Chappaquiddick: Did The Justice System Work?
By C. Evan Stewart
Many trees have died since July 18-19, 1969, quite a few of them devoted to exploring what really happened when Mary Jo Kopechne perished in Senator Edward Moore Kennedy's Oldsmobile Delmont 88 when it drove off Dike Bridge and was submerged in Poucha Pond on Chappaquiddick Island, in Edgartown, Massachusetts. That accident occurred during the latter
stages of a party on Chappaquiddick for six "Boiler Room girls" (young women who worked on Robert Kennedy's 1968 presidential campaign) and six middle-aged men, five of whom were married (including Kennedy). Most of the reporting has been devoted to Kennedy's two accounts his volunteered account on the morning of July 19 to the local police chief, and his July 25 televised statement (authored by his brother's principal speechwriter, Theodore Sorensen). Those two accounts are in material disagreement; furthermore, both have been shown by countless analysts to be false and misleading on numerous key points. This article will not relitigate that well-trod ground. Rather, the focus will be on how well the justice system handled what has been called the "most famous traffic fatality of the [Twentieth] century."
The Police Investigation
The only real "evidence" uncovered by the Edgartown police (which had jurisdiction over the investigation) was the account proffered by Kennedy himself to the police about one hour after he first reported the incident (nine to 10 hours after it occurred). It was handwritten by his friend Paul Markham (a former U.S. Attorney for Massachusetts and a participant in the prior evening's party), and its text is as follows:
On July 18, 1969, at approximately 11:15 p.m. in Chap-
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paquiddick, Martha's Vineyard, Mass., I was driving my car on Main Street on my way to get the ferry back to Edgartown. I was unfamiliar with the road and turned onto Dike Road instead of bearing hard left on Main Street. After proceeding for approximately one half mile on Dike Road, I descended a hill and came upon a narrow bridge. The car went off the side of the bridge. There was one passenger with me, one Miss Mary ______, a former secretary of my brother, Senator Robert Kennedy. The car turned over and sank into the water and landed with the roof resting on the bottom. I attempted to open the door and the window of the car but have no recollection of how I got out of the car. I came to the surface and then repeatedly dove down to the car in an attempt to see if the passenger was still in the car. I was unsuccessful in the attempt. I was exhausted and in a state of shock. I recall walking back, to where my friends were eating. There was a car parked in front of the cottage, and I climbed into the back seat. I then asked for someone to bring me back to Edgartown. I remember walking around for a period of time and then going back to my hotel room. When I fully realized what had happened this morning, I immediately contacted the police.
The victim's name was left blank because neither Kennedy nor Markham knew how to spell her last name. At no time thereafter did Kennedy provide any other information to the police; and he refused to answer any questions. The five remaining single women at the party were whisked off the island on July 19 before the police knew they had ever been at the party (or that there had even been a party). None of the four other married men who attended the party besides Kennedy (including Markham and Kennedy's cousin, Joseph Gargan) was questioned; the sixth man at the party Kennedy's aide and often chauffer, John Crimmins later offered a conclusory, tersely written statement that moved the evidentiary needle not one whit. Kopechne's body was flown off the island to Pennsylvania by another Kennedy aide on July 20 (he had been directed to do so on July 19, before Kennedy notified the police of his involvement); there had been only a cursory review of her body, with no autopsy or official statement as to the cause of death. For multiple reasons including the fact that nine or 10 hours had passed since the incident, and that Kennedy seemed uninjured, was perfectly calm, and in full command of his faculties on the morning of July 19 the senator was not subjected to any testing for alcohol. Nonetheless, it was later established that he had had numerous cocktails in the latter part of the afternoon of the 18th (along with a beer or two all before the party), that he had (at
least) several more drinks at the party, and it was widely known (in Washington circles) that he had had a serious drinking problem since his brother's 1968 assassination. Also unknown to the police was the fact that the small house on the island where the party took place had been stocked with three half-gallon bottles of vodka, four fifths of scotch, two bottles of rum, and two cases of beer (and two of the men present Crimmins and Gargan drank no alcohol that night); all evidence of what was in the house was quickly vacuumed up on July 19 by Kennedy aides. Finally, Kopechne known as a very moderate drinker was found (after nine or 10 hours of being submerged in cold salt water and then several more hours after having been removed from the car) to have had an alcohol content in her blood of 0.09 the equivalent of having had five or six drinks in the hour before her death (i.e., she was "legally drunk"). None of the foregoing played any part in the police investigation. Then there was the question of liability. Under Massachusetts law, "[a]ny person who wantonly or in a reckless or grossly negligent manner did that which resulted in the death of a human being was guilty of manslaughter, although he did not contemplate such a result." In meeting that standard, besides factoring in whether Kennedy was impaired when he drove off the bridge (which went unexplored), another key question would have been to determine how fast the
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car was going when it drove off the bridge. The police, however, made no effort to answer that question. Then there was the issue of Kennedy's driving history. Two facts complicated that subject: First, his driver's license had expired; and second, Kennedy had at least three reckless driving convictions in Virginia (and two other Virginia charges for driving without a license). The local authorities judged the former fact (when it was belatedly brought to their attention) of no importance; as to the latter fact(s), the police were (and remained) unaware.
