Interview With Magistrate Hamby

Arraj Inn of Courts Interview with
Denver Juvenile Court Magistrate E. Lee Hamby.

9/27/95

Magistrate E. Lee Hamby, was born in Indiana and brought here at age two. He grew up in the Arkansas Valley near where Judge Alfred A. Arraj served as Colorado District Court Judge. Magistrate Hamby talks in this interview about the period when Judge Arraj was a Federal District Court Judge for the District of Colorado, sitting in Denver.

Inn: Well, Magistrate Hamby, the reason that we’re here is to talk about Judge Arraj. Real briefly, what I intend to do is tape this and write it down and present the interview to you and you approve it or disapprove it and that’s entirely up to you.

Magistrate Hamby: That sounds fair enough.

Inn: You are Magistrate E. Lee Hamby of Denver Juvenile Court. You’ve been here for forty or fifty years? Isn’t that how long you’ve been here, Magistrate?

Magistrate Hamby: Oh, at least. I came here on March 15, 1978, so it’ll be seventeen years.

Inn: That’s a lot.

Magistrate Hamby: Eighteen years.

Inn: And before that you practiced at least in part in the Federal District Court and what you did mostly was, ah, you defended draft dodgers.

Magistrate Hamby: Yes.

Inn: A noble calling.

Magistrate Hamby: Well, it isn’t really fair to call them dodgers.

Inn: Sorry, Magistrate?

Magistrate Hamby: “Resisters” was the expression that we used.

Inn: And is that how you came to know Judge Arraj?

Magistrate Hamby: Yes.

Inn: When did you begin to practice law in the State of Colorado?

Magistrate Hamby: I was admitted in 1955.

Inn: What did you do first?

Magistrate Hamby: Then I had sort of a varied general practice. In 1955 it was almost standard just to open your own office. I guess most of the folks now are forming groups. I didn’t do anything in Federal Court until the draft came along, with the exception of a few draft cases that I took for Jehovah’s Witnesses. Like so many areas of practice, it is just something that you fall into quite by accident.

Inn: When did you first meet Judge Arraj?

Magistrate Hamby: In the 60’s probably, ’64 or ’65.

Inn: Had you been aware of him prior to the time that you began to practice in front of him?

Magistrate Hamby: I knew he was there. About the only work I did in Federal Court was bankruptcy.

Inn: Do you remember the first time you met him?

Magistrate Hamby: I think I first met him on a draft case, probably in the 60’s.

Inn: Could you tell us about it?

Magistrate Hamby: Well you know, I had this draft case and it was just a regular, ordinary run-of-the-mill draft resister. He had not reported for the draft, and he decided he was not going to. He was a Jehovah’s Witness but he had been sort of eased out of the church. Up until then, I represented Jehovah’s Witnesses on their draft cases because I had met their lawyer, the constitutional lawyer, Hayden C. Covington, quite by accident here in the court of appeals. I lost all his referrals; I think I had seventeen cases in a row that had all resulted in convictions and all had gone to prison. There was no probation.

The staff of the district court just would hang their heads in shame. They couldn’t even look at me each time I came over there because they just were so embarrassed, because these resisters were all nice kids. Then later on when the students began rather tentatively resisting the draft I picked up Roger, my first non-religiously-oriented draft case, and I tried his case to Judge Arraj. I had followed the pattern that was set up by Marvin Karpatkin in New York who represented the Central Committee for Conscientious Objection and he in turn had patterned his practice from J. B. Tietz in California, who represented mostly Jehovah’s Witnesses. They had a very straight-forward approach to the cases. They felt, and I felt and still do, that you should waive the jury, that you should advise your client that he should not testify, that you should carefully go through the administrative procedure that brought the order-to-report into existence and try to find a break in the administrative chain and just present that and if you won you won. If you didn’t, at least you were not in disgrace in the sense that you would not try to weasel out of something. My clients certainly gave the impression of being courageous and in this case the local board in Lakewood had failed to send out a notice after a classification action; the little postcard. It did seem like a rather flimsy defense because poor Roger just told them he wasn’t going to go, and didn’t go, and we were defending because they had failed to send him the postcard. I was really very pleased because Arraj just instantly got onto to it and not only did he follow the cases the I cited but his law clerk even found one that was more recent. The postcard serves a notice function, so Roger was acquitted and I really felt good.

Inn: You won jurisdictionally, you’re saying.

Magistrate Hamby: Yes, I really felt good about that.

Magistrate Hamby: And so I just followed that pattern from then on. I would say that we probably, Judge Arraj and I, conducted, if you can say that is the right expression, well over sixty, perhaps as many as seventy-five trials.

