minor in English. That left me unequipped for much—unless I went on to obtain a graduate degree, which didn’t appeal to me.

BR: When did the idea of becoming a lawyer hit you?
JHG: I’m hesitant to tell you how rashly I acted. On the shortest possible notice—one week before the semester began—I sent my application in to one law school, the University of Maryland. I was accepted on two days’ notice, started classes, and lo and behold, discovered that I loved law school. The dialogue, the debate, the case studies, the intellectual challenge—I loved all of it. The law was clearly the calling I had been searching for without even knowing it.

The following year I transferred to George Washington University Law School and, by doing double summer sessions, I graduated in two years. My mother was terminally ill with cancer at the time, and I received special permission to take the bar exam before I graduated from law school, so that I could become a lawyer before she died. I passed the exam and was admitted to the bar one week before graduation. My mother was enormously pleased and proud, and I was grateful that I could have a positive impact on her last moments.

BR: What sort of law did you practice?
JHG: I hung out my shingle and began to practice law. This was 1951, and I was naïve enough to think that I could make a go of it. I was my own typist, my own messenger, my own receptionist—whatever it took, I went at it with all the energy I had. I wanted to be a litigator, which was a bit surprising because I’m innately shy. I pushed myself to overcome that, and within a year I had a practice that was fully self-supporting.

BR: What kind of cases did you handle?
JHG: On the civil side my clients had primarily estate, personal injury, and domestic matters. I also received a number of court appointments in criminal cases. In those days the judges didn’t ask the lawyers if they would accept an appointment, you just received an order from the court that said, "You are hereby appointed as an attorney to represent John Smith." The court appointments included some felony cases, which were quite a responsibility for someone just out of law school. Because I was a sole practitioner, I didn’t have any colleagues to confer with or get advice from. I remember going down to the criminal court just to sit and watch, to see what I could pick up and learn. I had to thrust myself into the milieu and do the job that needed to be done. I handled a large number of criminal cases, and became quite comfortable going to court on behalf of my clients.

BR: Did you find that you felt empathy and compassion for the criminal defendants you were required to represent?
JHG: Yes, I did feel empathy and compassion. I also tried to be realistic. I realized that some of them had done the acts they were accused of and that some sort of punishment was going to result as a consequence. But no matter what my personal feelings were, my job was to be an advocate for the person I was appointed to represent. I took that role seriously, knowing that ultimately it would be the judge or jury that would make the final determination as to verdict. It is important to feel compassion for your clients, be it a civil or criminal matter. I always found that feeling connected to my client made me dig in even harder and work more diligently.

BR: Was the practice of law much different in the 1950s than it is today?
JHG: Oh, yes, enormously so. The most striking difference is the lack of civility and lack of personal satisfaction you see among lawyers today. Back then we were always civil with one another. Opposing counsel treated each other with courtesy and respect. That made the practice of law challenging and fun. You fought mightily for your cause but, at the end of the day, there was no animosity. One of the big differences was you could trust the word of your adversary. Your handshake was your bond. If you ever broke that, you’d be in grave trouble—a pariah in the profession.

Today when I see lawyers writing self-protective letters back and forth to document what was said in a telephone conversation because they distrust opposing counsel, or when I see them threatening one another in chambers with Rule 11, I feel sorry for them. There is much dissatisfaction within the profession that I didn’t see when I was starting out. It is astonishing and deeply troubling that so many lawyers are dropping out to pursue careers that are entirely divorced from the law.

BR: Why do you think that is?
JHG: The legal profession has become much more business-oriented. There are enormous expenses associated with the operation of a law office, particularly with the technological advances that have taken place. People have become focused on the bottom-line. There is huge growth in salaries and intense competition for jobs and for clients. Quite frankly, I do not think I would enjoy the practice of law now. So much of what made it fun has disappeared. In the bygone days, lawyers tended to focus on their clients needs, not just billable hours, and because of that they derived more professional and personal fulfillment. Because everyone treated the other with courtesy and respect, the process was truly rewarding.

BR: Did you ever feel that you were discriminated against because you were a woman?
JHG: Yes, on occasion. There were not many women lawyers back then, and all of the judges, save one, were men. They treated me with respect and dignity, but it wasn’t quite the same way they treated my male colleagues. As an example, in chambers the judge would usually address the man by his first name; they might talk about golf, or a social outing, clearly indicating some relationship and camaraderie. I was addressed formally by my maiden name. In the beginning there often was a sharp distinction. I was aware of that, but I chose to ignore it. It’s like trying to decide whether the glass is half-empty or half-full. I decided that my glass was always going to be half-full. If I had to work harder to prove myself, then I would work harder. That attitude was successful. I never had a chip on my shoulder, which made life much easier.