A Deal and Then a Plea
Based upon the "investigation," the local police and special prosecutor for the county concluded that there was "no criminal negligence" on Kennedy's part, nor was there any evidence "to indicate excessive speed or reckless driving." But what about the inescapable matters of Kennedy's leaving the scene of the accident (after causing a death) and not reporting it until nine or 10 hours later? The police chief felt compelled to file a misdemeanor application, charging the senator with that crime; the statute provided a sentence of two months to two years (with a mandatory 20 days in jail). A few days later the local prosecutor met with Kennedy's lawyers to discuss a deal. Kennedy's team asked, if he pleaded guilty, what would the local prosecutor recommend to the judge in the way of a penalty. The re-
sponse was "for any first offender," it would be a suspended sentence. (That, of course, posed a problem given Kennedy's Virginia offenses.) Would the judge go along? The local prosecutor could not make any such representation. The Kennedy team, without authority to commit to anything, said they had to go back and check with the people "calling the shots." The dangers in not taking a guilty plea were significant: (i) a public trial; (ii) a presentation of evidence; (iii) party attendees could be subpoenaed to testify; (iv) Deputy Sheriff Christopher ("Huck") Look would undoubtedly be a witness, and he posed great problems for central tenets of Kennedy's story he had seen Kennedy's car (with a man and woman in the front seat) at 12:45 a.m. on July 19 / Look, in his police uniform, had stopped his car and walked to within 20 to 30 feet of the Kennedy car, which had also stopped; but it then turned quickly on to Dike Road and drove away at a fast speed / Look also would testify that the male driver appeared "lost" and "confused"; (v) Kennedy would be subject to cross-examination; and (vi) based upon what transpired at such a trial, evidence sufficient to justify a manslaughter charge might well be developed. And as the Kennedy camp contemplated those items, the public and media pressure for the senator to make some statement as to what happened had reached a megaboiling point (since the accident, Kennedy had holed up, incom-
municado, at his family's Hyannisport compound with a bevy of advisors trying to figure out what to do). Ultimately, those two conflicting considerations won out, and Kennedy's legal team met again with the local authorities to seal the deal: Kennedy would agree to waive a hearing, plead guilty to leaving the scene, and a suspended sentence would be jointly proposed to the judge. At 8:58 a.m. on Monday July 25, Kennedy and his legal team sat in Judge James Boyle's Edgartown courtroom. The charge of leaving the scene was read aloud and Kennedy was asked: "How do you plead? Guilty or not guilty?" With more than a little difficulty, Kennedy was able to offer a whispering "guilty." Then, after a summary of the "evidence," Judge Boyle asked if the defendant had made a "deliberate effort" to conceal his identity. The police chief answered: "Not to my knowledge, your honor." Kennedy (who had spent nine to 10 hours after the accident concealing his culpability) offered no response. Both sets of lawyers then proposed a suspended sentence. Before ruling, Judge Boyle asked whether there was any prior "record." When told there was "none" (which was not true), Judge Boyle agreed to a suspended sentence, "[c]onsidering the unblemished record of the defendant and insofar as the Commonwealth represents that this is not a case where he was really trying to conceal his identity." And with that seeming to end his legal problems, Kennedy went
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on national television that night to read the Sorensen speech. It saved his political career with the Massachusetts voters; but it also served to exacerbate the many inexplicable, unanswered questions that remained regarding the death of Kopechne and his own conduct.
