The Historical Society of the U. S. Courts in the Eleventh Circuit

11th Circuit

Historical News Volume VII, Number 2

http://sites.google.com/site/circuit11history

Summer 2010

Judge John McDuffie, the Train Robber Rube Burrow, the Diploma Privilege and a Federal Judgeship By David A. Bagwell1 Judge John McDuffie was the Judge of the U.S. District Court for the Southern District of Alabama from 1935 to his death in 1950, when President Truman appointed the locally beloved Dan Thomas to the seat. Judge McDuffie had some fascinating history, but one of the most interesting aspects of it all was his father’s role in the capture of the notorious train robber Rube Burrow.

admitted “I practically legislated myself into the Alabama Bar.”4 He was elected to Congress in 1919 and served there until 1935; he was cited in news reports recently during the health care bill debates as having engineered passage of a statute back in 1933 by the nefarious “reconciliation process.”

McDuffie had an unsuccessful run for the speaker’s chair in the early Judge John McDuffie was born in 1930s,5 undone he thought by 1883 on his family’s plantation Oak Tammany Hall,6 and began to get at Forest in Monroe County, Ala., at cross-purposes with the Roosevelt McDuffie’s Landing on the Alabama administration. Congressman River, which was then a major McDuffie was a supporter of the steamboat commerce artery.2 His early “New Deal” but later wrote family came to my neighborhood that “I refused to vote for the of Point Clear on Mobile Bay in the establishment of the furniture summers, the parents by steamboat Portrait of Judge John McDuffie, Ceremonial factory promoted by Mrs. Roosevelt Courtroom, U.S. District Court, Mobile, Ala. in West Virginia, which I thought and the boys and some few servants (Courtesy of Chuck Diard, Clerk, SDAL) and a few cattle and chickens by was a species of communistic wagon train. He graduated from undertaking, and I was getting to be what is now Auburn University in very unhappy in some of the laws 1904, and then attended the University of Alabama law that were passed.”7 So McDuffie went to see President school. Roosevelt, who appointed him to the District Bench to replace District Judge Robert Tait Ervin,8 undoubtedly Back then under what was called “the diploma privilege” glad to be rid of this troublesome Southern conservative a graduate of the state’s law school was automatically in Congress. admitted to the state bar and licensed to practice law. Unfortunately for him, while McDuffie was both a law The legend in the John Archibald Campbell U.S. school student and a representative in the Alabama Courthouse in Mobile has always been that Judge Legislature, the state rescinded the diploma privilege. McDuffie had the first air-conditioned courtroom in the So he promptly got a bill passed by the Legislature to U.S. Court system, and there is nobody much around now reinstate the diploma privilege, and in his biography3 he continued, next page Historical News is produced as a courtesy by The Florida Bar.

remember the version by Joan Baez – but Rube Burrow, who was much more interesting, is mostly lost to history.11 We shall here remedy that.

McDuffie, from page 1

Rube was born in 1854 in Vernon, Ala., in Lamar County in mid-Northwest Alabama. At age 18 in 1872, Rube, like so many Southerners, set out for Texas, and married, had a couple of kids, lost his wife, and remarried four years later. Rube’s younger brother Jim joined him in Texas. They tired of the hot, dirty but honest work of farming and they took up cattle rustling and liked the life and the money.

who can contradict that. Sad to say Judge McDuffie’s wife, Cornelia, died only two days after he took the oath of office; he said that Judge Tait agreed to continue to cover the docket while McDuffie went and sat in New Orleans where they needed him badly, and that it helped that his daughter Cornelia (later Cornelia McDuffie Turner, society columnist for the Mobile Register for many years) was going to Sophie Newcomb College and it was nice to be there in that time. Judge McDuffie served honorably until his death in 1950. Mossback Southerner or not, sitting on a three-judge district court in 1949, he concurred with the striking down of Alabama’s Boswell Amendment dealing with literacy tests for voting as unconstitutional.9

Rube’s small gang decided to up the ante on crime, and in early December 1886, they robbed their first train, of the Fort Worth and Denver City line, at a water stop at Bellevue, Texas. They worked over the passengers and got a little money but not much. Rube and his gang were lucky not to have been shot; armed men were pretty common back then, as now. Speaking of which, the main haul was from some five U.S. Army Buffalo Soldiers; Rube and Jim got the soldiers’ giant Colt .45 revolvers, much bigger and longer than the smaller revolvers most Southerners had at the time. During the rest of his career, Rube used those two monster revolvers, which struck terror into his victims, especially when he said “my bullets are as big as 10 cents watermelons!” When robbery victims saw those guns throughout Rube’s career, they invariably called them “horse pistols” and described them as “almost as long as a shotgun.” They got attention.

But that’s all boring history, I mean Tammany Hall and commies and federal judgeships and all that. Who cares about that stuff? What is really interesting about Judge McDuffie is the role that his daddy played in catching the great train robber Rube Burrow. I mean, trains and six guns and lever action rifles and shoot-outs in the street, which are about money rather than about drugs or race! That’s what we want to read about in the Eleventh Circuit. It is a very odd fact that only twice in American history has one lone man both stopped and robbed a moving train. Can you even imagine how hard that is? It is an even odder fact that both times it was in Flomaton, Ala.10 The first time it was by Rube Burrow, of whom we shall speak here. The second time it was by Bill McCoy, who was called “Railroad Bill.” Railroad Bill was immortalized by a folk song by that name recorded by lots of singers – Baby Boomers will best

From his first train robbery, Rube had learned a valuable lesson, which was “don’t rob the passengers, who may be armed; instead, rob the Southern Express car.” The Southern Express was the 1880s equivalent of today’s Federal Express, except the packages were carried in “the express car” of a train, kept locked and “guarded” by “an express agent” who sorted the letters and packages en route. There are two keys to robbing the express car; one See “McDuffie” page 20

IN THIS ISSUE A historical tale of Judge McDuffie, the train robber Rube Burrow, the diploma privilege and a federal judgeship.........................................................................................................................................................................1 President’s message..........................................................................................................................................................3 Remarks at Judge Beverly Baldwin Martin’s investiture ..........................................................................................4 Openings of Jacksonville, Tampa historical exhibits ........................................................................................... 10 Tribute to Judge Wilbur Owens .................................................................................................................................. 13 Georgia state bar launches program to help military service members . ........................................................ 17 A territorial judge honored by Baldwin County, Ala. ............................................................................................ 18

Also Membership Form.......................................................................................................................................................... 12 Officers and trustees of the 11th Circuit Historical Society ................................................................................... 19



Message from the president

A tale well told of an infamous bank robber and much more Outlined against a blue-gray October sky, the Four Horsemen rode again. In dramatic lore, they are known as Famine, Pestilence, Destruction and Death. These are only aliases. Their real names were Rube Burrow, Jim Burrow and gang. Please forgive me for borrowing from my favorite sportswriter of the past, Grantland Rice, to make reference to David Bagwell’s splendid article herein ben h. harris, jr. about the great train robber, Rube Burrow. The article is significant because of the role that the father of U.S. District Judge John McDuffie of the Southern District of Alabama played in the capture of the infamous Rube Burrow.

the United States District Court for the Middle District of Alabama, 1804-1955.” This fine publication, which includes a preface provided by U.S. District Judge W. Harold Albritton, goes back to and includes Judge Harry Toulmin who was appointed by President Thomas Jefferson to be a Superior Court Judge in the Mississippi Territory, which included Alabama. In this issue, David Bagwell provides us with a brief account of the significance of a monument unveiled in Baldwin County, Ala., honoring Judge Toulmin. We also welcome Judge Beverly Baldwin Martin as the newest Eleventh Circuit Judge, whose investiture ceremony took place on March 25 at the Elbert P. Tuttle Court of Appeals Building in Atlanta. The president nominated Judge Martin to a seat vacated by Judge R. Lanier Anderson. She had previously been a U. S. District Judge for the Northern District of Georgia.

In looking up Rice’s famous description of Notre Dame’s Four Horsemen, I learned that it emerged from Notre Dame’s 13-7 victory over Army in a game played at the Polo Grounds in October 1924 before a crowd of 55,000. I trust you will enjoy David’s intriguing article. I want to express the Society’s appreciation to Charles R. Diard, Jr., Clerk, U.S.D.C., Southern District of Alabama, and to the W.S. Hoole Special Collections Library at the University of Alabama for photographs made available to accompany this historical narrative.

Additionally we have tributes to honor Judge Wilbur D. Owens, Jr., who passed away on April 28, 2010, at the age of 80. Judge Owens served as a judge for the Middle District of Georgia from 1972 until his retirement in January 2008. Judge Owens’ tenure included serving as chief judge of the Middle District. In June, I had the pleasure of thanking the members of the Atlanta Chapter of the Federal Bar Association for their generous contribution to the Society. The gift was received a few days after the Chapter hosted its annual luncheon honoring the federal judiciary.

I do not know what the limits are on the powers of the president of this organization, but the story of the father of Judge McDuffie helping catch Rube Burrow for some reason reminded me of Judge McDuffie’s son-in-law saving me on a runaway horse. Quite some years ago, as a small boy, I attended the birthday party of Judge McDuffie’s grandson, John McDuffie Turner. Rather than a Shetland pony, they had a real horse for us to ride. I was the first small lad placed on the horse. The horse immediately bolted through the gate of the fenced-in yard and headed down a street with me holding on for dear life. Fortunately, Mac Turner’s father was in the front yard and had a good angle on the horse and managed to catch the horse and get me off and on solid ground. Needless to say, there were no more horse rides at the party.

I am pleased to report that we have received another box of Judge Godbold’s files pertaining to the Eleventh Circuit history through the courtesy of Dr. John Godbold, Jr. and the Godbold family. On June 4, the Historical Committee of the Middle District of Florida hosted the opening of the Tampa Historical Exhibit at the Sam M. Gibbons U. S. Courthouse. Also, an initial unveiling of historical exhibits in the Middle District of Florida took place at the Jacksonville Division’s Courthouse last year. Further, I know each of you have writing skills and probably articles worthy of publication in future issues. I wish to encourage your participation by submitting articles for publication in our Historical News. Moreover, please seek out new members for the Society. As always, I express my appreciation to Wanda Lamar who runs the show.

