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Judging Tadic

Former U.S. District Judge in Houston Answers State Department's Call

William Horne, The American Lawyer:
When Gabrielle Kirk McDonald was approached by a U.S. State Department official in the summer of 1993 about becoming one of 11 justices on the International Criminal Tribunal for the Former Yugoslavia, she was intrigued but hesitant.

"What did I know about war crimes and international humanitarian law?" she recalls thinking. "And I already had plans . . . to teach for the next ten years."

McDonald, who was a federal judge in Houston from 1979 to 1988, was about to begin teaching full-time at Texas Southern University's Thurgood Marshall School of Law in Houston. In the end, though, she concluded that her experience as a judge in criminal cases and as a teacher was relevant to the tribunal's work.

"It seemed to me that you could develop and create law and do some good too," she explains in her large, sun-filled office at the tribunal in The Hague. "That's exactly what I've done all my life as both a lawyer and a teacher."

Tall, elegant, with an easy smile and sharp wit, McDonald, 53, is the sole American and one of two women on the court. She will soon be the focus of worldwide attention as the presiding judge in the Dusko Tadic case, the first war crimes trial since Nuremberg. McDonald, however, is not unused to the spotlight.

Born in St. Paul and raised first in Manhattan, then in Teaneck, New Jersey, she attended Boston University and Hunter College, but never earned an undergraduate degree. McDonald nonetheless enrolled at Howard University School of Law, graduated first in her class in 1966, and accepted a coveted slot as a staff attorney with the NAACP Legal Defense and Educational Fund Inc. in New York. "I wanted to change the world," she recalls.

She is proud of the three-year stint that took her into the deep South --Alabama, Mississippi, Georgia -- to work on some of the first plaintiffs employment discrimination cases that were based upon Title VII of the Civil Rights Act of 1964. In 1967, for example, she was the lead NAACP staff attorney on the first significant plaintiffs Title VII win, a claim against Philip Morris Companies Inc. for its discriminatory seniority system.

The defense fund work gave McDonald, who is African-American, her first taste of southern prejudice. "It was frightening," she says of the hostility she encountered from some white southerners. "I remember meeting with civil rights workers in a church in Laurel, Mississippi. And when we finished I was trying to decide where I'd be safest [if we were attacked]. As the first one out of the church, or in the middle, or maybe the end."

McDonald was never attacked, but the experience convinced her to carry on
with civil rights work when she moved to Texas in 1969 and joined her then-husband Mark McDonald's solo practice. "When I came to Houston, no one was filing civil rights cases," she says. "Something had to be done."

Over the next ten years McDonald and her husband built a reputation for taking on plaintiffs discrimination cases -- many of them Title VII claims-- against big companies with significant operations in Texas, including Union Carbide Corporation, Monsanto Company, and Diamond Shamrock, Inc.
McDonald asserts that most of the big-firm lawyers representing these companies had been used to dealing only with unfair labor claims filed with the National Labor Relations Board. "I used to tease them, 'Thanks to me you've got a whole new area of practice!' " she cracks.

Her biggest win came in 1976, when she and Mark McDonald negotiated a settlement with the Lone Star Steel Company on behalf of 400 black workers for $1.2 million in back wages. Chris Dixie, a management-side defense lawyer in Houston who often battled McDonald, told The Houston Post in 1978 that in her field, "she must be the best in the South, if not better."

McDonald's reputation brought her to the attention of another Texan, Senator Lloyd Bentsen, who put her name up for a federal judgeship in 1978. In 1979 President Jimmy Carter appointed McDonald, then 37, as a federal district judge in Houston, only the third African-American woman to be appointed to the federal bench.