Based upon the "investigation," the
local police and special prosecutor for the county concluded that there was "no criminal negligence" on Kennedy's part, nor was there any evidence "to indicate excessive speed or reck-
Kennedy's legal problems were not in fact over, however, because another prosecutor, the district attorney for the Southern District of Massachusetts, Edward Dinis, also had jurisdiction. And on the same day Kennedy returned to the Senate (July 31), Dinis requested an inquest into Kopechne's death. On August 8, Judge Boyle agreed to that request, setting the inquest to take place on September 3. Fearing the public nature of an inquest (and the potential for such a proceeding exposing Kennedy to a charge of manslaughter), Ken-
nedy's legal team petitioned the Massachusetts Supreme Judicial Court on September 2 for a temporary restraining order to stop the inquest. On October 30, the court not only ordered the press and public be barred from the inquest (because of all the publicity that had already accompanied the accident, further media coverage might "make it difficult, if not impossible,... to insure a defendant a fair trial in any criminal proceedings which may follow"), it also inexplicably ordered that the entire record from such a proceeding be impounded until after any prosecution of Kennedy's conduct could be undertaken. With those guidelines, Judge Boyle re-scheduled the inquest to begin on January 5, 1970. While the injunction petition was pending, Dinis brought on his own petition (in Pennsylvania), seeking the exhumation and autopsy of Kopechne's body (citing evidence of blood on her body and clothing). Mr. and Mrs. Kopechne (after allegedly receiving counseling from an old Kennedy family friend, Cardinal Cushing) judicially intervened and opposed the disturbance of their daughter's body. On October 20-21, a Wilkes-Barre judge held a hearing on the petition. Notwithstanding testimony from witnesses (including a Kopechne expert) that Kopechne was alive and breathing for some period while trapped in the car underwater (which could have supported the notion that Kopechne suffocated, as opposed to having drowned), the judge on Decem-
ber 1 ruled that there was "[n] o evidence [that] anything other than drowning had caused the death of Mary Jo Kopechne." As such, there would be no exhumation and autopsy of her body. Before the inquest could begin, yet another odd thing happened: the lead detective for the district attorney's office contacted and later met twice with key Kennedy advisors to give them detailed "heads-ups" about what evidence and testimony the district attorney intended to put on at the inquest. The detective (Bernie Flynn) wanted to help the senator (who he thought not only had clearly lied in his television speech, but had also been "in the bag" when he was driving on the night of July 18-19): "My main purpose is, I don't want Ted Kennedy to get caught in a big lie that could really make him go down the drain." Risking his entire professional career to have the senator (and the Kennedy machine) owe him one, Flynn did his best to put the Kennedy advisors' "mind[s] at ease that there weren't going to be any surprises [at the inquest]. And they seemed to like that." On January 5, contrary to the order of witnesses proposed by Dinis, Judge Boyle required that the senator testify first. Kennedy, under oath, was then allowed to present essentially a rambling monologue that tried to accommodate as best he could his two prior (inconsistent) versions, anticipate Look's (and others') testimony (based upon Flynn's "heads-ups"), refute any notion that he was not "absolutely so-
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ber" at the time of the accident, and negate any suggestion that he was driving recklessly (Kennedy swore he was driving at 20 miles per hour). Dinis a Democrat, who was running for re-election that year, and thus understood well the dangers of taking on Kennedy allowed the senator to bob and weave, not answering and/or filibustering different questions. When he thought he could, Kennedy flat out lied (for example, he keyed the time of when he asked Gargan and Markham to help him rescue Kopechne to a clock in a rental car back at the party house; The Boston Globe later proved the car had no clock). When asked about his numerous telephone calls on the morning of the 19th (before he notified the police of his involvement), he dissembled, with good reason one of the calls was to his mistress in Florida. When Dinis tried to impeach Kennedy's testimony with his volunteered statement to the police on the 19th, Judge Boyle stopped him (the statement "speak[s] for itself"), and when Dinis pursued it further with leading questions, the judge pronounced: "There is no cross-examination in this inquest!" After three hours, the senator walked out of the courthouse "satisfied I responded in the most complete way possible to all the questions put to me by the judge and the district attorney." Now all the Kennedy team had to worry about was the other 25 listed witnesses. The party participants even with enormous coaching, and their lawyers