I promise no more of that – I would like to report that the Society has recently received through the kindness of Associate Dean James B. Leonard of the University of Alabama School of Law and Dr. Paul M. Pruitt, Jr., Special Collections Librarian of the Bounds Law Library of the Law School, copies of the recently published book, “A Goodly Heritage: Judges and Historically Significant Decisions of

— Ben H. Harris, Jr., President



Investiture Ceremony of The Honorable Beverly Baldwin Martin As a Judge of the U.S. Court of Appeals for the Eleventh Circuit March 25, 2010

Remarks at Judge Beverly Baldwin Martin’s Investiture By the Honorable Julie E. Carnes Chief U.S. District Court Judge, Northern District of Georgia Thank you, Chief Judge Dubina. On behalf of my fellow judges on the Northern District of Georgia bench, I am pleased to be a part of this ceremony today, as our muchadmired former colleague, Judge Beverly Martin, formally takes her oath as an Eleventh Circuit judge.

record, she has been required to mold that sometimes mush of facts and law into something that an appellate court can review. Over the last 10 years, she has interacted repeatedly with the litigants and lawyers who bring these cases, and, as well as anyone I know, she understands the human context of litigation.

An occasion like this, where a long-time colleague is moving on to another position, is understandably a bittersweet one for my court. I’ll talk about the “bitter” in a minute, but let me start by focusing on the “sweet.”

But what about Judge Martin, herself? If I had to pick the single trait for which she is best known on our court, it is her incomparable work ethic. There may be a few hardy souls who work as hard as Judge Martin, First, Judge Martin served with us for almost 10 years, but there is no one who and all of us on the Northern works harder. Her hours District of Georgia bench are have become the stuff of extremely proud of her. The urban legend around our last Georgia appointee to courthouse: except it wasn’t the Eleventh Circuit was also a legend; it was true. I, from our court: Judge Frank myself, work unusual hours, Chief Judge Joel F. Dubina welcoming Judge Martin to the court. Hull, back in 1997. Our bench but no matter what odd (Photo courtesy of the 11th Circuit Court of Appeals) has remained very proud of hour I might stop in at the Judge Hull’s work on your RBR parking lot, there was court, and we know that Judge Martin will follow in that the familiar 2003 BMW, parked in its assigned place by same tradition of excellence. the door. At first, I felt a little competitive, thinking, as I Second, we’re proud that a district judge was chosen. drove into the parking lot at a particularly weird time: “I Certainly, a person doesn’t have to have experience as a bet Judge Martin’s car won’t be here now.” But it almost district judge to be a good appellate judge. The number always was. of outstanding judges on the Eleventh Circuit without that One time, the car had not moved for days and I couldn’t experience surely proves that this is not a prerequisite. figure out what was going on. I finally saw Beverly and But, I would guess that most would agree that there can asked. She had been to Europe for a week. Which I be no better training for a federal appellate judge than to thought was cheating a bit. have been a district court judge. In the last 10 years, Judge Martin has done the same kind of work she will do on this court. She has issued numerous scholarly and well-reasoned opinions that, albeit without precedential effect, have carefully analyzed legal authority and applied that law to the facts before her.

Eventually, the car became a source of comfort to me. If Judge Martin’s car was there, all was well in the courthouse. The car became almost a building mascot. There were three landmarks at the Russell Building: the United States flag, the inelegant entrance to the building through the loading dock, and Judge Martin’s car. I still find myself looking for that car every day.

But she has done much more than that. Faced, as we district judges frequently are, with a rather incoherent



Investiture Ceremony of The Honorable Beverly Baldwin Martin

One might wonder why did Judge Martin work so hard? Whether she worked a little or a lot, she was not going to be fired. Judges aren’t paid by the hour, so there was clearly no financial incentive. The answer to that question provides an insight into Judge Martin’s character and helps to explain why she has acquired a reputation as such a fair and thorough judge.

and with the dignified bearing that she always carries herself, nonetheless be able to reach out to those women and offer them a respect that they probably had rarely received in their lives. This attorney indicated that it was a talent that was impressive to behold, both because it helped to garner more effective testimony and because it helped to give these women a sense that someone cared.

Every law clerk to Judge Martin will tell you that she regularly impressed on them her approach to judging. Judge Martin would explain to her staff that for judges and law clerks, after a point, the work can become repetitive, the volume daunting, and the newness will eventually wear off. But while the veteran judge or her staff may see lawsuits as simply a necessary part of their daily lives, for the party who is involved in the suit, that litigation may be one of the most important things that has ever happened to that person. Therefore, as Judge Martin explains each year to her clerks, she and her staff work hard because she strives to give each case the same importance that the litigants attach to that case. Indeed, Judge Martin’s clerks emphasize that there were no small cases in their chambers. She would treat a seemingly insignificant case with the same care that she might handle a more high-profile case.

Judge Martin could do this, and can do this, because her respect for all with whom she comes in contact -- as the oath recites: both the poor and the rich -- is not contrived. It’s genuine. At bottom, even though Judge Martin has achieved very lofty positions, it has never been about her. It has always been about her duty to the institution to which she belongs and to the people that the institution serves. In short, while we federal judges sometimes get a rap for being arrogant or imperious, Judge Martin proves the lie to that stereotype. She is self-effacing and always humble. She is other-oriented, not self-oriented. She focuses on the duties she is determined to fulfill, not the title or the trappings of the job. Judge Dubina, you all know that Judge Martin has achieved an excellent reputation as a judge, but you may be wondering what kind of a colleague she will be. I think that one anecdote will tell you all you need to know. In the last weeks and months that Judge Martin was still on our court, awaiting confirmation, she worked tirelessly to resolve as many of her cases as she could. Even for her, she stepped the work level up a notch, and the car hardly ever left the parking lot. She knew that our court was down three judges, and would be down four with her departure, and she worried about the further strain on all of us that her departure would cause. Whenever we spoke and communicated through emails, she was always apologetic for leaving us with work not yet done.

To practice that philosophy, to give each case and its parties the respect that was due them, Judge Martin believed, and still believes, you simply have to put the time in to do the job right. There are no short cuts. Judge Martin demonstrated her conscientiousness toward litigants and their lawyers in ways other than poring over the record. Lawyers consistently remark on how respectful Judge Martin is to any lawyer or party who is in her court. Those of you who know her know that she has a warm demeanor that is both firm, but, at the same time, is welcoming and puts people at ease. She has a real common touch with people who might otherwise be intimidated or uncomfortable in a court setting.

Even on the eve of her confirmation, when we would have understood if she had been measuring for drapes in her new chambers or maybe just taking a well-deserved vacation, she was knocking the work out like nobody’s business. After confirmation, she even volunteered to come back to our court and finish about 35 sentencings on cases that she had tried or taken the plea on, as well as to complete a difficult § 2255 petition. We gratefully accepted the offer.

This talent did not emerge after she became a judge, but I believe was evident in her prior career. One of the attorneys who worked with her in the United States Attorney’s Office indicated that, as an AUSA and a U.S. Attorney, Beverly Martin had a really effective way of connecting with people with very different backgrounds from her, and particularly those less fortunate people who lacked education and resources. This attorney indicated that, during one case, then-AUSA Martin had to meet with some very poor, pitiful, inarticulate female victims who had endured a very rough life and who would be witnesses in the case. AUSA Martin would go into veritable shacks and, albeit dressed professionally

Toward the end, I told her that she had given way more than anyone could expect and I suggested that she take a week off for a vacation. I made a really persuasive argument -- but, of course, I always think that my arguments are persuasive. She would nod agreeably, as Beverly will do, and say, “That’s a good point.” But finally, I said, “You’re not going to do it, are you?” She answered, “I don’t think so.” continued, next page



Investiture Ceremony of The Honorable Beverly Baldwin Martin

life in coffee spoons.” I sometimes think that we judges measure our lives out in six-month lists and Speedy Trial Act reports; lawyers measure theirs in discovery schedules and trial calendars.

I thought that her conduct in those waning days of her district court career was simply extraordinary. She had a lot of pressures on her, and no one outside of those of us on the Northern District of Georgia bench would have known if she had left a docket in good shape or one that was a mess. Yet, she had such a devotion to our court, as an institution, and such loyalty to her soon-to-be former colleagues, that she continued to give it everything she had until the very end. It showed a real selflessness that we will always remember. So, I think she will be a wonderful colleague.

And suddenly, one day you look up from your work, and you notice that 10 years have gone by in the blink of an eye. I think that transitions such as the one we are celebrating here today prompt us to shift our focus and to reflect on the personal aspect of what we do and on what the people we work with and work for mean to us. So, the bitter part of this is simply that Judge Martin has been a wonderful colleague and friend, and all of us in the Northern District of Georgia court family will miss her enormously. Our loss is truly your court’s gain, Chief Judge Dubina.

And, in conclusion, I said I would touch on the “bitter” part of this bittersweet experience. Those of us in litigation -- both judges and lawyers -- work very hard. It seems as if the incoming always exceeds the outgo, and the work can feel endless sometimes. I’m often reminded of the T.S. Eliot poem, “The Love Song of J. Alfred Prufrock,” where the protagonist laments that he has “measured out his

And I thank you for inviting me to participate in today’s ceremony.

Judge Martin is evenhanded and with an outstanding work ethic By the Honorable R. Lanier Anderson III, Senior Judge, Eleventh Circuit Court of Appeals When Beverly asked me to say a few words at her investiture, I said, “Well, Beverly, you know, I did that when I swore you in informally,” because she had to go to work immediately. So I swore her in informally in Macon a couple of months ago, I guess. And I said, “You know, I mostly talked about knowing your family,” And she said, “Well, that would be wonderful. They will have heard plenty about me, and I’d be delighted if you would just talk about my family.” That is just the kind of person she is. Like Chief Judge Carnes said, she’s always thinking about other people and not herself.

And that wasn’t just for me. He did that for young lawyers. He was known for mentoring young lawyers. Her father is a prominent and respected Macon lawyer, and I count him as a close friend and a sometime fishing partner. I do acknowledge that as the years have passed and as the stiffness has settled in, we more often sit on his deck and watch the river run by. But it wasn’t too many years ago that he fished with Gerry Tjoflat and me in the Towaliga River. But we do get in the river in canoes occasionally. It was just a couple of months ago that my friend’s son and Beverly’s brother Fred rescued me from a rock in the middle of the river after my canoe had capsized because my fishing partner – not Baldwin, but another one – had turned the boat over.

It was a special honor for me that the president chose my old friend and fishing partner’s daughter to replace me. And I promise you I had nothing to do with it. She did it all on her own. When the word came down she was being considered, I knew that she had to be a superb lawyer and judge. I did not know her personally very well. I just knew of her a little bit. But I’ve known the family all my professional life.

Knowing her family, I had high expectations. But when I investigated her actual background, even my expectations were exceeded. She went to Stetson. She graduated from Georgia Law School. She went back to the family law firm, the firm founded by her great-grandfather. She was the fourth generation of Martins to practice in that firm, and she practiced there in private practice for a number of years.

