Interview with Phillip Shepherd, March 29, 2018

KASARABADA: We are here today with Phillip Shepherd, chief circuit judge on the Franklin Circuit Court. My name is Anu Kasarabada, and I am the archivist and oral historian for the John G. Heyburn Initiative for Excellence in the Federal Judiciary at the University of Kentucky Libraries. Judge Shepherd, thank you for speaking with me today.

SHEPHERD: I'm happy to be a part of this.

KASARABADA: I'd like to spend this oral history learning about your clerkship with Judge Edward Johnstone, district judge for the Western District of Kentucky. But I'd like to start by tracing your interest in the law. So in your 2014 oral history about the Prichard Committee, you describe growing up in Frankfort and how you were often around lawyers who had interesting stories. Do you remember any of those stories?

SHEPHERD: Well, you know, that's very true. Frankfort is kind of a company town, you know, and so state government is the company. And as a result, it's always 00:01:00been kind of a hub of legal activity. So my dad was a Methodist minister and there were many lawyers who were active in his church and many people who were active, you know, elected and appointed officials in state government as well. So that was kind of the, that, that was kind of the background in which I, you know, first gained consciousness of the, of the larger world and was very much a part of my growing-up experience. So, you know, my dad's church included a lot of, you know, at the time, young lawyers, many of them have passed on now, some are still active. But people like Morris Burton, who later became our Commonwealth attorney, and Bill Johnson, who still practices here. Ray Corns, 00:02:00who was later the Commonwealth attorney and became a Franklin Circuit judge later in his career, were, were all active members of my dad's church and taught Sunday school classes and, you know, things of that nature--

KASARABADA: --and they were beginning of their careers at the time--

SHEPHERD: Yeah, when I was a kid. Yeah. When they were young, young lawyers getting started and we moved to Frankfort when I, the year I started the first grade. So that was when Bert Combs was the governor and he was followed by Ned Breathitt who was a member of my dad's church. And in that time period, a lot of, again elected and appointed officials in state government attended church there, so politics and government was always a hot topic of discussion--

KASARABADA: --um-hm--

SHEPHERD: --at the, at the dinner table and at home and at church, because that's really what people, where they were engaged. So, so there were, you know, 00:03:00elected officials like Wendell Butler, who was the commissioner of agriculture and then superintendent of public instruction, was a very active member of my dad's church. And Margaret Willis, who was the state librarian, was a member of my dad's church. Walter Gaddis, who was the commissioner of personnel, who really, you know, who built, established and built the merit system for state government, who was a great public servant, was a, was a member of my dad's church. Harry Sparks, who was an educator who later became president of Murray State University. He was the superintendent of public instruction.

KASARABADA: So really many of the people who ended up affecting public policy--

SHEPHERD: --yeah--

KASARABADA: --in the decades to come.

SHEPHERD: Yeah. Very, very much so. It was a--

KASARABADA: --and not just lawyers, from people--

SHEPHERD: --right--

KASARABADA: --all walks of professional policy life.

SHEPHERD: That, that's, that's very true. So, you know, so that was just a very intense focus of interest in the community and in our family and in our church. So that was part of the, you know, part, part of the environment in which I, you know, in which I grew up. So, and of course, my dad and mom both were just enormous friends and admirers of Governor Breathitt, who was a very active member of my dad's church and who had kids who were about the same age as my siblings and me. And so they, they were very close to Governor Breathitt, and as 00:05:00it turned out, you know, in later years, after I went, I went to work for Judge Johnstone. I've learned, and I think knew somewhat, that Governor Breathitt and Judge Johnstone were close friends from the days when they were both young veterans returning from World War Two who went to law school at UK--

KASARABADA: --um-hm--

SHEPHERD: --at roughly the same time. And then, Governor Breathitt went back to Hopkinsville and Judge Johnstone went to Princeton, which is just in the next county over, and they were friends and political allies as young lawyers in western Kentucky. So--