Inn: That’s amazing.

Magistrate Hamby: Yes. We had no pleas of guilty. There was no plea bargaining possible. None of my clients ever testified, we didn’t have a jury and I believe I won probably close to thirty of those.

Inn: I’ll be darned.

Magistrate Hamby: And I really admired Judge Arraj greatly because he had such a grasp of the law.

Inn: What did he look like?

Magistrate Hamby: Well, he was bald, I remember that, and he was sort of stocky.

Inn: About how old?

Magistrate Hamby: Oh, he was, at that time he was probably late 50’s at the very least, and wore glasses most of the time, and he was just a very straight forward person. You know you people that never met Judge Arraj, I don’t think you really know what an ideal Judge should be, but he was very business like, he did not like emotional tangents on his case, or anything like that. He had a…

Inn: Emotional what?

Magistrate Hamby: Tangents. He had an uncanny sense for just getting to the point and ruling on it in almost all of the cases we had, in fact we didn’t have a single written opinion. He just ruled from the bench at the conclusion of the case. He would take all of this complicated stuff and put it together and just make a ruling and he did that on other cases too. I was there when he sentenced the people involved in the Lakewood National Bank disaster. They were all sentenced to prison.

Inn: What disaster? Tell me the story?

Magistrate Hamby: The bank went under. They felt that failure was because of malfeasance on the part of the officials of the bank. And so they had a whole row of bank officials standing there.

Inn: White men in suits.

Magistrate Hamby: Yes. Yes, and all of them making impassioned pleas and motions for new trials and everything and he listened patiently for hours, and hours and he answered each one of the motions and he would do that without looking at his notes. I think he took notes, but he would just look people squarely in the eye and he just wouldn’t miss a thing and thinking it over, I just wish I had that talent. You know, he was very good at it. I think he did do a lot of preparation on the cases. I don’t see how he could have otherwise. He had such familiarity with them.

Inn: So he was stocky, bald, and he wore glasses.

Magistrate Hamby: Yes, I think he wore glasses, I’m sure he did. But not always.

Inn: And what about his mannerisms? Did he have particular mannerisms that you noticed?

Magistrate Hamby: Well, yes. He was a real friendly, affable sort, but he could be rather brusque. When we went to Vail earlier this month I was at a table with Judge Morris Sandstead from Boulder. We were talking ostensibly about the book, Learned Hand, we were assigned to read. I was the only one that had actually read it, except Morris. He had been Judge Arraj’s law clerk during the 60’s.

Inn: Oh my goodness.

Magistrate Hamby: And he remembered me slightly and so we chatted about Judge Arraj. Of course he idolized Judge Arraj, all of his law clerks did too, I think. But he said that he did have a tendency when he became impatient to be almost cruel in his criticism of lawyers, in the presence of their client and I never suffered that, but I know that sometimes, when he would think I was going astray, he made it quite clear that the thing to do was to get back on the right path. He would say something like, “I don’t believe that’s a particularly fruitful area of inquiry Mr. Hamby.” I never saw the side myself, but James Manspeaker, the clerk then, now Clerk of the U.S. District Court, said that he was aware that Arraj was a little bit impatient; he really liked to move things along. He said Arraj had a sign with letters about two inches or three inches tall across the front of the bench that said “Patience”.

Inn: Inside the bench, or outside?

Magistrate Hamby: Yes, inside, patience. And so he, but you know he’s really flawless, he’s just almost my ideal of a judge. If I get in trouble here……with my little dinky cases, I will even yet find myself asking, “What would Arraj have done?”

Inn: Tell me about other mannerisms, about the way that he moved or the way that he spoke. Did he have an accent? Did he use particular words? Was he verbose or was he concise? Did he use literary phrases, or alliteration, or did he tell jokes? None of those, hmm?

Magistrate Hamby: I don’t think so. I think that he was probably the most business-like, no-nonsense Judge that I’ve ever met. You know he was capable of laughter, to say the least but he just really kept right to the point. I mean he had an answer for everything. One of my clients that I was appointed to, an alleged criminal…. This man had the obsession that if he wasn’t tried within a certain amount of time that he would be released, and I kept trying to tell him that if he caused the delay it was not going to help him. One of the many ways in which he tried for a delay, was when the case was called and Judge Arraj said, “Mr. Whatever-his-name-was, the Marshall, where is Mr. So-and-so, the Defendant? And the Marshall said well he’s in the building but we are asking for instructions from the Court, we do not want to bring him to court. He has taken off all of his clothes and he is sitting nude in his cell.