When I was a fledgling lawyer appearing for the first time before the Georgia Public Service Commission, her grandfather took me under his wings. He introduced me to the people I needed to know; he showed me the ropes.



Investiture Ceremony of The Honorable Beverly Baldwin Martin

In 1984, she left the family firm and went to Atlanta to work under Mike Bowers as attorney general with the State of Georgia. I tried to talk to Mike Bowers – I think I see him out there in the audience – but he was in the trial of a case and wasn’t able to return my call. But I talked to one of his lieutenants. And, Mike, if I say anything that’s not correct, you just correct me, if you would.

to said that she related well to everybody at all levels. For example, she had the enthusiastic commitment and involvement of the local law enforcement, of the community leaders themselves, and other people involved. In other words, she wasn’t just a good, firm law enforcement officer, but she had the wisdom to employ efforts to make these communities more law-abiding communities.

She came there, according to your lieutenant, hungry to try cases. She was assigned to the transportation section where she was representing the Department of Transportation and its employees, trying many important cases. In due time, Mike recognized her merit and her promise and promoted her to be the head of one of five or six divisions in that department. Her division was the Regulated Industries and Professionals Division, where she managed a number of lawyers and was engaged in litigation involving doctors and dentists and the medical licensing board and other professional licensing boards. In other words, a lot of litigation experience, a lot of management experience.

As Chief Judge Julie Carnes has noted, she is noted for her work ethic. One of her close friends gave me an example of her work ethic. When she was having some back problems – incidentally, she’s got a steel bar in her back, so you don’t want to get on her bad side – but when the doctor told her it would help to do “a little walking,” she started walking 10 miles a day. So, lawyers, you better be prepared because she’s going to be prepared. Another thing the lawyers kept talking about was that she was evenhanded and showed no biases. And that, it seems to me, explains that her nomination was one of those non-partisan moments that we all like to see. She was, of course, nominated by a Democratic president, but Georgia’s two Republican senators enthusiastically supported her. She was confirmed 97-to-nothing unanimously.

After 10 years there, she received an appointment as an Assistant United States Attorney and returned to Macon. After three years as an assistant, the president named her to be the United States Attorney for the Middle District of Georgia. I talked to the longtime First Assistant in that office. Of course, Beverly worked for him for three years when she was an Assistant U.S. Attorney; and then when she was United States Attorney, he worked for her the next three years. Here’s what he had to say about her.

This is what these two senators told the Senate. She had a balanced temperament, an evenhanded approach. She was tough; she was fair. She had a passion for doing what was right.

She was a hands-on U.S. Attorney, taking a keen interest and firm hand in the important criminal cases. She was energetic. She brought new ideas. She made management changes that sometimes took courage. She brought the office from a low-key office in the backwaters – that kind of bothered me because I’m a Maconite, too, but this is what he said and he lives in Macon, too – to parity with larger and more prominent offices within the Justice Department.

Chief Judge Dubina, in Judge Martin the court has a dedicated and hardworking judge with all the qualities that go to make up a great judge. She has ample brain power to understand the most difficult cases. She has the dedication and persistence to work at it until she does understand it. She has an even-handedness and a lack of preconceived biases. She has an excellent judicial temperament, and that is borne of a genuine humility and a genuine respect for the lawyers and the litigants. And, finally, she has a genuine compassion for humanity.

An example of that is she implemented the program known as Weed and Seed. It’s a program whereby the local community is mobilized to devise ways to weed out drug activity in the community. Everybody that I talked

Beverly, it is a special honor for me to be succeeded by you



Investiture Ceremony of The Honorable Beverly Baldwin Martin

A privilege beyond anything imagined Response by the Honorable Beverly Baldwin Martin Thank you so much for being here today. I will remember this day for the rest of my life; and, when I think of it, I will remember your faces here. So, I am grateful to you for coming.

And, so, to protect me in that role, I don’t have to stand for popular election as the other branches of government do. I’ve also sworn today to do equal rights to poor and to the rich and that means something a little bit different to me today than it did 10 years ago. A lot of people that we see in the trial court don’t have many resources. They don’t have resources to affect elections. They don’t have resources to hire lobbyists. So, when something has happened to them and the law hasn’t been applied to them properly, this is where they come. Many of the people who you’ve seen here today, the judges, that’s who they see.

But I know, as has been said, that you’re not really here for me. You’re here because of the position that’s been entrusted to me now for the rest of my life. We’re all here to celebrate the workings of our Constitution and the fact that the executive branch of government and the legislative branch of government can come together to fill a vacancy in the third branch of government, that being an independent judiciary. Somewhere along the way, someone decided that judges don’t take their oath in private or in secret but that they do it in public for all to see what I’ve promised today. And for me, I will confess that I understand the oath a little bit differently today than I did almost 10 years ago when I took it.

It is a privilege beyond anything I ever imagined, and certainly anything I deserve, to take this oath today, and I appreciate you being there with me to do it. Now, I need to thank some people. I want to thank President Barrack Obama for appointing me to this position, seeing fit to nominate me. I need to thank Sens. Saxby Chambliss and Johnny Isakson for helping me to get confirmed in the Senate. My senators spoke at my hearing before the Judiciary Committee. I know that they worked to get a vote scheduled and see my confirmation all the way through.

As you know, the oath taken by the United States president comes from the Constitution. give it all I’ve got, He swears to execute the duties of that office and to and I’m going to uphold the Constitution. try as hard as I can. For senators, members of our legislative branch, they take a little bit different oath, but they swear to perform the duties of their office and to uphold the Constitution. You will notice that I said something a little bit different today because judges take an oath to administer justice without respect to persons.

I promise you I will

In thanking my senators, it seems a necessary part of that to thank Mike Bowers. I worked for Mike Bowers for 10 years, as many of you know. When I left his office in 1994, I really didn’t see much of him after that. He works all the time, so if you don’t see him in court, you probably aren’t going to see him much. I had no reason to expect that he should or would see fit to help me, but he did. He took it upon himself to talk to both of Georgia’s senators.

I saw a friend of mine this week who’s a doctor, and he told me about the hardest thing he did when administering medicine. He said, “The patients who are disagreeable and suspicious and just sometimes plain mean probably get better medical care because I’m so conscientious about trying to be sure that I do my job and perform the necessary medical services.” And I thought that was a pretty good description of administering justice without respect to persons.

I also know that Mike Bowers had a long telephone conversation with Sen. Jeff Sessions from Alabama because they were attorneys general at the same time. Perhaps, as a result of that conversation, Sen. Sessions helped me, and I’d like to thank him today, as well as Sen. Patrick Leahy. A part of this process is also being reviewed by the American Bar Association. Leonard Gilbert is here today. He was given a pretty short deadline to talk to 100 lawyers about me, and he did that. He was utterly gracious. I’ve always known about you, Mr. Gilbert, but it was so nice to have an opportunity to meet you.

I am given the privilege of having a lifetime tenure which neither other branch of the federal government has because I think that the people that set this system up understood that sometimes I’ve got to rule in favor of someone who society doesn’t approve of; someone who’s unpopular.

While we’re on the subject of senators, the last time I



Investiture Ceremony of The Honorable Beverly Baldwin Martin

did this we had another senator, and he’s here today – Sen. Cleland. Max, I know that I wouldn’t be standing here without the opportunities that you gave me. I’ll never forget coming to the Richard B. Russell Building to interview with you for the U.S. Attorney position. I love you, I appreciate you, and I thank you for being here today.

for him. He was always generous, and he was always accommodating. Those of you who know Knox know that he often has some ideas about how things might be done better. Even today in the halls of the Department of Justice, he is very affectionately known as the field commander.

Judge Dubina introduced my family, but I wanted to do that just a little bit more. My father, Baldwin Martin, is here. He is a third-generation lawyer. He has four children, and all of us adore him. We all celebrate any time that we have with him. I’ve never made a secret of the fact that the reason why I went to law school was to have something else to talk to my daddy about.

I’ve got to mention my colleagues on the District Court. Thank you so much for coming. I know at least one trial was adjourned today to do this. When I asked Julie to speak, I knew I was asking the busiest person I know. She has what I consider to be at least three full-time jobs; but, now after you’ve heard her speak, you understand why she’s given all the responsibilities that she has.

People say to me, “Your father must be so proud.” And, that’s right, he is. He tells me all the time “I am very proud of all four of my children.” But the truth is that if I’d done something really bad and that was why we were here, he’d still be here. He’d find something nice to say about me because that’s the kind of man he is and that’s the kind of father he is.

I think about my time on the District Court, and it was such a fluke for me to ever be there in the first place. Max, even though I love you, I know I wasn’t your first choice. I arrived there with these people who I have admired and respected for so long and had to figure out how to do what they do. They touch so many lives, and they do it in ways that people never know about, in ways that require courage and hard work that no one ever hears about. It was such a privilege for me to be a part of your court, and I admire you with everything that I know.

My mother, Joyce Martin, is here, too. All of us adore our mother as well. From my perspective, my mother’s always had a certain position in life. I’ve known her 54 years now, but I’ve never seen her use her position to put somebody else down because she was in a position to do that. It happens all the time that I go somewhere where someone will come to me and tell me about some remarkable act of generosity that my mother did for them, quietly. She doesn’t tell me, and I don’t think she tells my daddy. We all want to be more like her. From time to time, I have a good day as a trial judge. When it would happen, I would leave the bench and I’d think, you know, I sounded like my mother.

Every time I begin to worry about this country, I think about my law clerks, and it makes me feel better. They’re smart, they work hard, and they love their country. Every one of them made a sacrifice to come and help me with this job, and many of them made a sacrifice to be here today. Thank you for being here. Now, I have my new colleagues. Judge Anderson, thank you for your remarks. I think you’ve probably done your duty on that. We were kind of hoping you wouldn’t tell the story again about Fred rescuing you because we have to unpuff him every time he does that.

I introduced my parents first because they’ve put up with me the longest, but I’m going to introduce my husband next because he puts up with me the most. Knox has been a partner at Sutherland Asbill & Brennan for a long time now, and that’s the same firm where Judge Tuttle practiced.

And, Saye Sutton, thank you so much for bringing the Boy Scott Troop 2010. Saye is doing good work with those children. It’s wonderful to have them. Now, I’m going to leave here, and I’m going to go sit on the bench, and you won’t hear from me much anymore except for what I write. I want to tell you I know I’m going to make mistakes. I know I’m going to disappoint you from time to time. But I promise you I’m going to give it all I’ve got, and I’m going to try as hard as I can. Thank you again.