KASARABADA: --and they were both involved in Democratic politics--

SHEPHERD: --both, both very much involved in Democratic politics, along with, you know, the great political kingpin of western Kentucky at that time was a very politically active farmer who farmed on a very large scale named Smith 00:06:00Broadbent, who was very active in, you know, things statewide in farming and agricultural organizations and the state fair board. And so Smith Broadbent was kind of a mentor to both I think Ned Breathitt and to Judge Johnstone--

KASARABADA: --um-hm--

SHEPHERD: --so, and he was also a very active Methodist. So there were a lot of connections as a, you know, that, you know, again, as a young kid growing up, I wasn't so much aware of, but I would learn later, learn of and appreciate later in life. So.

KASARABADA: So there was a network of people--

SHEPHERD: --yeah.

KASARABADA: --that had come up together.

SHEPHERD: Absolutely.

KASARABADA: But your interest in the policies and the, and the, the company business sort to speak, you know, went beyond the stories you were hearing around the dining table. I read that you also went to town and sometimes watched trials in court.

SHEPHERD: Oh, sure. Yes. As a, as a--yeah that was, was probably when I was a little bit older.

KASARABADA: Right.

SHEPHERD: I know in high school that would be, you know, kind of a great entertainment. One reason was I was just interested in the law and there was, you know, there's always, and there still is, you know, great drama in the courtroom when there's a, you know, a murder trial or, you know, any other kind of trial. So it was something I was interested in as a kid and as a, you know, when I got a little older and, you know, high school, college, I would--whenever there was a big trial that had a lot of public interest, I would frequently come down and watch.

KASARABADA: Do you remember any trials that really captured your imagination?

SHEPHERD: Well, let's see, you know, I would say probably the one that was the most dramatic was a murder trial of a, of a local businessman who ran a little 00:08:00pizzeria down off Holmes Street. And his name was Jack Pagato. And there was a fire at his restaurant in which someone died. And I'm not really--it may have been his wife. I'm a little rusty on the details, but there was a very notorious event where his restaurant burned to the ground, and someone died, and he was charged with murder. And he was defended by Bill Johnson, who's still practicing here and was my Sunday school teacher when, when I was a kid. And so that I do remember, you know, watching that case. And it was a case that I think was tried around the time that the former Commonwealth attorney, Bill Brooks, was kind of 00:09:00at the end of his tenure and was being challenged by Ray Corns, who ran for Commonwealth attorney and defeated Bill Brooks in the early seventies. And, and I think the trial resulted in an acquittal. It was a very dramatic trial presided over by Judge Henry Meigs, who was also kind of a fixture in this community as someone who was highly respected and thought of, who was the Franklin--he was the first Franklin Circuit judge, that the Franklin County was separated from three other counties that formerly were in the same judicial district, Woodford, Scott and Bourbon. And that was done during the Combs administration. And Judge Meigs was appointed as the first Franklin Circuit 00:10:00Court judge and then won election and reelection several times on his own. But he was a really terrific judge who really looked like the judge from central casting. You know, he was a very handsome man who looked kind of like the actor John Forsythe and--

KASARABADA: --high compliment--

SHEPHERD: --right. And was married to the, married to the daughter of the last Republican governor, Sally Willis. And he, he was appointed by Governor Combs, but he was a Republican, but was somebody who had a great deal of respect, you know, throughout the community and presided over a courtroom in a very no-nonsense fashion and was a very good trial judge. So.

KASARABADA: So let's talk about your law school experience. You went to 00:11:00University of Kentucky Law School, and you were there from 1977 to 1980.

SHEPHERD: Correct, yeah.

KASARABADA: Are there professors that stood out to you?