paid for by Kennedy did not do such a great job. But Dinis and Judge Boyle did not do much in identifying various holes or inconsistencies in their stories and drilling down on them. For example, Ray LaRosa (a Kennedy campaign worker) confirmed that he and two of the "Boiler Room" girls (while doing a "conga line" in the middle of the main street after midnight) had interacted with Huck Look driving from the direction of the ferry (right after Look had seen Kennedy's car), and just before meeting up with Look, LaRosa and the women had been passed by another car heading toward the ferry (i.e., where Look had just seen it). Notwithstanding this obvious bombshell to Kennedy's time-line and version of events, neither Dinis nor Boyle pursued it. Another Kennedy aide, Charles Trotter, also made a hash out of Kennedy's time-line. And this had a significant personal consequence to him. Trotter a married man had taken two extended midnight "walks" with one of the "Boiler Room" girls; by this testimony, Kennedy's walk back from the accident to seek help from Gargan and Markham would have had him meeting up with them on at least one of their "walks." This hole in Kennedy's story went unpursued. Gargan and Markham did their best to follow the televised Kennedy version of events (which had, among other things, revealed for the first time that Kennedy enlisted their help after the accident and they had made repeated
attempts to save Kopechne). Unfortunately, the two men (neither of whom could claim "shock" etc.) were not pressed on why they had not summoned help, or (as officers of the court) had not reported the accident at once. Both dissembled about the extent of Kennedy's drinking. And Gargan was never asked whether a frantic Kennedy had discussed that night offering up alternative explanation(s) for the accident which he had: e.g., Kopechne was driving alone in the car (Gargan was prepared to answer if asked that "that was discussed, but not acted upon."). Nor was either man asked in detail about what happened when they confronted a calm and unconcerned Kennedy at 8:00 a.m. on the 19th, and why it had taken the senator almost an additional two hours to report the accident. As for the witnesses who interacted with a calm and dressed-foryachting Kennedy the morning of the 19th, the district attorney did not develop a full record. For example, the man who spent 30 minutes with the senator was not questioned on several key matters he told investigators. Another man who had witnessed Kennedy's serious imbibing the afternoon before was not even called to testify. When the "Boiler Room" girls testified, their performances were so unpersuasive that Judge Boyle took over much of the questioning, with numerous sarcastic and pointed inquiries that reflected frustration at their seemingly collusive testimony. Deputy Sheriff Look's tes-
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timony came in as advertised. And while he could not swear with metaphysical certainty that it was Kennedy's car he interacted with at 12:45 a.m. on July 19, his identification of the type of car and the license plate letters and numbers left little doubt that it was the senator's car (it was later proven with metaphysical certainty, but Dinis decided not to put that evidence into the inquest record). The diver who recovered Kopechne's body from the car was severely limited as to what he was allowed to testify (i.e., that the position of Kopechne's body in the car meant she was gasping into an air bubble at the back of the car; that she did not drown, but suffocated; and that she could have been saved if he (or another professional diver) had been called immediately after the accident). The inquest ended with a whimper on January 8. Left uncalled as witnesses included (i) the residents of the houses right near the bridge, whose testimony would have directly contradicted Kennedy's (i.e., the existence of house lights being on which Kennedy denied emphatically); and (ii) a next-door neighbor to the party house, who would have testified to "yelling, music[,] and general sounds of hell-raising" until 1:30 a.m. on the 19th. Upon his return to Washington, Kennedy told reporters: "I'm glad it's over.... I am hopeful now of getting back to the business of the senate." But before that could really be the case, Judge's Boyle's inquest report would have to be
factored in. On February 18, the judge filed his report and the transcript of the inquest under seal with the Edgartown Superior Court clerk. The documents were subsequently brought to the Boston Superior Courthouse for safekeeping. Despite the not-so-perfect inquest's search for the truth, the report contained a number of bombshells, none good for the senator. First, Boyle found that the testimony of the witnesses contained a great number of "inconsistences and contradictions." Second, he placed the accident as "between 11:30 p.m. on July 18 and 1:00 a.m., on July 19" (not resolving the conflict between Kennedy and Look's testimony). Third, he expressly rejected Kennedy's sworn claim that he had mistakenly taken a 90 degree turn on to the dirt road leading to the bridge (and beach beyond): "Kennedy and Kopechne did not intend to drive to the ferry slip and his turn onto Dike Road had been intentional." Fourth, that (i) driving at 20 miles per hour (as Kennedy testified to) was "at least negligent and possibly reckless"; (ii) if Kennedy knew of the hazard ahead of him (i.e., the bridge), such driving would constitute criminal intent; (iii) because the senator had twice driven over the bridge earlier on July 18, the judge concluded that it was "probable" that Kennedy knew of the hazard; and (iv) in light of the foregoing, "[t]here is probable cause to believe that...Kennedy operated his motor vehicle negligently...and that such operation
appears to have contributed to the death of Mary Jo Kopechne." Although what Judge Boyle laid out constituted a basis for the issuance of an arrest warrant for manslaughter, he did nothing; in fact, he retired from the bench two days later on February 20. The matter was left on the doorstep of Dinis. Upon Dinis' return to Massachusetts from a vacation abroad, he was stunned ("son of a bitch!") to read Boyle's (still confidential) report. Recognizing he was now between a rock (Boyle's report) and a hard place (prosecuting Kennedy), Dinis froze. He would soon find a group of people who would try to unfreeze him.