When Cassandra Butts called me to ask me if I would do this, I, of course, asked her if I could have the evening to talk to Knox about it. He encouraged me and supported me and has ever since. But I know now that he had no way of knowing what an intrusion of his privacy it would be and how much of a time commitment it would cause



Openings of Jacksonville, Tampa Middle District historical exhibits are fruits of a long-range plan By Phillip A. Buhler, Jacksonville and Raymond T. “Tom” Elligett Jr., Tampa The Middle District Historical Committee hosted opening receptions for the courthouse history exhibits in Jacksonville in June 2009 and in Tampa, this June. Funded by Middle District lawyer dues, when completed, similar exhibits on various aspects of how our legal system works will appear in each courthouse, along with exhibits unique to each of the five divisions.

members wanted to use the exhibit to provide a basic explanation to the non-lawyers who use the courthouse as well as members of the community, such as teachers, who could utilize the exhibit as a teaching tool. As such, it was decided that a separate part of the exhibit should be devoted to a “civics lesson” in the fundamentals of the federal court system.

Comprised of judges, The Jacksonville exhibit lawyers, and staff from the includes a series of exhibit clerk’s office, the Historical tables in the entrance hall of Don Wilkes and Wayne Lee Thomas stand behind the Gov. Claude Committee met for several the courthouse outside the years on a variety of projects, Kirk display panel in the Tampa history exhibit, which opened n U.S. Marshal security zone. June. All photos courtesy of Tom Elligett Jr. including the courthouse These tables present photos, exhibits. The committee collaborated with Hughes documents and explanations showing the establishment Bowman Design Group of St. Augustine, which designed of the Court in 1962, as well as a brief description of the the layouts and shared in the research and text, to present federal court system in Florida before the creation of the what can be complex legal concepts in a manner that Middle District. The exhibits then present some of the non-lawyers and lawyers can appreciate. key issues addressed by the Court in the 1960s, including the civil rights movement and some unique legal Jacksonville Opening controversies such as the dispute over the Cross-Florida Barge Canal (one of the earliest large environmental The first exhibit of the project opened in the Bryan cases). The exhibits are intelligible for persons not Simpson U.S. Courthouse in Jacksonville on June 19, 2009. trained in the law and give them an appreciation of the This exhibit served as the flagship for this aspect of the importance and role of the U.S. District Court. Court historic project and was the product of a number of years of planning. A separate part of the exhibit is set on the 11th floor of the The committee decided that the exhibit should spotlight courthouse devoted to an explanation of the workings key cases and legal controversies that took place in the of the federal court system, the civics lesson envisioned Jacksonville Division of the Middle District during its first by the committee. This includes an interactive aspect decade of existence in the 1960s. In addition, committee wherein the reader is asked to participate in the system

(L-R): Chief U.S. District Judge Anne Conway; Senior U.S. District Judge Susan Bucklew; U.S. Magistrate Judge Elizabeth Jenkins.

10

through questions along the lines of “you be the judge” with answers found by opening small doors on the exhibits with an explanation for why a matter would be resolved in a particular way. This makes for an educational tool that can be used for elementary and high school pupils as well as adults. Chief Judge Anne Conway opened the well-attended ceremony, which was held in the jury assembly room. Attendees received a historical perspective from Phillip Buhler, president of the U.S. District Court Historical Society. The exhibit was formally opened by Senior District Judge Harvey Schlesinger, and an explanation of funding was provided by District Judge Timothy Corrigan. The Honorable Karen S. Jennemann, U.S. Bankruptcy Judge from Orlando, who has been a driving force behind the Historical Committee since its inception, acknowledged the many people who helped to bring the project to fruition. Attendees were able to tour the new exhibit.

Harley Riedel and U.S. Bankruptcy Judge Alexander Paskay stand behind the Lykes Brothers Steamship Co. display panel.

The Jacksonville exhibit remains a centerpiece at the entrance of the Bryan Simpson U.S. Courthouse, and the Court has received extensive positive response to this pioneering exhibit. Based upon the exhibit’s success, future exhibits in the Middle District can be well guided to their completion.

Tampa Opening The committee also chose a lunch program to unveil the exhibits at the Sam M. Gibbons Courthouse in Tampa. To honor Tampa’s Latin heritage, a menu of Spanish salad, chicken, black beans, yellow rice, Cuban bread and other local-flavored cuisine greeted attendees. The Sacajawea Unit of Girl Scout Troop 81 presented the colors and led the Pledge of Allegiance. Chief U.S. District Judge Anne Conway provided an overview of the committee’s origination and goals.

U.S. Bankruptcy Judge Karen Jennemann.

Judge Alexander Paskay and many of the lawyers, law clerks and court personnel from the featured cases attended and were recognized at the ceremony.

Judge Susan Bucklew described the first floor case-specific exhibits and the shared exhibits on the third floor. Given Tampa’s varied legal history, Judge Bucklew explained the challenge of selecting five cases when there have been numerous other high profile criminal and civil cases, from the rights of AIDS victims to the right-to-die.

Judge Elizabeth Jenkins, chair of the Educational Outreach sub-committee, detailed several projects underway such as introducing local teachers to the availability of the exhibits as teaching tools. She also credited those who arranged the ceremony itself, including Judge Catherine McEwen and Anne-Leigh Moe.

The profiled cases included the late Judge Ben Krentzman’s order fining then Gov. Claude Kirk $10,000 per day until he complied with the Court’s public school desegregation order – which the chief executive promptly did.

Long-time U.S. Rep. Sam Gibbons, for whom the Tampa Courthouse is named, was unable to attend in person but appeared by a video message speaking eloquently about the importance of the rule of law in a civilized society. The Tampa exhibit describes the history of the Middle District and the local federal courthouses and chronicles Gibbons’ life of service to his community and nation, which continued long after he parachuted into France on D-Day.

The exhibits detailed two very different actions related to Tampa’s rich maritime history: the Sunshine Skyway Bridge disaster in 1980 and the Lykes Brothers Steamship Co. bankruptcy. One featured criminal case discussed the BCCI prosecution, one of the largest money-laundering prosecutions in U.S. history, culminating in the trial of 15 individuals and four corporations after a two-year FBI undercover operation. The other highlighted the 1995 four-and-a-half month trial of 16 members of the Outlaws Motorcycle Clubs.

Judge Karen Jennemann, the committee co-chair, concluded with comments on the committee’s future projects. In addition to the exhibits in the remaining three courthouses, the goals include a scholarly book on the history of the Middle District, which celebrates 50 years of service in 2012.

11

Bankruptcy basics video available in Spanish, Haitian-Creole The Bankruptcy Bar Association of the Southern District of Florida announced that it has coordinated the translation of a video explaining the bankruptcy filing process into Spanish and Haitian-Creole. Previously only available in English, the 36-minute video presents a general explanation of the bankruptcy process and is directed at individuals who are seeking information about representing themselves in a bankruptcy case (a “pro se” filer). To watch the video in English, Spanish or Haitian-Creole, and learn about the additional resources available to individuals wishing to file a bankruptcy petition without an attorney, please visit the following websites:

 U.S. Bankruptcy Court Southern District of Florida: www.flsb.uscourts.gov/Pro_Se/pro_se_ frame.html  U.S. Bankruptcy Court Middle District of Florida: www.flmb.uscourts.gov/bankruptcybasics/ default.htm; www.flmb.uscourts.gov/consumerdebtor  U.S. Bankruptcy Court Northern District of Florida: www.flnb.uscourts.gov/pro_se/Default. aspx Additionally, the bankruptcy basics videos will soon be available with closed-captioning in English, Spanish and Haitian-Creole. The Bankruptcy Bar Association of the Southern District of Florida is committed to providing pro bono services in South Florida, educating individuals on financial literacy through the national CARE program and assisting individuals with the bankruptcy process through the BBA’s pro se clinics. Although it seeks to educate pro-se bankruptcy filers, the Bankruptcy Bar Association of the Southern District of Florida encourages individuals to seek legal counsel due to the potential complicated issues that may arise in a bankruptcy case. Production of the translations was made possible through generous funding provided by the Bankruptcy Bar Foundation of the Southern District of Florida, the Florida Bar Foundation,and the American College of Bankruptcy. It was coordinated by the Bankruptcy Bar Association of the Southern District of Florida, by attorneys Ross R. Hartog and Ido J. Alexander of Markowitz, Davis, Ringel & Trusty, P.A. The translated videos are based on the Bankruptcy Basics video, which was coordinated by the Tampa Bay Bankruptcy Bar Association. For questions and additional information concerning the videos, please contact Ross Hartog, Esq., a past president of the Bankruptcy Bar Association for the Southern District of Florida, at (305) 670-5000.

The Eleventh Circuit Historical Society P.O. Box 1556  •  Atlanta, Georgia 30301 (404) 335-6395 I hereby apply for membership in the class checked below and enclose my check for $___________ payable to the Eleventh Circuit Historical Society. Annual Membership _______ Student _______ Individual _______ Associate _______ Contributing _______ Sustaining (individual) _______ Keystone (law firm)* _______ Patron

$  5.00 50.00 100.00 250.00 500.00 500.00 1,000.00

12

Name _ ________________________________________ Address _ ______________________________________ Telephone _ ____________________________________ E-mail _________________________________________ *KEYSTONE FIRMS: Please name five (5) members of your firm to be Society members. (1) ____________________________________________ (2) ____________________________________________ (3) ____________________________________________ (4) ____________________________________________ (5) ____________________________________________

Tribute to Judge Wilbur Owens Judge Owens taught the value of hard work, ethical conduct, camaraderie and being organized By Stephanie E. Parker, Law Clerk, 1984 -1986, Partner, Jones Day It is such an honor for me to have this opportunity to write about Judge Owens. I was privileged to serve as one of his law clerks from 1984 to 1986 when he was Chief Judge of the Middle District of Georgia.

relationship with his fellow judges. During my clerkship, Justice Lewis Powell was our Circuit Justice and he and Judge Owens shared a mutual friendship and love of Vidalia onions. They corresponded every year during Vidalia onion season. When Judge Duross Fitzpatrick joined the court during my clerkship, Judge Owens went out of his way to be sure that Judge Fitzpatrick had all the assistance he needed to get started on the bench – including sharing his clerks for a bit.

I am thankful every day for the experience of getting to know Judge Owens and clerking for him. Like all of his clerks, I learned so much from him and my clerkship was the best job a young lawyer could ever have.

He taught us about the art of trying cases to a jury. We were brand-new lawyers and he took the time after every trial to sit down with us to discuss what worked – and what didn’t – with the jury. He told us stories of past trials and trial lawyers’ skills. He liked closing arguments the best, and he was generous to us by allowing us to sit in the courtroom and observe his trials.