Inn: No, really.

Magistrate Hamby: Yes, and he said we really don’t have the manpower to force him to dress and keep him dressed to bring him to Court. What do we do now? And not at all baffled, Judge Arraj said, ‘Mr. Williams, (the reporter) and Mr. Hamby, come with me.” So they went up and here sits poor so-and-so, nude in the cell, shouting obscenities to us and everything. They set up the court reporter and Judge Arraj advises him of his rights. You know nothing bothered him and it didn’t seem to make him angry or anything like that. He said, “Well that concludes our session”, and they bundled up the stenotype and marched back down to the Courtroom.

Inn: Did he seem to be well read?

Magistrate Hamby: Oh yes.

Inn: How did you notice that?

Magistrate Hamby: Well, I’m just trying to think of an example. He would occasionally drop in a literary allusion, but you know I can’t think of a darn one right now. But I really think he read every case that came off of the press in the Federal system. The law always changed very rapidly on the selective service cases and before every case I would go up and sift through the little slip opinions, the advance sheets from all the other divisions and read them to see if I could find something that would help and occasionally I did. But every time I would go down there he and his law clerk had it already. That was one of our tactics that we taught others that asked us for counsel, always try these things, waive the jury and it really is not a good idea to have your person testify as there is very little to be gained and you have everything to lose.

Inn: Sort of like mental health cases.

Magistrate Hamby: Yes, very similar. You attack the validity of the administrative proceeding and you do so openly and honestly and correctly and everything like that. But the other bit of advice is to finish before lunch. All of our cases took less than half of a day. Because if you go into the lunch hour, the U.S. Attorney would rush back to the telephone and he would call to D.C. to the National Headquarters of Selective Service and they would just give him all sorts of advice. So we kept our cases short and to the point and Arraj really liked that. I think that’s the reason that he really did seem to relate to all of us. We were really very quick. I remember one case, Mr. Spurgeon, Al Spurgeon, I guess he died, but he suggested one time that perhaps the Court would like to examine the exhibit and reconvene after lunch.

Inn: Is this the U.S. Attorney?

Magistrate Hamby: Yes, he was the U.S. Attorney. Judge Arraj said “It’s 11:20”, and Mr. Spurgeon said, “But we have a file here that has 200 and some items.” “Well, yes but Mr. Hamby only referred to seven of those and I had kind of put those out to one side”. Of course Spurgeon kept saying, “I really think we should recess”. But he went ahead and ruled on the case, and ruled as I thought that he should and I was very pleased. He just liked to get things done. One of the few times that we ever actually had a conversation other than just right there in Court…he did everything in Court, nothing in chambers…was that he said that he talked to some people in California and that they had felt that they were really accomplishing something when they got the average on their jury trials on selective service cases down to five days.

Inn: Per trial?

Magistrate Hamby: Per trial.

Inn: That’s incredible.

Magistrate Hamby: And we used to do two a day, one in the morning and one in the afternoon. So I knew what was coming because the person would already refuse to report for induction you see, and then they would simply release him and then I’d watch the indictment list and when his name appeared on the indictment list I would take him over and surrender him and post the bond and prepare him for trial. On Friday mornings they used to have the arraignment. At the arraignment they would say such things as “will there be a jury trial on this case?” “No sir.” “Do you think it will take less than 1/2 a day?” “I’m sure of it.”

Inn: What I was going to ask next is how he was on evidence and on technical matters. In other words, if you were to go to look at a case and say to the Judge, “There is a case here, so the US Attorney can’t bring in that evidence.” “There’s a notice problem or that doesn’t fit under CRE 803,” Would he pay attention to that sort of objection?

Magistrate Hamby: Yes, he would.

Inn: Did he understand it?

Magistrate Hamby: Yes, I think so. He was very good about the law of evidence because he had been trying cases for many, many years. He was a district judge in whatever the district is in Baca and Las Animas Counties. He knew the laws of evidence. He was a lot like Sherman Finesilver because he would say that he read several pages of the rules of evidence every night before he went to bed. I don’t think that Arraj every really expressed his rulings in terms of the rule, but he would always just very succinctly say, “Impermissible” and so forth. On trials to the court, the trials that I had, the rules of evidence didn’t have much application because all that we were dealing with was the exhibit.

Inn: And you did the same thing every time.

Magistrate Hamby: We did the same thing. Very predictable to everybody.

Inn: What about courtroom control?

Magistrate Hamby: Oh, iron-handed.

Inn: Did you ever see him hold anyone in contempt of court?