The Grand Jury
The grand jury of Dukes County, Massachusetts, had been pursuing Dinis to investigate the accident/death; but it had been persuaded to hold off until after the inquest. On March 17, the grand jury foreman wrote Joseph Tauro, chief justice of the Superior Court, requesting that the panel be reconvened in order to investigate Kopechne's death. Nine days later, Tauro judicially greenlighted the grand jury to convene on April 6 to hear evidence on the matter. Given Boyle's report, this looked like a moment of maximum danger for Kennedy's political career, as well as his liberty. Fortunately for Kennedy, the case was assigned to Judge Wilfred J. Paquet; he was not only an old-time Democratic machine politician (and Kennedy stalwart), he was also a former cli-
Federal Bar Council Quarterly Sept./Oct./Nov. 2018
ent of the senator's lawyer. At the "I plan no further statement on ruefully observe: "The girl
outset of their April 6 session, the this tragic matter." And for the died. And I got defeated."
grand jury heard a 90 minute ora- rest of his life, that is where Ken- The Massachusetts Motor
tion by Paquet about how limited nedy let things stand (e.g., "I've
Vehicles Registry concluded
their function was in investigat- answered all the questions."). ing the matter. And to make that Did the justice system work
in May 1970 that Kennedy had been speeding and was
directive crystal clear, he told the vis--vis Kennedy and Kopech-
"at serious fault" for the ac-
jurors they would not be permit- ne's death? I will let the reader(s) ted to see any of the inquest ma- decide. That said, let me add what
cident. Nonetheless, it has refused since then to release
terials or Judge Boyle's report. Dinis stated long after Kennedy
its report without written au-
Furthermore, they would not be was free from criminal exposure: permitted to subpoena anyone "There's no question in my mind
thorization from Kennedy (which was never forthcom-
who had testified at the inquest; that the grand jury would have
ing during his lifetime). A
instead, they would be permitted brought an indictment against only to subpoena "other" wit- Ted Kennedy for manslaughter, if
subsequent analysis of what happened that night by one of
nesses and could consider only I had given them the case."
the country's leading experts
what the judge or district attor-
on car accidents concluded
ney showed them, or what they knew "personally" about the accident. Compounding the judge's
Dinis stated long after Kennedy was
that Kennedy's account of his speed (20 miles per hour) was an error. The expert's analysis
erroneous directions, Dinis told
free from criminal
was that the car was traveling
the jurors that there was nothing in the inquest transcripts or Judge Boyle's report that would support any criminal charges against Kennedy. Faced with these astonishing (and improper) roadblocks, the grand jury called four inconsequential witnesses, who testified for a total of 20 minutes. Thereafter, frustrated, but stymied by Paquet and Dinis, the jurors threw in the towel and were dismissed by the judge. Kennedy was now truly free
exposure: "There's no question in my mind that the grand jury would have brought an indictment against Ted Kennedy for manslaughter, if I had
given them the case."
at "a minimum speed outside of 30 mph; it could have been going as fast as 38 mph."