BR: How long were you in private practice?
JHG: Seventeen years. During that time June Green and I shared office space, and she is currently a judge on this court. We became fast friends, "sisters," a relationship that endures. I met my husband, Samuel Green, an extraordinary person and lawyer. We had opposed each other in court and sometimes were co-counsel. After marriage, we formed the firm Green & Green. Then after the birth of our first child, I stayed home to raise our son. This became a very temporary retirement.

BR: Why? What happened?
JHG: In December 1967 I received a telephone call from an official at the Justice Department regarding a vacancy on the local court. Unlike most lawyers, I had never even thought of becoming a judge. I turned it down cold, candidly saying that I wasn’t interested. My husband thought I acted a bit hastily, and that perhaps I should explore this a little further. Reluctantly, I met with the deputy attorney general, telling him very clearly that, while I was honored to be considered, I did not want this position. At the end of a lengthy conversation, I was advised that I was going to be recommended for this judgeship. I did nothing further. The next I heard President Johnson had appointed me to the local bench.

BR: It sounds like you had some ambivalence about accepting the position.
JHG: I had extraordinary ambivalence. I was afraid that taking on the duties of a judge would impede my responsibilities and joys of being a wife and mother. Anything that diluted the time I had for my family was not good. For a long time afterwards I felt pangs of guilt about being away from my children during their early days. Nonetheless, I enjoy being a judge. Despite my reservations, I’m glad I accepted the appointment.

BR: Did you find it difficult to manage motherhood and a career?
JHG: It’s a great challenge. You don’t get to read all the fun, interesting books you’d like to read, and you never sleep—other than that it’s a perfect life. When I went on the bench, I did so knowing that my family would always be number the one priority. I can’t imagine life without the richness of family. I simply decided that I was going to do whatever needed to be done. Sometimes you move a little faster, and drive a little faster. I remember one time when the elementary school was having a bake sale and all of the children were supposed to bring in a cake. The best cake would win a prize. Well, I never expected to win the prize, but if the other children were going to school with a cake, then my kids were going to have cakes too. I was up at three in the morning baking away, when crash—my strawberry cakes fell. I don’t mind telling you, I sat at the kitchen table and cried. I asked myself, "Should I give up my judgeship?" That was probably my most woeful moment. But I wiped the tears from my eyes and baked two other cakes. They didn’t win any prizes, but at least the children had their cakes to take to school the next day. Sleepless, I cannot imagine the bench conferences that morning.

I never missed a soccer game on the weekends; I never missed hearing my daughter sing in the choir. On Friday nights my husband and I would sit on the wooden bleachers watching our sons play football. They’d get beat 38-0, but the next Friday we’d be back out there cheering them on. Sitting on those bleachers on cold, rainy nights is not necessarily "fun"—but you do it. You do it because this is a most important time in their lives. You meet their friends and your home becomes the place where the kids all congregate. Those years were very special and are etched in my memory forever.

Our three children now have children of their own, and it’s glorious to have this strong, close family. So, yes, I found that I could combine both. It wasn’t easy, but we did it.

BR: Was it the Court of General Sessions that President Johnson appointed you to?
JHG: That’s right. Later, the local court changed from General Sessions to Superior Court, bringing augmented jurisdiction and a larger complement of judges. Before the new courthouse was built, we were in seven different buildings. The buildings were earmarked for separate assignments—domestic matters, civil matters, criminal cases, and so on. Rather than have your own courtroom, the judges would march from building to building just like the postman—rain, snow, sleet. You’d put on your boots, your black robe, and march over to your building for assignment. Unlike today, we didn’t have a fixed docket. We were on "general call." There would be a group of judges assigned to civil cases, another group to criminal cases, another group to domestic matters, another to tax, and so on. We would sit in the designated building and wait for the cases to come in. Each judge would take a turn. When your turn came, you’d be handed files three or four feet high. That would be your case. You hadn’t done any research, you had no books, but you’d be ready to go to trial. You’d begin by asking questions like, "Is this case dealing with personal injury or is it a contract case?" In the earliest days, your law clerk doubled as your courtroom deputy. That’s an interesting way to try a case. You bore down. You set the schedule, then you read fast and hard. With the volume of cases that we had, we had to flow through cases as rapidly as possible. As soon as you got through one case, the next arrived. You were on the bench 99 percent of the time, leaving only the wee hours of the morning to research and write opinions.