Magistrate Hamby: I never saw him hold anybody in contempt of court but I saw him have people ejected from the courtroom.

Inn: On what grounds? Do you remember a case?

Magistrate Hamby: For mouthing off too much.

Inn: Attorneys? Clients?

Magistrate Hamby: Clients. A pro se litigant one time, it was one of the few times that I ever saw Arraj very angry. The litigant just kept bringing up this nonsense. Arraj kept saying, “I have ruled Mr. Cooper, I have ruled.” And then finally he just leveled his finger at him and said, “I instruct you not to bring up this subject again.” Sure enough the litigant did bring it up and Arraj had the U.S. Marshall take him out in the corridor and stay with him. Arraj went ahead and listened to the evidence and then brought the litigant back and had Mr. Williams, the reporter, read it back to him. He let him talk and he was just very forceful. He really was not at all intimidated by lawyers.

Inn: What do you remember what causes you to say that?

Magistrate Hamby: Well, he just ran his courtroom and I remember Mr. Alioto, the Mayor of San Francisco?

Inn: Yes, yes.

Magistrate Hamby: His son, who seemed to be somewhat overweight, by the way, but he was really a high roller lawyer and he came out to Denver one time. I think it was a drug case or something. Judge Arraj was giving an obligatory advisement and Mr Alioto kept saying “We will waive the advisement and waive the reading of the indictment. We just want to have this matter set for trial.” Finally Arraj said, “I am going to finish my advisement. Sorry you find it burdensome, Mr. Alioto”. He had a real talent for putting people down. He was very prompt. I should be so prompt. I went over there once about three minutes late for a one o’clock hearing. It was awful. They were already in place sitting there and I walked in and felt about two feet tall and finally he said, “I’m glad you could join us. I thought maybe you had stopped and had an extra dessert.” You couldn’t hate him because you know he was trying to get a long. But he was very strict.

Inn: Now did he seem to lean one way or another in your cases?

Magistrate Hamby: Well, he was very unsympathetic to the draft cases. I used to think that he was perhaps almost noticeably so. However, that was a nationwide trend. When I first began these things, as I told you, I lost 17 cases in a row. Every one of them went to prison. And when I finally picked out a simple theft from the mail case and the probation report was for probation, everybody in the whole courtroom was overjoyed because at last Hamby was going to walk out with his client. The man lost his nerve and he said he was going to have a cigarette while he was waiting for the sentence and he disappeared and when he came back several days later Judge Doyle put him in prison for a year just because of that. But anyway, I think over half of those cases I would have won if I had the body of law to work with that was developed later on and that was the reason that we tried these things to the court and we weren’t doing it to help the overall effort, just to help our client. A lawyer only has one obligation, that’s to one’s client. He doesn’t have any obligation to go out and make a statement about the war or the state of the economy or anything else. He represents his client and he should stick to that. But nonetheless, the cases that were decided, you would win them by losing. If you know what I mean, you would build up your body of law. The Judges would say, if indeed, the notice was not given, this would be a fatal defect, but I think the notice was complete in this case and find him guilty and off to the slam.

Inn: Sort of like Marshall created the power of the Supreme Court.

Magistrate Hamby: Yes. So the next guy would come back and we would say that notice was not given and we were entitled to an acquittal. And the Judges would honor their commitment and they would do it. The Judges had different approaches. There were three judges then: Judge Arraj, Judge Chilson and Judge Doyle. Judge Doyle was considered to be quite liberal. Judge Chilson was considered to be very conservative. And Judge Arraj, he was just a realist. He would just call them the way they should be.

Inn: How did he treat courtroom staff? How did he seem to get along with them?

Magistrate Hamby: I think they all liked him. Maybe you should talk to (Judge) Morris Sandstead about that, because he was with him a long time. He really admired him greatly. All of his law clerks probably felt he was really an exceptionally good judge. He was a born lawyer is what I think. He just thought the way we were taught to think in law school. Which I never did completely master.

Inn: What did you hear about him from other people who talked about him?

Magistrate Hamby: Well, a lot of the lawyers, I think he had a little bit intimidated. I think most of the people that really worked with him regularly really respected him a lot. But he wasn’t popular in the sense that Doyle was popular. Doyle was very liberal and he adopted more of an emotional tone to his cases that Judge Arraj didn’t. But I think we got more acquittals from Arraj than anybody else in this area but that’s because he tried most of the cases. He was the presiding judge and he did most of the draft cases himself. And at the arraignment, he would say, “Will this take less than a half day?”, “Oh I think so”. “Well how about Tuesday afternoon?” Of course the U.S. Attorney would just go into shock because I’d been studying this file for weeks and he had just seen it for the first time after the indictment came down. “Well, I have to get a witness up here”, “Well actually the Western slope is only a few hours away”. But he liked to get things done. We would try one case in the morning and one in the afternoon. They were thoroughly done.