SHEPHERD: Well, sure. You know, there were a terrific group of faculty members when I was there who had a very profound impact on my intellectual development and my development as a lawyer. I would say at the top of the list would be Bob Lawson, who-- longtime faculty member who really only recently retired. But Bob Lawson taught evidence. And when I was there--he probably taught every course in the curriculum--but when I was there, he taught evidence and criminal procedure in criminal law. And, you know, I took Lawson for everything I could because he was just such a great classroom teacher, master of the Socratic method, and was, 00:12:00you know, really terrific at being able to stimulate students to, you know, to gain an understanding of some very abstract concepts in the law that and, and to learn how to apply those in a practical manner.

KASARABADA: Um-hm.

SHEPHERD: And Lawson was just a fantastic teacher and a mentor. And I will say also, the other thing I will always be greatly indebted to Bob Lawson for was that he was really responsible for my clerkship with Judge Johnstone, because he was the, he was the professor at the law school who Johnstone would look to for recommendations for clerks.

KASARABADA: Hm.

SHEPHERD: So, you know, I'll always remember my last year in law school around 00:13:00the middle of the year, one night I was kind of roaming the halls of the law school and Lawson, who worked late hours and early hours, stopped me in the hall and asked if I had a job. And I said, well, you know, I know at that time I had been working in the office of Ed Prichard and anticipated going to work for him later. But we hadn't formally decided on any kind of job offer or anything. So I told him, you know, that I was still looking. And so he said, well, I want you to call, he said, would you be interested in clerking for Ed Johnstone? And I said, "Well, of course I would." And he said, "Well, you give Ed Johnstone a call tomorrow. You tell him that I told you to call him."

KASARABADA: Just like that, it was [???].

SHEPHERD: Just like that (both laugh). Yeah. So I did. And Judge Johnstone had me come up to meet him in Louisville at the courthouse and offered me the job. 00:14:00Really, it was, you know, Johnstone, if--Johnstone's attitude was if Bob Lawson says this kid is OK, then he's okay, you know?

KASARABADA: So I want to come back to that meeting, but first ask you a little bit more about law school.

SHEPHERD: Um-hm.

KASARABADA: You'd mentioned interning with Ed Prichard, right?

SHEPHERD: Right. Yeah.

KASARABADA: How did that come about?

SHEPHERD: Well, I had gotten to know Mr. Prichard when I was in college and during a semester in college, I went to Asbury College, but for a semester at Asbury, I worked as an intern for the Legislative Research Commission and their intern program in the 1976 session of the Kentucky legislature. And so during that session of the legislature, I got to know and became close friends with a 00:15:00couple of people who were close to Mr. Prichard, David Hawpe, who at that time was covering the legislature but also was, had been the eastern Kentucky correspondent for The Courier and later an editorial writer for The Courier. And then he later became the editor, managing editor and editor of the paper. And David Hawpe was one of the circle of reporters who were very close to Mr. Prichard. And, you know, he was a source for them. And, and he and Mr. Prichard had a very devoted following of reporters. And David was one of those who, again, I got to know when I worked in the legislature. And David--that was about the time that Mr. Prichard was losing his eyesight--so David was one of the 00:16:00people who kind of was on the lookout for young people who could help Mr. Prichard by reading for him. So David recommended me to Mr. Prichard as somebody who, who might be a reader for him. And Mr. Prichard took me under his wing, and we developed a close friendship. And again, he was a wonderful mentor for me. And through really that introduction from David Hawpe, I started reading for Ed Prichard. And I would go down to his office once a week and pick up an armload of periodicals and borrow a tape recorder. And I would tape--that was back, you know, in the days before the Internet and books on even, you know, periodicals being available on tape. So, you know, so I would read The New Republic, The New 00:17:00York Review of Books, you know, The Washington Post--

KASARABADA: --cover to cover--

SHEPHERD: --commentary. Not cover to cover. I mean, he ,he, you know, he, if there was a particular article he knew about, he would, you know, he would steer me to it. But otherwise, he kind of just relied on my discretion to read the stuff that I thought would be interesting to him. So, you know, that would generally be in the areas of politics and history and biography and, you know, so which were all interests that I shared.