The Boston Globe and Reader's Digest have both done significant investigatory reporting on Chappaquiddick, and that excellent work can be accessed via the internet for those who wish a more thorough account of what actually took place in July 1969 and thereafter. The leading (and best) book on the subject is Leo Damore's "Senatorial
from criminal exposure. The inquest record and Boyle's report In November 1970, Kennedy
Privilege: The Chappaquiddick Cover-Up" (Regnery
were subsequently made public
was re-elected to the senate
Gateway 1988). See, also, Spy
on April 29, 1970. And although
(where he served until his
magazine (November 1987)
they caused a media firestorm
death in 2009). Dinis, on the
("Experts Decide: Will Teddy
(and greatly inflamed the grand
other hand, lost his bid for
Go to Hell?"). The 2017 mov-
jurors), Kennedy's stonewall
a fourth term as district at-
ie Chappaquiddick (Apex En-
stood firm. As to Boyle's find-
torney. Although he did not
tertainment) is not sympathet-
ings, the senator issued a state- think Kennedy had "a direct ic to Senator Kennedy or his
ment: "I reject them." He added: role" in his defeat, Dinis did conduct; at the same time, it is
21 Sept./Oct./Nov. 2018 Federal Bar Council Quarterly
not wholly consistent with the known, undisputable facts (let alone in attempting to resolve the innumerable inconsistencies in testimony and disputed facts).
In response to President Gerald Ford pardoning his predecessor, Richard Nixon, in 1974, Kennedy posed this rhetorical question on the floor of the U.S. Senate: "Do we operate under a system of equal justice under law, or is there one system for the average citizen, and another for the high and mighty?"
Lawyers Who Have Made a Difference
By Pete Eikenberry and Les Fagen
(Pete:) Both Les and I were mentored in our youthful legal careers by the legendary iconic legal and political figure, Ed Costikyan. The three of us crossed paths in about 1985 when Ed was the chair of the Judiciary Committee of the Association of the Bar of the City of New York and we were members. Ed was the proud son of an immigrant Armenian rug dealer. In 1962, as a young lawyer and political activist, Ed had helped destroy the legendary Manhattan Democratic political machine, "Tammany Hall," to become the New York County Democratic leader. He
was a joy to encounter, only 5'5" tall, slightly rotund, and always sporting his trademark bowtie. He loved to sing enthusiastically in the City Bar chorus productions, or to share a story, eyes popping joyfully with a puckish grin. He, more than anyone, enjoyed the confidence of all the judges, politicians, and leaders of the bar of New York City. Governors Rockefeller and Mario Cuomo and Mayors Koch and Giuliani (at different times) all appointed Ed to draft special plans or head special commissions, involving, e.g., the decentralization of the city's government, bribery at the city's Parking Violations Bureau, placement of the city's school system under mayoral control, and prevention of scandal.
Both Les and I were mentored in our youthful legal careers by the legendary iconic legal and political
figure, Ed Costikyan.
As a junior associate, I met Ed in 1967 when he was a partner at Paul Weiss, during a dreary trial in the Bronx. Paul Weiss represented a co-defendant to the client represented by my firm, White & Case. Our clients' respective legal positions were so superior to the adversary's that Ed often talked with me during breaks. At the time, I was
a volunteer in Senator Bobby Kennedy's New York office, and I was poised to run for Congress in Brooklyn in 1968. I shared a report with Ed that I had done for the senator on Brooklyn politics that caused Ed to reminisce about his then recent experience of becoming "Boss" of the Manhattan Democratic Party. Several years later, upon the recommendation of Laura Hoguet, I was appointed to Ed's City Bar Judiciary Committee. His book, Behind Closed Doors (Harcourt Brace, 1966), gives insight into his thoughts on judicial selection and why he happened to become chair of the Judiciary Committee. Ed felt that "No system of judicial selection with which I am familiar is satisfactory." In commenting about the Citizens Union's and City Bar's Judiciary Committee's involvement in judicial selection, Ed stated that their "brief interviews and hasty reviews of written dossiers led to superficial judgments based upon quick impressions." He further stated that:
[L]et us disregard the [City] Bar Association's judgment on sitting judges. Every time a sitting judge comes up for re-nomination with rare exceptions he is dutifully found to be "highly qualified" and therefore entitled to renomination.
The Bar Association once rated as "highly qualified" one judge before whom I had tried several cases. For fun, I checked with every other