By his example, Judge Owens taught his clerks many lessons that serve us well in our practices and lives, and we have treasured memories of our times with him. He taught us the value of hard work. Many a time, he worked late and through lunch due to a jury trial. He always said we should take whatever time we needed to thoroughly research issues for him. I never saw him rush just for the sake of finishing an order. He wanted us to take the time, and do the hard work to make it right.

He taught us the importance of being completely ethical and maintaining credibility with the Portrait of Judge Wilbur D. Owens Jr. by portrait court and jury at all times. Woe to artist Robert Kuester from Albuquerque, N.M. the lawyer who was not candid (Courtesy of Greg Leonard, Clerk, MDGA) He taught us the value of with the court. Judge Owens always camaraderie, friendship, and respectfulness as colleagues. reminded us not to overlook discussing adverse precedent He was always, always friendly and respectful to lawyers that might hurt our credibility if not mentioned. and others who greeted him on the street or at his favorite He taught us the value of good management and restaurants – Jeanine’s on Mulberry Street or Len Berg’s organization. He kept up with his very heavy caseload “in the alley.” We had so many memorable discussions and was a good manager of his docket – an exceptionally over lunches there. All of us remember “HMFPIC” (Home important trait for a trial judge. Every day, he would Made Fresh Peach Ice Cream) days during the summer at review the mail, motions and such from the clerk, and Len Berg’s! And banana pudding at Jeanine’s! Except for then carefully respond and route each one. Nothing the days when he attended Rotary Club lunch meetings, “got lost” in his office and everything was disposed of he had lunch with his clerks every single day. What an efficiently and in a timely manner. amazing gift to us. As new lawyers, being able to sit with him and talk about travel, Macon, our families, and “the He taught us by his example the importance of being law” was an incredible experience. courageous, of doing what you believe in, and of being fair and just regardless of public opinion. I recall criminal Other examples of his collegiality are shown by his continued, next page

13

Tribute to Judge Wilbur Owens hearings where we feared for Judge Owens’ safety (back then, he simply parked out front by the courthouse and with no security). He presided over many important civil cases, but I always felt that he reserved extra time and attention to criminal sentencing. He read every paper himself and carefully considered each victim and each defendant. As I hope you can tell from the above, his clerks were devoted to him and I know I speak for all of us when I say we miss him terribly. He was such a tremendous influence in our lives. When he decided to take senior status, the clerks conferred on what we could do to express in our small way our appreciation and love for him. We decided to endow a scholarship in his name at his alma mater, The University of Georgia School of Law. Every single one of his clerks contributed to fund his scholarship – an expression of our respect and admiration for him. We decided to provide that it would be awarded to students from the counties that comprise his beloved Middle District of Georgia. I am happy to report that the Judge Wilbur D. Owens, Jr. Scholarship is awarded annually and continues as a memorial to him.

importantly, the opportunity to work for him at the start of my career. He was a great judge and a true gentleman, and we miss him.

William Augustus Bootle Federal Building and U.S. Courthouse, Middle District of Georgia Headquarters, Macon, Ga, is the courthouse where Judge Wilbur D. Owens Jr. worked. Photo courtesy of Greg Leonard.

I will forever be grateful for the opportunities Judge Owens gave me, the lessons I learned from him and, most

Ceremony commemorating senior status of the Honorable Wilbur D. Owens, Jr., Judge, U.S. District Court, Feb. 3, 1995, U.S. Courthouse, Macon. Photo courtesy of Stephanie E. Parker.

14

Tribute to Judge Wilbur Owens Eulogy:

Judge Owens’ imprint will wear like granite By the Honorable Hugh Lawson, Senior U.S. District Judge, Middle District of Georgia I had been a lawyer seven years when Wilbur Owens was called to the bench. I had little or no legal work in his court, but Judge Owens’ presence on the federal bench was felt in Hawkinsville and he was widely regarded as a most able, if somewhat strict, jurist. Many of the lawyers of my generation who appeared before Judge Owens were afraid of him and those who did not fear him approached him with great respect.

throughout his community. To be his successor made the appointment to the district court bench doubly attractive to me. It soon became evident to me that Judge Owens was the object of love and deep affection among those who worked with him on a daily basis. He seemed to regard everyone in the courthouse family as his friend. He spoke to one and all and invited them to respond to him. He was concerned about those with personal problems and his advice was freely given to those who sought his counsel. He possessed a sense of personal warmth, which was accentuated by the evident pleasure he took in his relations with his courthouse friends.

My acquaintance with Judge Owens began when he was the subject of an unflattering article in the American Bar Journal. I read the article because it concerned my federal judge and I was incensed at how unfairly Judge Owens had been criticized. So I wrote to Wilbur and communicated my view of the matter and he wrote back and thanked me for my good opinion. Thereafter, though our contacts were infrequent, Wilbur knew who I was and our relationship was cordial. But little did I realize how my personal affairs would be intertwined with Judge Owens’ career.

My personal relations with Judge Owens after I became his colleague could not have been more pleasant or satisfactory. He welcomed me to the court with open arms and did all that he could to see that my adjustment to the federal system was clean and easy. He came by often to see that all was well with me and insisted that I visit his chambers. When I went to his office he was always working on something but seemed pleased to put it down and discuss whatever problem was on my mind at the moment. I quickly learned that Wilbur was a gold mine of information and enjoyed sharing the benefits of his experience. He became my friend and mentor and no one ever had one better. If I have had any success, it is due in large part to what I learned from Judge Owens.

When I had been on the superior court bench for about a dozen years, I realized that if I ever wanted to do anything else in the judiciary I had better stir my stumps before I became too old. Several opportunities presented themselves and I applied without success. Finally, when Judge Louis Sands was appointed to our district court, an appointment for which I had also applied, I gave up and reconciled myself to serving out my career as a superior court judge -- a prospect not to be scoffed at and not of itself unpleasant -- but nevertheless not exactly what I wanted to do. And then, lo and behold, Judge Wilbur Owens decided to become a senior judge, creating an opportunity I had neither anticipated nor considered. I applied for the job and the rest, as they say, is history.

Wilbur is gone but his imprint will wear like granite. Those who knew him privately will remember the warmth of his personality and the depth of his affections. Those who encountered him in his public capacity will recall his integrity, his patience and his impartiality. At the end of the day Shakespeare described him best in “King Henry VIII”: “Heaven is above all yet; there sits a judge that no king can corrupt.”1

Wilbur probably never thought about it one way or the other but I was proud to assume the seat which he had held. He was a distinguished judge, a man of posture and respect known and admired within the judiciary and

1 “King Henry VIII,” Act III. Scene 1, Line 99.

Visit the 11th Circuit Historical Society Website: http://sites.google.com/site/circuit11history 15

Tribute to Judge Wilbur Owens Eulogy:

Judge Wilbur D. Owens Jr. Funeral service – April 30, 2010

By Gregory J. Leonard, Clerk of Court, Middle District of Georgia. about what book one of us was reading or what movie I had seen last. And we often talked about our love for new cars.

How appropriate it is that we have such a beautiful day to pay our respects to Judge Owens. He would be the first to recognize how pretty it is and to comment on it.

I wasn’t the only one in the court, of course, who enjoyed the benefits of working with Judge Owens. In the federal judiciary all judges hire law clerks. These clerks are usually the best and brightest law school graduates who seek out federal clerkships before jumping into the practice of law. Clerking for Judge Owens was a ticket to success in a legal career. Judge Owens had many outstanding law clerks who remained very loyal to him and who he loved very much. When he took senior status at the age of 65, many of these former law clerks got together and endowed a scholarship in Judge Owens’ name at the University of Georgia Law School. This was quite a tribute to the judge and every year I get a nice brochure from the University that is entitled the Judge Wilbur D. Owens, Jr. Scholarship and contains information about the recipient of that year’s’ scholarship. I know he was proud to have that done in his name by his law clerks.

I first met Judge Owens in 1976 when I moved to Macon, Ga., and began working at the U.S. Attorneys Office. I soon started handling cases assigned to the Judge and learned quickly to fear trying cases in his court. Not because he was mean to us young lawyers but because we knew that we had better be prepared or be embarrassed. In 1984, Judge Owens and the late Judge Robert Elliott began a search for a new Clerk of Court. I thought the job sounded interesting but I then wondered why I would want to actually work for a judge who seemed so intimidating. My instincts told me, however, that I should go for it. Fortunately I was hired and for 25 years I worked daily with Judge Owens, first as our Chief Judge then as a Senior Judge. My instincts were entirely correct. I could not have found a better job. As I reflect on all the years with Judge Owens, it occurs to me that our relationship can be defined in three phases. First, of course, he was my boss. There was never any doubt about that. As time went on and we sort of got used to each other and comfortable, the relationship changed to more of his being my mentor. We worked on many, many projects over the years. We drove to Atlanta often trying to get funding for and designing a new courthouse in Albany. We wrote local rules and we talked about pending cases. Work was actually fun and rewarding. In the latter years, our relationship evolved into the Judge moving from boss and mentor to a dear friend. It is these years that I will relish the most. It’s not that we shared personal matters so much because neither one of us had that kind of personality. But we talked over lunch many a day

We have many more judges now than we did when I started as Clerk with Judge Owens as Chief and Judge Elliott in Columbus. The district grew fast and before I knew it, we had six district judges and three magistrate judges. Each of these gentlemen earned the title of judge and made us proud. But in spite of the number of judges, Judge Owens continued in my mind as The Judge. When talking to my staff, if I simply used the identifier, The Judge, everyone knew I meant Judge Owens. He was and is my judge. God could not have made a kinder or more gracious man. On behalf of all the court staff, all the past law clerks, many of whom are here today, on behalf of Linda Byus, the judge’s long time secretary, and for myself, I say “God bless you, Judge Owens, and we will miss you.”

SHARE YOUR NEWS! Submit items for publication in the 11th Circuit Historical News to Wanda Lamar, executive director of the Society. [E-mail: wanda_lamar @ca11.uscourts.gov.] Historical articles on the federal courts and judges within the Eleventh Circuit will be considered, as well as investitures, courthouse dedications, portrait presentations, memorial ceremonies and oral history programs.