As a judge McDonald handled a full civil and criminal docket. Her race became an issue in several of the more high-profile cases she handled. In 1981 she was asked to recuse herself in a dispute between American and Vietnamese fishermen over shrimp in the Gulf of Mexico. "The American [fishermen] had called in the Ku Klux Klan to help solve the problem and the Klan did that by -- allegedly -- burning several shrimp boats," she recounts. After the Southern Poverty Law Center, based in Montgomery, Alabama, filed an antitrust suit on behalf of the Vietnamese shrimpers against the American shrimpers and the KKK, the Klan's Grand Dragon, Louis Beam, claimed in open court that they could not get a fair trial because McDonald was a "Negress."

She refused to step down, and things got nasty. McDonald says she received hate mail, including four one-way tickets to Africa. (She has two children.) Klan members attended the hearings. A metal detector was installed in the courthouse for the first time.

In the end she stood firm, enjoining the Klan from intimidating the Vietnamese fishermen with bellicose displays, boat-burning, or threats.
Morris Dees, Jr., head of the poverty law center, was impressed with McDonald's ability to focus on the issues, even in the face of Beam's verbal assault. "She bent over backwards to be fair to the Klan," he says, pointing out that her injunction was crafted not to infringe upon the Klan's right to assemble.

In 1984 McDonald presided over a case involving attorneys' fees in a voting rights class action that had been filed against the city of Houston on behalf of all black and Hispanic voters. The city attorney, citing McDonald's race, claimed she was part of the class and asked her to recuse herself. She refused, writing in her decision -- which was upheld by the Fifth Circuit -- that, "if my race is enough to disqualify me hearing this case, then I must disqualify myself as well from a substantial portion of cases on my docket," an action that "would cripple my efforts to fulfill my oath as a federal judge."

According to a fellow judge and five Texas lawyers familiar with her work, McDonald was a competent, fair jurist. Still, her civil rights decisions notwithstanding, she is criticized by one prominent civil rights lawyer.

"I was disappointed with her as a judge," says James Harrington, legal director of the Texas Civil Rights Project. "She seemed pretty cautious and never staked out a place for herself . . . never developed a jurisprudence in civil rights, or in anything else, for that matter."

McDonald disputes that assertion, citing half a dozen cases where she ruled in favor of the ACLU or took a civil libertarian view in her ruling. And the former U.S. attorney in Houston, Daniel Hedges, who was appointed by President Ronald Reagan and is now name partner of Houston's Porter & Hedges, praises McDonald for not permitting her civil rights background to cloud her judgment as a federal judge. "She was always evenhanded," recalls Hedges, whose prosecutors had several cases before McDonald while he was in office. "And as horrible as war crimes are, those defendants are entitled to a fair and impartial trier of fact. She is that."

The only other low mark came from a Houston litigator, who, echoing comments made by Houston practitioners in the 1988 Almanac of the Federal Judiciary, asserts that while McDonald was "very bright" and had "exceptional analytical skills," she was "glacially slow; motions would sit there for a year, a year and a half" without a decision.

Chief Judge Norman Black of the Southern District of Texas dismisses that criticism. "They said that about all of us," says Black, another Carter appointee who was sworn in with McDonald in 1979. "The fact is, we all had an enormous, crushing caseload at the time."

By 1988 McDonald had tired of the judgeship and quit. Among the reasons were her 1,000-case-a-year-docket and the $90,000 she was earning annually as a federal judge. (McDonald is a divorced parent whose children were then teenagers headed to college. By contrast, Houston federal judges now handle an average load of 420 civil cases and the cases of some 70 criminal defendants and earn $134,000 annually.)

McDonald opened the Austin office of San Antonio's Matthews and Branscomb, where for the next two years she handled management- side employment discrimination defense work. But she left two years later. She didn't enjoy the work, she says, or the administrative tasks entailed in running a four-lawyer office.

In 1991 she joined a small Austin firm now called Walker, Bright and Whittenton as of counsel and began teaching at St. Mary's University School of Law in San Antonio. McDonald has been teaching off and on since 1970, when she taught an administrative law course at Texas Southern University law school. The current dean of TSU's Thurgood Marshall law school, James Douglas, recalls taking that course as a student. "She has a real knack for teaching," he says.