Inn: Do any of your cases stick out in your mind? Is there a particular case that was unusual or that he made any unusual comments about?

Magistrate Hamby: Oh, well, all of them. I had one particularly, the client was a real, you know, a real – he wrote letters to the draft board, he would burn his draft card and send it back in a clear plastic envelope. He wrote letters to them

Inn: He was provocative.

Magistrate Hamby: He wrote to them and announced that he had resigned from the system and that he found their mail offensive and he asked that they cut it out. Then he moved into a little cabin about a quarter of a mile from his grandmother’s house on her land. They were being so careful to make sure he got the notice. And you know this was a small community and a small draft board so they carefully write him this order to report for induction and then they sent it to him certified mail return receipt, deliver to addressee only. And so of course the notice came back unclaimed. It was really a concrete absolute article of truth in the Federal court that if you were punishing somebody for disobeying the order you must prove that he received it. Of course they couldn’t prove that he received it because it was still there in the pile sealed up and marked “refused”. Arraj acquitted him and when he did so, he just threw up his hands in despair and as part of his findings he said, “How could the Federal government with all of the billions and billions of dollars they collect and hundreds and thousands of law enforcement officers, lawyers and everything else; how could they allow themselves to be outwitted by a dropout?” My client was just in terror because he knew he was really going to get hammered if he lost the case. Arraj went through the findings and he said, “Well, that’s it, we’re in recess”. My poor client said, “When will the trial resume?” I said, “You were acquitted, the trial is over”. He wrote a nice poem, I still have it at home, in Robert Service style, about the trial. He referred to Arraj as old lion tooth and he referred to me as Elmer Lee Hamby and I arose pale and shaken and stated my case. Lion Tooth roared in pain, “Acquitted, now get him from my sight”. I’m going to find that and bring it to you. It was beautiful.

Inn: So what else did you hear about him? Do you remember any significant stories about him?

Magistrate Hamby: Just the guys that talked to me about other draft cases. They’d come and ask for material. I had a wealth of material. I think I had 750 lbs of draft material that I got from the central committee and other sources. Attorneys used to come borrow that and then they would come back and tell me how the case came out. They were all just delighted, especially if they got an acquittal.

Inn: Did you tell me a story about the way that you think Arraj became a Federal District Court Judge?

Magistrate Hamby: Well, all I know is that when I was a mere youth in the Arkansas Valley, I worked for the Arkansas Valley Propane Gas and Water Company and so I knew Jimmy Melton’s father slightly. Jimmy Melton was twelve years old and he shot and killed his sister, who was fourteen. It was a very traumatic event. Judge Arraj was the District Judge who tried the case. Jimmy was tried as an adult even though he was only twelve. The case was prosecuted by Gordon Allott, later a U.S. Senator. I forgot now who defended the case. He was found guilty and he was sentenced to life imprisonment, and then later on it turned into a separate tragedy that ah…the Canon City warden took him into his own house and later arranged for him to go to Boys’ Town in Nebraska. He ran away from Boys’ Town and stole a car. He was sent back to Canon City and was paroled later on and was picked up for armed robbery out in California. I think he’s even yet doing life without parole out in California. And you would think having had your most prominent case to convict a twelve year old of murder would be enough. Everybody really admired Arraj. He always had this kind of quiet manner. I think he was of Middle Eastern origin or something – Syrian, perhaps.

Inn: I think you said that.

Magistrate Hamby: Yeah, there were quite an aggregation of them around Springfield, which is his home town. He had such a genial manner, I think everybody just really liked him. Of course he had to be elected as Judge in those days. But he was appointed as a district judge here by Eisenhower and I think it was in 1957.

Inn: Was because of his relationship with Gordon Allott?

Magistrate Hamby: Well I think that he and Gordon were probably close friends and I think he was appointed when Gordon was senator, I’m not sure.

Inn: Okay. Well, then I’ll end this. It’s 9-27-95 and this is the end of the interview with Magistrate Hamby, who was telling us about Judge Arraj. What was his whole name by the way?

Magistrate Hamby: His name?

Inn: Uh huh.

Magistrate Hamby: Alfred.

Inn: Alfred.

Magistrate Hamby: Alfred A. Arraj. A.A.A. I used to see those little minute orders.

This interview was conducted on behalf of the Inn by Philip Robert James, Inn Historian, 1996.

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