16

Georgia state bar launches military legal assistance program By Norman E. Zoller1 In 1981, I was honored to be selected to join a new federal appellate court, the first such court created by Congress in 52 years. In due course, I not only served the Eleventh Circuit for more than a quarter-century, but also was able to serve in the National Guard and Army Reserves2. Little did I know then that I would eventually be able to combine my court experience with my military experience to help establish a new program sponsored by the State Bar of Georgia and Georgia Legal Services. Begun early this year, the project is formally known as the Military Legal Assistance Program, and in simplest terms, connects volunteer lawyers (700 of them have stepped forward, thus far) with military service members and veterans needing legal assistance. The legal services are being provided by the lawyers on either a pro bono or a reduced-fee basis. In December 2009, the State Bar of Georgia appointed me the Coordinating Attorney for the Program.

have come mostly from throughout the state of Georgia, a few from other states where jurisdiction is in state courts in Georgia (none yet for a federal court), and from Iraq and Afghanistan. Service members from abroad typically have heard about the program via the Internet or word of mouth from their fellow military service colleagues stateside. Nearly half the requests for legal assistance have been family law matters (e.g., child support or visitation, guardianship, adoption, divorce). Regrettably, nearly half of those have been contested divorces. Although to my knowledge only the states of Oregon and North Carolina have programs similar to the Georgia model, we have been contacted by state bar officials in Florida and Texas seeking information about the Georgia experience. So it may be that other states will establish similar programs in the future.3 At a time when our country is doing a great deal to support our service members and veterans, it is inspiring to know that states in the Eleventh Circuit are also giving this kind of consideration and individual legal assistance to those who are serving and sacrificing for our Nation, many of whom have chosen to make the military their career and way of life.

So what kinds of services are provided and who is eligible to receive them? Basically, help is furnished on any civil matter according to the following eligibility criteria: • Active duty service members having pre- and postdeployment-related legal matters. • Veterans separated from the service with a servicerelated disability who are seeking legal assistance directly related to their disability. • Representation for the spouse of an active duty service member where the legal issue affects the wellbeing of the family as a whole and the interests of the spouse and service member are aligned, and in either case, the service member would have personally sought assistance had he or she been available to do so. • Eligible clients who physically reside in Georgia and require legal assistance where jurisdiction lies in the state or federal courts of Georgia. • Legal assistance to National Guard members, Reservists, and military retirees, as resources allow.

Finally, for those lawyers admitted to practice in Georgia who would like more information or may wish to participate in this program, or if you know a service member or veteran who may need legal help in Georgia, please contact me at either 404/527-8765 or [email protected].

Endnotes: 1 Mr. Zoller began his service with the federal courts in April 1981, as Chief Deputy Clerk of Court of Unit B, United States Court of Appeals for the Fifth Judicial Circuit, and was appointed October 1, 1981, as the first Clerk of Court for the U.S. Court of Appeals for the Eleventh Judicial Circuit. He was later appointed, in August 1983, as Circuit Executive for the Eleventh Judicial Circuit and so served until his retirement in February 2008. He holds bachelor’s and master’s degrees (in public administration) from the University of Cincinnati and a law degree from Northern Kentucky State University. He has been admitted to practice law since 1975. 2 This service included nearly seven years’ active duty as a field artillery officer with two tours of duty in Vietnam and then 15 years as a staff judge advocate, first in the Ohio National Guard, then in the Georgia National Guard, and later with an Army Reserve Engineer Group. 3 In Alabama, legal assistance is currently available to veterans and service members through private attorneys and on pro bono or reduced fee bases either through Legal Services Alabama (LSA: 1/866-456-4995) or through the Alabama State Bar’s Volunteer Lawyers Program (VLP) and its Armed Forces Committee (at 334/269-1515). Both these programs offer legal assistance to clients according to certain eligibility criteria and income-based thresholds. LSA is a statewide nonprofit organization dedicated to providing access to justice and quality civil legal assistance to Alabama’s low-income community. Similarly, the Volunteer Lawyers Program is a project of the Alabama State Bar, and its purpose is to provide free legal services to low-income Alabamians in civil matters.

Although the program does not provide direct support to individuals accused of criminal violations, it does help direct such individuals to public defenders or legal assistance offices which can provide such help. The results thus far have been gratifying. Through the end of June 2010, about 200 service members and veterans – our “clients”– have been connected with lawyers. Clients

17

South Alabama’s Baldwin County honors Territorial Federal Judge Toulmin, appointed by President Thomas Jefferson By David A. Bagwell top of present Florida), North of the Gulf of Mexico, West of the Perdido River and basically East of New Orleans. These West Florida problems almost led the United States to war with Spain just when the United States was about to have a second war with England (which soon became the War of 1812) and war with the Creek Indians, and Toulmin knew that we just did not need a three-front war.

In December 2009, Baldwin County, Ala., unveiled a bronze and stone marker in honor of Federal Territorial Judge Harry Toulmin on the Baldwin County Courthouse grounds in Bay Minette, Ala., and farthest South Alabama. Oddly, Judge Toulmin never even sat in what is now Baldwin County, which was then part of Spain, but there lies the story that led to the marker.

Harry Toulmin was an Englishman, the son of a Toulmin stood almost alone “dissenting minister” who as a law enforcement wall objected to the Anglican against “The West Florida Church and its required use of the Book of Common The marker honoring Federal Territorial Judge Harry Toulmin is on the Revolution of 1810” and Prayer. Harry became a Baldwin County Courthouse grounds in Bay Minette, Ala. Photo courtesy “The West Florida Republic,” whose flag was Navy blue Unitarian minister under the of David A. Bagwell with one single white star. tutelage of Joseph Priestly, That flag became more famous as the basis of the Texas who “discovered” oxygen and was chief founder of the flag with one gold star during Mexican times, and later Unitarian Church in England. during the Civil War when it was adopted by Mississippi Harry emigrated to the United States with letters of upon its secession from the Union, a flag made famous as introduction from Priestly to Thomas Jefferson and James “The Bonnie Blue Flag (That Bears a Single Star)” in the song Madison, two good new friends to have just after the written by an itinerant Irish actor who happened to be there Revolution. Jefferson appointed Toulmin to be president of at the occasion, set to the old Irish tune “My Irish Jaunting Transylvania College in Kentucky, and he became Attorney Car.” General of Kentucky, in that capacity signing “the Kentucky The main Alabama leader of the West Florida Revolution Resolution,” one of “the Virginia and Kentucky Resolutions” of 1810 was a flamboyant and well-connected local lawyer during the time of the Alien and Sedition Acts. This endeared oddly named “Joseph P. Kennedy” 9the same as John F. him to President Jefferson, who in 1804 appointed Toulmin Kennedy’s father), who later commanded the first military to be Federal Territorial Judge for the Mississippi Territory, unit into Fort Mims just after the Creek Indian massacre there land which was chopped off Western Georgia and which in the Creek Indian War, and who later commanded Indian became most of Mississippi (admitted to the Union in 1817) troops at Fort Boyer (now Fort Morgan on the Alabama Gulf and Alabama (admitted in 1819). Coast) when the Brits stopped by and took Fort Boyer after Toulmin had a tough job as territorial judge. Most of his losing the Battle of New Orleans, on their way to win at troubles arose from efforts by Americans to take Spanish Waterloo under the Duke of Wellington. West Florida away from Spain between 1805 and 1810. Secondary Alabama leaders included James Caller, who, Don’t get confused, now. “West Florida” back then did commanding Americans at the Battle of Burnt Corn Creek not include any of what is now in the state of Florida, but at the start of the Creek war, afterward wandered the was instead part of what is now South Alabama and South swamps for two weeks in his underwear until rescued by Mississippi and Southeast Louisiana, the part of Louisiana Creek “metís” (or “mixed bloods” as they used to say). In which they still call “the Florida parishes.” Spanish West Louisiana the main leader was Reuben Kemper, a big man Florida was below the 31st parallel (the line which is also the

18

with a resonant voice and eloquent profanity and, indeed, in Louisiana today this movement is sometimes called “the Kemper Rebellion.”

un bas-de-soi” or, as we would understand it, “a turd in a silk stocking” (Talleyrand’s response was the French language version of “Isn’t it a pity that such a great man should be so ill-bred!”)

As territorial Judge, Toulmin tried to have the leaders of this 1810 Revolution indicted for violation of the Neutrality Act, which forbids making war on other countries with which the United States is at peace, but the territorial grand jury would not indict, and when they did indict, the petit juries would not convict. Furthermore, Toulmin believed that West Florida was already part of the United States, and so it would not be a crime anyway, so he had mixed emotions himself.

After the United States took in West Florida and after Alabama became a state in 1819, Toulmin wanted to become its first Federal Judge, but because his standing for law and order had made him quite unpopular in the territory, he didn’t get the job, and William Crawford did instead.

As Toulmin thought, the United States had a strong claim that West Florida had been included in the 1803 Louisiana Purchase from France (by reason of “The Secret Treaty of San Ildefonso”, but to figure that out, read Chief Justice Marshall’s opinion in Foster vs. Neilson, 27 U.S. (2 Peters) 253, 301-03 (1829)), and ultimately in late 1810 the United States claimed West Florida and began to take control of it militarily, especially once Andrew Jackson took Pensacola. But the issues were hot enough to make West Florida one of the main issues at the famous Diplomatic Congress of Vienna in 1815, the most famous of all time, including the Austrian diplomat Metternich and the French Diplomat Prince Talleyrand, whom Napoleon described as “une merde dans

So next time you are going back and forth between Alabama and Florida, and you cross the Perdido River on your way to the Flora-Bama Lounge, or stand in your room in the Perdido Beach Resort and look out at the Perdido River, remember that the Perdido River was a famous international boundary, and remember Judge Toulmin. The dedication ceremony was conducted by the Bench and Bar of Baldwin County, and included Presiding State Circuit Judge James Reid and Circuit Judge Charles Partin, and officers of the Baldwin County Bar Association, including Vice President David Bagwell, who surveyed some of the history of Judge Toulmin. Several descendants of Judge Toulmin also attended, and afterward the Baldwin Bar hosted a reception with a cake bearing the profile of Judge Toulmin.

