The U.S. attorney's office in Los Angeles has challenged a federal judge's decision to expunge a criminal conviction of an Army reservist who said last August that he needed a clean record so he could accompany his unit to the Persian Gulf.
In rendering his decision, U.S. District Judge A. Andrew Hauk also raised anew questions about his unpredictable judicial demeanor.
From the bench of his courtroom in downtown Los Angeles on Aug 24, the 78-year-old jurist delivered a rambling dissertation on military strategy, the virtues of nuclear weapons and the vices of Saddam Hussein.
He recalled, for example, how he once urged President Lyndon B. Johnson to "drop an atom bomb on Vietnam, North Vietnam that is. . . . I think the world would go for it because it shows decisiveness and courage." The judge also said he would have volunteered to serve in the Mideast if he were younger.
During a heated hearing, Hauk said he had the inherent power to expunge and seal the record of James Patrick Smith. Moreover, he urged Smith, 45, who had been disbarred as a result of his conviction, to try to regain his license to practice law.
"That, I would think, would be uppermost in his mind unless he's so gung-ho he wants to go to chop off the head of our great friend Saddam Hussein . . . who's a liar and a bum and in my book is going to be destroyed by surgical strikes," the judge said.
"I think (President) Bush knows what he's doing, he's tough and he's got a lot of spunk," said Hauk. "And he reminds me of Johnson. . . . I told him, 'You did a great job in the Dominican Republic; dropped 20,000 paratroops, took over the place and had free elections before the Russians could steam out of the Baltic.' "
A transcript of Hauk's remarks was recently filed in the U.S. 9th Circuit Court of Appeals in Pasadena by the U.S. attorney's office as part of its appeal of the judge's decision.
Smith, through his attorney, declined to be interviewed.
His attorney, Arthur Margolis, said that Smith had re-entered the reserves and his unit had been activated, but had not gone to the Persian Gulf.
To regular observers of the federal court system here, Hauk's remarks were no surprise. Appointed as a U.S. District Court judge by Johnson in 1966, Hauk has long been a controversial jurist who is known for eccentricity in the courtroom.
In 1979, during the trial of an antitrust case against the Organization of Petroleum Exporting Countries, he frequently referred to the defendants as "the Opeckers."
The following year, Hauk aroused the ire of lawyers, civil rights groups and other judges when, in separate cases, he deplored the immigration of "faggots from Cuba" into the United States and made light of a sex discrimination suit by saying "women have a monthly problem which upsets them emotionally, and we all know that."
In 1989, the California Women Lawyers blasted Hauk for "repeated public display of biased attitudes" after he declared in a sentencing hearing that women are "soft touches . . . particularly when sex is involved."
The judge said he was giving a lenient, two-year bank robbery sentence to Danielle Mast, the so-called "Miss America Bandit," because she had fallen under the "Svengali" spell of her boyfriend. Earlier this month, the 9th Circuit Court of Appeals overturned the sentence and ordered a new sentencing hearing.
Hauk declined to be interviewed about the Smith case.
Legal experts say the case raises a significant legal issue--the power of a federal judge to expunge a criminal record, a power which is traditionally more limited in the federal court system than in the state system, according to numerous legal experts.
Over the strenuous objections of Assistant U.S. Atty. Stephen A. Mansfield, Hauk expunged Smith's four 1982 felony convictions on charges of conspiracy and falsifying credit union loan documents.
In April, 1983, Hauk had sentenced Smith to five years' probation on each count, to run concurrently.
The conviction came shortly after Smith had passed the California Bar examination. He was immediately placed on interim suspension by the State Bar and ultimately disbarred, and has been unable to practice law since June, 1983, according to State Bar spokeswoman Susan Scott.
Last summer, shortly after Iraqi forces invaded Kuwait, Smith wrote to Hauk and asked him to expunge his conviction, stating that he wanted to rejoin a San Bernardino-based Army Reserve unit he had been a member of for 12 years. Smith said he was having difficulty securing readmission to the unit because of Army rules barring felons from re-enlisting.
"It is my primary desire to continue in the service of my country, especially in view of the present times," Smith wrote. "An 'expungement' by the court would allow my immediate re-enlistment in the U.S. Army Active Reserves."
However, federal prosecutor Mansfield told the judge that Smith could be activated for duty without an expungement.