BR: People tend to think of the 1960s as an extraordinarily volatile time. Did that have any impact on the judges on the local bench?
JHG: Yes, it most certainly did. I became a judge in March 1968, and my chambers fronted on a busy street. Less than two weeks after I’d been sworn in, smoke poured through the windows of my chambers. That was the day Martin Luther King Jr. was assassinated. The entire city went up in flames. The riots were just awful. That night when we drove home, our car was severely rocked by a street mob. It was a scary, unfortunate time. The next morning when we drove back downtown, there were soldiers on the streets with bayonets fixed in their rifles. When I looked out the window from my chambers, I saw a tank in the juvenile court area. Now that was a traumatic sight.

The chief judge wanted me to handle the daily operations for the entire court, while the rest of the judges went on rotation and kept the criminal court open 24 hours a day. That was an awesome responsibility for someone who had been on the bench for two weeks. We got through the crisis.

BR: Was it difficult to become a judge during such a dangerous and volatile time?
JHG: I found it challenging. It was important that no matter how agitated the litigants were, you had to apply the rule of law. That was particularly true in a time of crisis. You treated every defendant with decency and respect, and you enforced the law. In subsequent years there were other crises that were handled in a similar way, except that on those I was working the two a.m. shifts.

BR: Were those some of the Vietnam war protests?
JHG: Yes. There was the big protest when many young people tried to shut down the city of Washington by blocking all bridges. Fortunately, we got the battle plans in advance, and all the judges were required to come into the city on a Sunday night; we were lodged in the same downtown hotel. Sentries were placed outside with rifles and bayonets, so it was patently obvious that we were there. But, when the mass arrests began we were already on duty. All of the people taken into custody were housed out in the open at RFK stadium, and once again the court went on its 24-hour rotation. You’ve never witnessed anything like the scene at the courthouse. Parents and relatives who had never seen the inside of a courtroom before were coming in trying to get these defendants out on bail. Lawyers were arriving from all over to represent these young antiwar protestors. They had been called by parents throughout the country who were saying, "Get my child out of jail!" To get to the courtroom I had to walk over dozens of bodies because people were lying on the floors in the corridors waiting for their moment in court. So I’d step over them with my black robe flapping and go sit on the bench and start issuing rulings. The Vietnam era was tumultuous, and as judges we were pulled right into the anger, the chaos, the excitement, and the emotion of the time.

BR: How did your appointment to the federal bench come about?
JHG: That was 1979, after I’d spent 11 years on the Superior Court. My name was one of those sent to the White House by the D.C. Judicial Nomination Commission that President Carter had set up; I was teaching a short seminar at Harvard when I learned that the president had nominated me.

BR: Had you ever met President Carter prior to that?
JHG: No.

BR: Why do you think he chose you?
JHG: I don’t know. I didn’t have any political connections in either the Johnson administration or the Carter administration. So I’ve never known who to thank for making all this happen. I’m delighted and grateful the appointments were made—but I can’t tell you how they came to be.

BR: One of the cases that landed on your docket was the notorious BCCI bank fraud case. Was that a difficult case to handle?
JHG: These were enormously fascinating cases, and they are not over yet. I was assigned the criminal case against the BCCI corporate entities as well as a number of individuals. It was believed that BCCI had illegally acquired a controlling interest in First American Corporation, the holding company of the largest bank in the area at the time. The court appointed liquidators who were given control of BCCI entered a plea of guilty as to the BCCI corporations, agreeing that the former management of BCCI had perpetrated the largest and most complex bank fraud in history.

One aspect of that plea agreement was that BCCI would forfeit its assets in the United States to the United States Government. I appointed two trustees—one to liquidate First American’s assets, and the other to liquidate the other assets. This liquidation process is still going on. The total figure now in excess of $1 billion, far more than anyone ever expected to be recovered.

The liquidation has required substantial work. In addition to monitoring the activities of the trustees, I have adjudicated hundreds of claims by third parties, who alleged that the property the government had seized was not part of the BCCI network of assets. The RICO statute established a procedure for handling these kind of claims, but there was very little precedent to rely on. And these claims raised all sorts of novel issues related to commercial law, banking law, the law of foreign sovereign immunity and so on.

I also was assigned five civil cases that were related to the liquidation of BCCI. Four of the five cases have been resolved, and the fifth has just been tried. In the largest case, more than $400 million in settlements had been achieved, and trial was scheduled for October 1998 against the four remaining defendants, including Clark Clifford and Robert Altman. The parties had been trying to resolve the matter for a long time. About a month before trial, I was asked to try to settle the case. My involvement coupled with a looming four to six month trial broke the logjam. As it happened, Mr. Clifford passed away just a month later. I favor settlement in a lot of cases; if there ever was a case where settlement was appropriate, this was it.