Officers and Trustees The Eleventh Circuit Historical Society, Inc. Officers Chief Judge Joel F. Dubina Honorary Chairman Ben H. Harris, Jr., President James L. North, Vice President – Alabama Leonard H. Gilbert, Vice President – Florida George L. Murphy, Jr., Vice President– Georgia Halsey G. Knapp, Jr., Secretary John M. Tatum, Treasurer

Trustees Alabama

Florida

Georgia

David A. Bagwell Julian D. Butler Walter R. Byars A. J. Coleman N. Lee Cooper Harry W. Gamble, Jr. Richard H. Gill Reginald T. Hamner Scott A. Powell

Timothy J. Armstrong Linda A. Conahan Joel D. Eaton Suzanne E. Gilbert John F. Harkness, Jr. John W. Kozyak Roberto Martinez James C. Rinaman, Jr. E. Lanny Russell

J. Ralph Beaird Robert M. Brinson A. Stephens Clay John J. Dalton Wallace E. Harrell William H. Larsen John T. Marshall Kirk M. McAlpin, Jr. Chilton D. Varner

19

Arkansas and Texas Railroad’s fast mail express near Genoa Station, about seven miles from Texarkana. They got about $3,000, but the train’s porter got off a telegram about the robbery and Rube’s gang was jumped by a posse in the cold rain, and in the confusion Rube lost his “Texas sombrero.” The railroad detective saw the hat had the label of “Utterbach & Davis, Dublin, Texas,” and one of the slickers had the private mark of a store in Dublin, too, but the boys got away, divided the money and wandered out through The Sulfur Bottoms and scattered, and the Burrow brothers went home to Lamar County. Using the clues, the detectives caught one of Rube’s men, Bill Brock, but the rest got away.

McDuffie, from page 2

was it was not properly guarded, and two, much of what it carried was packages of cold cash. Most of the cash was going to The Louisiana Lottery Company, which despite the involvement in its affairs of that Southern Saint – Gen. Pierre Gustave Toutant Beauregard, CSA, hero of the First Battle of Manassas or Bull Run – was so notoriously crooked that the Alabama Constitution in horror still bans legalization of a state lottery. Rube’s gang next robbed the Texas and Pacific Line at Gordon, Texas, on Jan. 23, 1887, getting $2,624 in cash, a good haul for the time.

Soon enough the lawmen found a snitch in Texarkana who ratted out the Burrow boys, and early on the cold morning of Jan. 15, 1888, the railroad detectives went to the Burrow home in Vernon. When Rube was home, he hid out in a cave, and his beloved little sister Ann Eliza – he pronounced her name like “analyzer”– brought him food. Unfortunately the detectives almost caught up with them in Vernon and attempted but failed a capture of the two boys, the boys getting away in a hail of about 50 shots.

By the time they robbed the Texas and Pacific at Benbrook, Texas, on June 4, 1887, Rube and his gang had a pretty workable plan: two of the robbers would mount the engine as it pulled out of the station, and make the engineer take the train to a trestle and stop the train on the trestle so none of the passengers could get out and try to thwart the robbery of the express car. The gang split their money and decided to go home to Rube’s ranch or farm in Erath County, Texas, where they took it easy for a while.

Just a week later on Jan. 22, Rube and brother Jim Burrow boarded the southbound L&N train at Brock’s Gap, Ala., some 12 miles south of Birmingham, buying tickets for In the summer of 1887, Texas Montgomery. Rube flashed a huge authorities arrested nine men and roll of bills, making conductor Judge John McDuffie. charged them with Rube’s robbery Callahan suspicious. Callahan told Photo courtesy of Chuck Diard. of the train at Benbrook in early the porter, Osborne Cleveland, to June. They put the men on trial, keep a watch over them, and before long Rube checked but Rube decided it just wasn’t fair, so four months after the bullets in his huge six-gun and said “I guess we are the Benbrook robbery and during the trial Rube and his fixed now.” The porter told all this to the conductor, who men again robbed the Benbrook train on Sept. 20. The got off the train at Calera in Shelby County, Ala., and engineer recognized the robbers, saying “Where do you cabled the Montgomery Police about 60 miles South want me to take the train this time?”, and Rube replied “Have a Special Officer Meet Train 7.” “the same place as last time; the St. Mary’s Creek trestle.” As the train pulled into Montgomery,12 the engineer When word got back to the trial in Fort Worth, there were ran almost wide open so the Burrow brothers could not mixed emotions, but there was no conviction. safely jump out, and on arrival at the depot the train was By December 1887, the Burrow gang was back in action in met by Montgomery policemen – Capt. John Martin and Texas, looking for some Winchester lever action repeaters Officer McGee. The conductor surreptitiously pointed out – early “assault rifles”– to add to their armaments. They Rube and Jim, and the policemen walk up to the outlaws. went from Texarkana to Tyler to Corsica, looking for The Burrow boys said that they were looking for “a good Winchesters – oddly and counter-intuitively mostly second-class hotel,” maybe a contradiction in terms. The unavailable in 1887 Texas – and finally found and bought policemen suggested “The Gerald House”– Chief Gerald two, and 20 bullets for each, and hid them under their was the Montgomery Police Chief – and they all started off MacIntosh rubberized cotton slickers, topped by their big walking. When they got to the police station, Capt. Martin hats they called “Texas sombreros” and looking for all the grabbed Rube and said “consider yourself under arrest!” world like what we today know as “the Marlborough man.” Rube yelled “Well, I guess you won’t!” They caught Jim, but Rube ran down the street, past Neil Bray, an employee On the night of Dec. 9, 1887, they hit the St. Louis,

20

of the local paper, The Montgomery Advertiser. The policemen yelled to Bray, “Catch him.” Bray tried bravely, but Rube shot him. Bray fell and yelled “he has got me!” (Bray was saved by the ministrations of a Montgomery doctor named Hill, who had studied with Joseph Lister in England, the father of antiseptic, which remarkable experience caused Dr. Hill to name his son “Lister Hill,” who later became a U.S. senator from Alabama).

is now just off I-55 in mid-to-north Mississippi. They killed a passenger, Chester Hughes, Rube’s first murder. Rube made it away, and by mail order, bought a fake wig and whiskers and a 16-shot Marlin lever-action rifle, the state of the art. He had it delivered at hometown Vernon, but Postmaster Moses Graves recognized Rube and wouldn’t hand over the items, and so Rube killed him in cold blood.

So the police had Jim, who lied about his name at first, saying he was Rube. Jim then started liking the notoriety of being the big outlaw in the local jail.13 They asked him where he got his Texas sombrero, and Jim said “I guessed for it,” helpfully explaining that when he went into the store in Texas and put on the hat; “the shopkeeper guessed I would pay for it, but I guessed I wouldn’t.” Jim stayed in jail and was finally extradited to Arkansas to be tried for the train robbery there.

On Sept. 25, 1889, at 3:10 a.m., Rube and his gang held up the Mobile & Ohio southbound mail train at Buckatunna, Miss., getting $2,700 in cash, but not seeing $70,000 in government cash bound for Florida. Rube and his men got away, crossed the state line into Alabama, and headed Northeast for Demopolis, Ala., in Marengo County, on the Tombigbee River, an old town settled as “the Vine and Olive Colony” by Napoleonic refugees. But on the night of Sept. 1, 1890, Rube made his eighth and last train robbery, in Flomaton, Ala., of the Louisville and Nashville eastbound passenger train, running from New Orleans to Montgomery. At the switch, Rube appeared out of the dark with what Engineer Robert Seizer described as “two horse pistols” and told him to run down to the iron bridge over Big Escambia Creek and stop on the bridge. Engineer Seizer later said his fireman, John Duval, made a break for it and ran. Rube got the money and got away. The railroad detectives followed with the local sheriff Ed McMillan (later killed by the only other train robber ever to rob a train single-handedly, “Railroad Bill” of folk-song fame, who also did it at Flomaton). Rube led them all on a wild goose chase into the swamps.

Rube, meanwhile ran down Perry Street and on out of Montgomery, finally going to ground on Jan. 23 at a sharecropper’s cabin in Tippecanoe, out the Western Railway14 line seven miles from Montgomery. Rube managed to get away in a hail of bullets, and headed toward Mt. Meigs, which is now on the Interstate between Montgomery and Atlanta. Rube managed to get away again.

It was during this period of wandering that Rube is said to have stopped at a farmhouse and asked a widow-woman there if he could pay for breakfast. While the widowwoman was cooking his breakfast she cried; Rube nicely inquired why, and learned that the bank was foreclosing Leonard Calvert Brock, main accomplice of on her farm that day. Rube asked Rube Burrow. Photo courtesy of The W. S. Hoole how much she owed, and she said Special Collections Library, The University of “$700.” Rube gave her the $700, but Alabama. told her “all I ask is that when you By Sunday, Oct. 5, 1890, the word pay the banker, you get a written receipt.” Rube left after was that Rube was headed to Marengo County, Ala., and breakfast, went up the road a piece, and tied his horse in the local farmers and their sharecroppers were on guard. the woods and took a nap. Before long the banker came A farmer and state legislator named Daniel John Meador, down the road to the widow-woman’s house, where she who oddly was chair of the Legislature’s appropriations paid him the $700 and got a written receipt just like Rube committee, spotted Rube near Beckley’s landing on the had said. Before long the banker came back down the Tombigbee River, near the Sumpter and Choctaw County road; Rube robbed him of everything he had – including lines. Judge McDuffie’s father, John McDuffie, and a young the $700. So the widow-woman kept her farm, Rube got Marengo County storekeeper named Jefferson Davis Carter his $700 back and the banker was the only loser, no doubt – whose nickname was naturally “Dixie”,16 of course, why do twirling his waxed mustache in wonderment. Robin Hood you ask? – were on Rube’s trail. Carter was a mild man, most redux! likely gotten into the chase because Rube had stopped in Rube lived in the swamp like an animal during the fall of his store in Myrtlewood, and Carter would recognize him. 1888, but in December 1888 Rube and his main sidekick On Oct. 7, 1890 a black man named Jesse Hildreth saw Leonard Calvert Brock15 held up the Illinois Central smoke rising from a cabin near his house, about 18 miles Passenger train (Casey Jones’ line) at Duckhill, Miss., which continued, next page

21

IHOP had not yet come to Linden by 1890, and there was nothing in Linden to feed him. Rube asked about the sack he had with him when he was captured, and McDuffie told him it was still over on the Courthouse steps. Rube told the men he had some candy and ginger snaps in there, and if they would just go get it, he would share it with them. McDuffie nodded at Frank Marshall, who went for the sack, and was back in five minutes.