In early 1993 Dean Douglas offered McDonald a one-year teaching post, to commence with the fall 1993 semester. She recalls that she was packing boxes in her Austin home for her move to Houston in the summer of 1993 when she received a call from state department legal adviser Conrad Harper, an old friend from their days together at the NAACP Legal Defense and Educational Fund.

Would she be interested in a position on the war crimes tribunal? "She seemed amazed to get such a telephone call," recalls Harper.

"I said yes in my mind but I told him no, I had plans," McDonald says. Harper persisted, assuaging her concerns about her lack of international law experience by pointing out that it was a criminal tribunal and that she had nine years' experience trying criminal cases on the federal bench. McDonald said she'd think about it. Harper says he sent her some information about the job, and within a few days McDonald agreed to be the U.S. candidate.

When 22 candidates for the 11 positions on the tribunal were submitted to a committee of the U.N. general assembly that September, McDonald received the highest number of votes. Harper attributes her popularity to the effective lobbying by the State Department and the U.S. delegation, as well as her broad experience as a civil rights lawyer, judge, and academic.

For the next two months she worked with State Department lawyers and professors at Thurgood Marshall law school -- where she continued to teach full-time through the fall 1994 semester -- to draft a proposed set of rules of procedure and evidence for the tribunal. (Compensation is apparently no longer an issue for McDonald: In 1994, in addition to her $145,000 tax-free tribunal salary, she earned approximately $100,000 teaching at Thurgood Marshall, and an estimated $100,000 handling labor, commercial, and personal injury mediations for Judicial Arbitration and Mediation Services/Endispute.)

McDonald and the other judges were sworn in in The Hague in November 1993 and set to work creating a procedural code. McDonald recalls that in her usual straightforward fashion she walked into the first meeting and slapped down the rules she had drafted in the States: "I was like, 'You want the rules, here they are.' " she says with a laugh. "I guess I was playing the typical American role -- we know it all, we control it all."

The other judges, of course, were not about to adopt the U.S. version wholesale. Indeed, several countries had submitted proposals for various rules. "I was apologizing for being so presumptuous," says McDonald ruefully, who notes that the current rules, arrived at after four months of work, are a "wonderful amalgam" of common and civil law concepts.

After the first draft of the code was completed in February 1994, though, McDonald says, things got slow for nearly a year. The tribunal prosecutors did file a series of indictments and deferral proceedings, but for the judges the work was sporadic. McDonald flew to The Hague only when she needed to. "It was boring," she recalls.

The boredom evaporated when the Tadic case picked up in April. Since the presiding judge in the other trial chamber had signed the indictment (and thus under the tribunal's rules had reviewed the bulk of the prosecutors' evidence supporting the indictment), the trial of the case automatically reverted to McDonald's three- judge chamber, which she presides over. "I got the black bean," she says.

Since then she has taken a leave of absence from Thurgood Marshall. She continues to handle JAMS mediations when she is in Houston but at press time had started hunting for an apartment in The Hague. (She has been staying in hotels.) Through the late spring and summer she has heard a slew of defense and prosecution motions, many involving brand-new issues of international human rights law. At a July 25 hearing on a defense motion challenging the court's jurisdiction, she seemed articulate and well versed in the issues --clearly at home in the courtroom. In her first major ruling, on August 10, she struck down that defense motion. "You fear being the first [to rule on these new issues] and making a fool of yourself," she says. "But I like the action -- this is why I wanted to be in a trial chamber and not in the appeals chamber."

McDonald says that her experience trying criminal federal cases and working as a lawyer to carve out civil rights laws has served her well so far. But she is still getting up to speed on international humanitarian law: "I've been reading night and day. I have big circles under my eyes."

Still, with every day at the tribunal, McDonald's conviction that she is doing the right thing has only grown stronger: "How can you tell the little kid stealing a bike on the street that's wrong unless we tell these people who commit unspeakable atrocities that they are wrong?"