BR: In addition to a celebrity defendant, you also had prominent lawyers like Robert Bennett. Does the presence of a legal superstar like that make any difference?
JHG: No. I have been around for over 30 years. Many of the lawyers who have great stature today are people that I knew when, and they knew me when. Actually, it’s wonderful to have excellent lawyers appear before you. Excellent lawyering makes a judge’s job easier, not harder, provided you have excellence on both sides.

BR: During your tenure on the federal bench, there has been a strong political push for mandatory minimum sentences and federal sentencing guidelines. Has that had much impact on you and your fellow judges?
JHG: Yes, many find it very distressful. As judges we talk about this incessantly. As a consequence of the mandatory sentences, we know that justice is not always done. As an example, let’s say we’re dealing with a drug conspiracy. Under normal circumstances one would expect the leader of the conspiracy, if convicted, to receive the harshest sentence. But, under the present system of mandatory minimums, the leader often receives a lighter sentence than his or her coconspirators, because the leader is capable of providing information to law enforcement that allows him to obtain significant relief. A minor person in the same conspiracy who knows little, if anything, as much won’t be able to provide "substantial assistance," and therefore won’t be eligible for a guidelines departure. That person could be incarcerated for a mandatory 10 or 20 years, yet the leader will broker some sort of deal. This is the sort of thing we see all the time.

I’ll never forget when one of my colleagues, known as a law and order judge, was brought to tears by the uneven justice he had to administer. He described a scenario very much like the one I just outlined. Judges are very concerned because our hope obviously is to be fair and follow the law, and under the federal sentencing guidelines we can’t always be fair.

The original intent behind mandatory sentencing was to eliminate disparity in sentencing. A noble goal, but you cannot dispense equal justice by playing a numbers game. Judgment and discretion and common sense are essential. I truly believe that the procedures we used pre-guidelines were much more appropriate because they were tailored to the facts of the cases and the individuals involved.

BR: There has also been a push to federalize certain crimes that were traditionally handled by local jurisdictions. Has that put pressure on your docket and made it more difficult to do the job well?
JHG: Yes, it does put more pressure on the docket. And it seems to hit us in sporadic waves. A number of years ago we had a U.S. attorney who, because the federal sentencing guidelines provided harsher sentences, brought many cases to the federal court that normally would have been prosecuted in the local court. As a result, we became almost totally a criminal court, and our civil docket suffered severely. We could not push the civil cases forward to final resolution. This went on for several years, and even though our senior judges helped us mightily, we had to ask judges to come in from other jurisdictions to relieve the load. That eased when there was a change in the U.S. attorney. It was much better for a while.

BR: Do you ever want to look out the window and shake your fist at Congress for federalizing all these crimes?
JHG: Yes, that’s why I don’t look out the window. [laughter] It would not do much good for me to shake my fist at Congress. But the trends you have referred to have been very disturbing to judges, who are not at all happy about these developments.

BR: In 1988 you were appointed to the U.S. Foreign Intelligence Surveillance Court. What can you tell us about that assignment?
JHG: Very little. Shortly after my husband died I received a call from the chief justice, who asked if I would be willing to accept an appointment as a judge on the Foreign Intelligence Surveillance Court, an entity I knew nothing about. I was at a point in my life where a new challenge was inviting. The court is national and composed of seven judges. In 1990 I was appointed presiding judge, and served in that capacity, including handling all emergency matters, for the remaining five years of my term.

BR: Most people are not aware that such a court even exists. What does the court do?
JHG: The court deals exclusively with national security and with international terrorism, and involves applications for electronic surveillance. The judges receive very sensitive information and are required to have the highest security clearance available. I went through an extraordinary FBI investigation where the most soul-searching questions imaginable were asked. The judges on the court work alone, without a law clerk or a secretary. The appointment is for a non-renewable seven years.

BR: What sorts of decisions is the court called upon to make?
JHG: You need to determine whether the agencies can legally do what they want to do. I found it to be a most interesting time. My colleagues were extraordinary, the experience was amazing, but this not the sort of thing that I can ever write a book about.

BR: As you look back on your career, is there one accomplishment that you are most proud of?
JHG: The truth is I consider myself to be blessed. I thoroughly enjoyed private practice. I’ve treasured my 31 years on the bench. And I’m not going away yet. I’ve taken senior status and am at the court four days a week now, senior but active. On the fifth day I take care of my grandchildren, which is wonderful.