McDuffie, from page 21 south of Demopolis and nine miles from Linden, the county seat of Marengo County. Hildreth went in and recognized Rube, but claimed to be looking for a lost horse. He tried to keep Rube under various pretenses, finally agreeing to guide Rube – on a horse with Jesse Hildreth walking – to nearby Blue Lick. Rain began to fall, and Hildreth convinced Rube to stop at the house of one of Hildreth’s local (black) friends, George Ford, at Myrtlewood. While Ford’s wife was cooking supper, Hildreth got word to a friend, Frank Marshall,17 to get word to McDuffie and Carter, who duly came. But since Ford’s house was in a clearing and there was no way the two white men – McDuffie and Carter – could get there without arousing suspicion, Carter and McDuffie convinced Hildreth and his friends to capture Rube. Hildreth re-entered the cabin as Rube was drying and oiling his Marlin and wrapping it in oilcloth to protect it from the rain. Hildreth said “Boss, let me help you with that,” and took the rifle and dropped it on the floor. While Rube reached down to pick it up, the immensely strong Hildreth grabbed him around the body and arms, with the similarly strong Frank Marshall helping. Rube fought wildly but the two powerful men pinned him down on the ground. Only then did the two white men, McDuffie and Carter, go inside, and the four men together tied Rube up. They took Rube’s rifle and two Colt revolvers and about $178 in cash. The captors took Rube to Linden, where the jail was, but the Sheriff was gone and they couldn’t put Rube in the cells, so they tied him up and locked his feet to a chain to a bullring in the floor at the jail. McDuffie hurried across the street to “the telephone office”– amazingly they had “a telephone office” in Linden in 1890 – and miraculously was able to get hold of George Agee, general superintendent of the Southern Express Co., who was in Demopolis, who asked “how many pistols did Rube have on him?” McDuffie answered “two; two Army .45s.” Agee said “are you sure? There must be some mistake; he was known to have had three pistols when he crossed the River, two .45s and a .38”. McDuffie answered “Rube said he sold the .38”, but Agee said “Rube would never sell a pistol.” Agee said “what was in that carpet sack that Rube carried?” and McDuffie answered “food; some bacon and cornbread.” Agee said to handcuff Rube, put a half dozen men on guard, and get him in a cell as soon as possible.

Rube slowly doled out the ginger snaps and candy, and slowly ate. Finally he pulled out his .38 from the sack, a gun he had taken from Southern Express Agent Archie Johnson at the Flomaton robbery. Rube told the men that if they moved they were dead. He made them fetch his two Army .45s. McDuffie said “Rube, you’ve got the drop on us; you can have your way.” Rube made Jesse Hildreth tie McDuffie and Frank together and lock the door, and come with him to find his rifle and his money, and they went out the door with Rube holding one .45 in his back, and the other .45 and the .38 in the carpetbag grub sack. They went to where Dixie Carter was, and got him up. Rube poked his giant .45 at Carter and demanded his rifle and his money back. Carter turned to the side and whipped out his own gun, a small .32 Smith & Wesson pistol, with classic S&W lines, which looked to people in 1890 like a lemon squeezer, and so naturally they called it “a lemon squeezer” (Google® it and you will see them online still). Carter gave his version of the gunfight in an interview with The Southern Expressman, the magazine of The Southern Express, for April of 1891 when he was in Atlanta for medical care. Carter said that Rube came over with Jesse Hildreth, who asked Carter to come out to speak with McDuffie. Carter went out, and Rube stepped from behind a tree and said “I am Rube Burrow, a free man, and I intend to kill . . . .” Carter said “before the sentence was finished I had my pistol out and we both fired five shots. Rube fell dead and my left arm was useless.” Other sources say that in the gun battle, Rube fired the first shot, and fired five shots, one hitting Carter in the arm, paralyzing him for life. Carter’s first three shots had all missed, but on his fourth he took careful aim and hit Rube, killing him with an artery shot. They put Rube’s body in a simple lumber coffin and put him on the train. On Oct. 9, 1890 in Birmingham, John H. Horgan took the photo shown here, of Rube in his coffin, leaned against a railroad car. The railroad put Rube’s coffin on a train for Vernon, Rube’s hometown, and when they got there, out of fear, they kept moving and just pushed the coffin out of the train car as they went through town. Rube was buried in Vernon and is still there; his tombstone is occasionally stolen and replaced, and in recent years the name on his tombstone is misspelled as “Burrows”, which is a common error.

They fed Rube some supper, and joked with him, with Rube joking about the reward they would get, among other things. Dixie Carter found a floor to sleep on at the General Store nearby, and Rube was left for the night chained to the bullring, with McDuffie, Frank Marshall and Jesse Hildreth.

The two strongmen? Jesse Hildreth did not outlast Rube by all that much; Hildreth was himself shot and killed on April 27, 1892 by an irate husband of a polyamory black family group of a husband and six women who lived in

About 4 a.m., Rube complained that he was hungry. McDuffie reminded Rube that Waffle House and the

22

a cabin on the bank of the Tombigbee River; the area flooded and one of the women took refuge with Hildreth, and the irate “husband” shot and killed Hildreth. Frank Marshall didn’t last much longer either; accounts differ as to whether he died in 1892 or 1897.

The story deserves to be remembered. It’s up to you to remember it. Endnotes: 1 David Bagwell, who turns 65 this year so is just older than the oldest Baby Boomer– and has been older than every U.S. President in the almost two decades since 1992– is a solo civil lawyer in Fairhope, Alabama on Mobile Bay, in a firm where he finally likes all of his partners. David specializes in screwed-up civil cases, which in big cities people who never go to Court call “complex litigation”. One unsolved riddle is whether David is the cause of– or the attempted remedy for – the screwed-up nature of his lawsuits. Like they radioed Nimitz in the Pacific, “the World wonders”. David may be reached by electrons directed to [email protected]. 2 It was from a steamboat collision in the Alabama River just upstream of McDuffie’s at Cade’s Bar on King’s Bend in the Alabama, just below Selma– King’s Bend being named for U.S. Vice President William Rufus King, of Alabama – that the U.S. Supreme Court in The Steamboat Magnolia, 61 U.S. (20 How.) 296 (1857) held that U.S. admiralty jurisdiction extended to all navigable rivers, not just to those affected by the ebb and flow of the tide as in England, which English rule was called “the infra corpus comitatus limit”. 3 John McDuffie, To Inquiring Friends if Any (Azalea City Printers, Mobile, AL, undated) (“McDuffie”). 4 Id. at 145. 5 See generally A. Champagne, Sam Rayburn: Achieving Party Leadership, 90 THE SOUTHWESTERN HISTORICAL QUARTERLY 373 (1987). 6 McDuffie at 273-78. 7 Id. at 287.

McDuffie was murdered in 1904 by the only tenant on his place. It was just after Judge McDuffie graduated from college. Dixie Carter? Dixie was the only person in these events who lived a normal life, other than his paralyzed arm. He married Lenora [“Nora”] McDuffie18 in May 1894 when he was 34, and they built a nice home19 in Myrtlewood, and had several children and he lived out his life as a storekeeper, dying in 1920 at age 60, and is buried in Myrtlewood. Dixie’s wife Nora lived until 1963, dying at age 90. In about 1955 or 1956, when I was 10 or 11 and my Granddaddy was in his seventies, he loved to tell me the story of the famous Alabama outlaw Rube Burrow, and how he tricked his captors over a few ginger snaps. It is a story worth remembering. It is also Chapter V, called “The Stranger,”20 in Judge McDuffie’s little biography.

continued, next page

Pinkerton’s Detective Agency “Wanted” poster for Rube Burrow. Train robber Rube Burrow shown in his casket.

Photos courtesy of The W.S. Hoole Special Collections Library, The University of Alabama.

23

The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-2300

FIRST CLASS U.S. POSTAGE PAID TALLAHASSEE, FL Permit No. 43

McDuffie, from page 23 8 Id. At 288. 9 Davis v. Schnell, 81 F.Supp. 872 (S.D.AL 1949) (three-judge court). Davis still makes news, being extensively discussed in Riley v. Kennedy, 553 U.S. 406 (2008). I personally heard a speech by Gov. George Wallace almost twenty years later in about 1967 at a symposium at Vanderbilt University in which he castigated the Davis ruling, comparing Alabama’s literacy test favorably with New York’s, then still applied, according to Gov. Wallace. 10 There must be something really odd about the place. Flomaton is in

The Historical News is published periodically by the Historical Society of the United States Courts in the Eleventh Circuit. To obtain a copy or information about the Society, please contact: Wanda W. Lamar, Executive Director The Eleventh Circuit Historical Society P.O. Box 1556, Atlanta, GA 30301 (404) 335-6395  •  [email protected] BOARD OF OFFICERS Chief Judge Joel F. Dubina - Honorary Chairman Ben H. Harris, Jr. - President James L. North - Vice President-Alabama Leonard H. Gilbert - Vice President-Florida George L. Murphy, Jr. - Vice President-Georgia Halsey G. Knapp, Jr. - Secretary John M. Tatum - Treasurer This newsletter produced courtesy of The Florida Bar.

24

the same Alabama county, Escambia County, where a single Texas Ranger captured the notorious outlaw John Wesley Hardin on a train with his gang, going to his home in nearby Pollard, and that single Texas Ranger, hounded by habeas corpus petitions snapping at his heels in Montgomery, took Hardin back to Texas to prison, where – you will be proud to remember– Hardin studied law and became a lawyer for a while upon his release, before going back to his bad old ways. Aren’t you proud? 11 One exception was Stanley Hoole, who was the special collections librarian of the University of Alabama, whose wonderful collection of Burrow material is in the Hoole Special Collections Library at the University of Alabama, without which the research for this piece could not have been done. Hoole wrote and had printed a marvelous book on Burrow, most helpful here, but sadly Hoole’s garage burned down, and with it burned nearly all the copies of Hoole’s book on Burrow. It was a real loss for Alabama history. 12 This was a decade before Montgomery’s magnificent Union Station was built. 13 The same symptom a century later overcame one of my two former death penalty habeas corpus clients, Wayne Eugene Ritter who, along with his rap partner John Louis Evans, seemed to revel in the attention of the press and the prosecutor after his capture. He paid with his life for that and other acts. 14 The small station of the Western Railway of Alabama still stands in downtown Montgomery. Some thirty years ago the line was absorbed into the L&N system, but God only knows who owns any U.S. railroad now. Likely the Canadian government. 15 Brock came of a family in what is now New Brockton, AL, near Dothan and Enterprise, named for his family. He was a doctor’s son, but killed a black man and had to leave town because of it. One of my mother’s cousins married into the Brock family, but if my family knew of Leonard Calvert Brock, they did not tell me. 16 Dixie’s first store was a log building, but in about 1893 he built a lumber store, which later served as the post office of Myrtlewood, and which stood until 1974. 17 Frank Marshall tended stock for D.J. Meador, the state legislator who first found Rube in Marengo County. 18 She was the daughter of William King McDuffie (naturally a Confederate veteran, since he named his son for Jefferson Davis) and Ada Rogers of “Camp Ground, Ala.” – can you beat it? – and likely some kin to John McDuffie. 19 The home was torn down in 1958. 20 Remember “L’Etranger” by Albert Camus, “The Stranger”? “J’ai tue un Arab” and all that? Was Judge McDuffie a Camus fan?