KASARABADA: You probably knew all the names in those articles.

SHEPHERD: Yes, I knew many of the principals--

KASARABADA: --exactly.

SHEPHERD: So that was a thrilling thing for me to, you know, to, to be a part of his intellectual world. And, you know, it was a very eye-opening experience and 00:18:00a great part of my education, you know, so and then, you know, occasionally I would read longer. You know, I'll never forget the experience of reading from cover to cover for Mr. Prichard, the, the first volume of Robert Caro, his biography of Lyndon Johnson, which covered the timeframe in which Mr. Prichard knew and worked with Lyndon Johnson and was really part of that group of young New Dealers in Washington that had a great impact on the New Deal and on Lyndon Johnson's later career. So that was a, that was a thrilling experience for me. And I literally, I would read, I read, you know, until I, until I was hoarse, you know, he was, he would occasionally, when he could tell my voice was failing, he would interrupt and give me kind of his own recollections of various 00:19:00events. You know, the, the party that, that they had after the 1938 elections, you know, where Philip Graham and, and Lyndon Johnson and Jim, Jim Rowe gathered to listen to the election returns and things like that. And then, you know, sure enough, Caro would in a few pages, Caro, would write about the same events. So it would be, you know, it was just a fascinating experience for a young kid who was kind of a political junkie, you know?

KASARABADA: That's pretty amazing. You're hearing it--

SHEPHERD: --yeah--

KASARABADA: --from one of the main characters in that story.

SHEPHERD: Yeah.

KASARABADA: I had had the idea that maybe the clerkship came about through Mr. Prichard.

SHEPHERD: Well, you know, Mr. Prichard, the relationship with Prich was kind of 00:20:00the icing on the cake. It really originated with Bob Lawson. But when he found out that I had this relationship with Mr. Prichard, you know, he was--Judge Johnstone was just thrilled because he was a great admirer of Mr. Prichard and had been, you know, again, kind of a friend and political ally in the trenches as a young lawyer, you know, in that, that wing of the state Democratic Party. So that was, that kind of sealed things, I think--

KASARABADA: --um-hm--

SHPHERD: --that--and throughout the course of my clerkship, you know, he, he was really thrilled to--there would be numerous, you know, several occasions when he would be holding court in Louisville and we would come down to Frankfort and take Mr. Prichard out to dinner and they would talk over old times. But they 00:21:00were very much cut from the same cloth in terms of their legal philosophy and political philosophy. And, you know, they were great admirers of each other. So, so, yeah, that was kind of--the relationship with Mr. Prichard was kind of icing on the cake. But Bob Lawson was the one who, who really, I think, got the job for me.

KASARABADA: Okay. So you'd mentioned that that first meeting, which sounds almost maybe pro forma if Bob Lawson says hire Phil Shepherd--

SHEPHERD: --I think that's probably true. You know, although he, you know, he was such a compelling figure in terms of his, well, you know, kind of larger than life personality. So, you know, even in that first meeting, you know, you got a sense that this is a very special person who, who, who's got great charisma. And I think that he did--the one thing he, he was sensitive to, I 00:22:00think, in interviewing clerks and potential clerks, was that he wanted to make sure that there was a good personal chemistry, not just with him, but with the other members of his staff. And he had, you know, a very good sense of that, I think.

KASARABADA: At that time, how many staff did he have? His secretary?

SHEPHERD: Yeah. Barbara D'Angelo was his longtime and very devoted secretary who was very important to him, to have somebody who would, who could work well with Barbara. And then he had a courtroom deputy from the clerk's office who did scheduling, who was a young guy about my age who you may want to talk to, named Bob McClure. Bob, you know, later went on to become a lawyer himself and has now become an author and has written a series of mystery novels that are kind of in 00:23:00a legal genre. But Bob McClure was his young scheduler. He had another law clerk named Les Adams, who is still practicing law in Louisville, was a charming, lovely guy. And those were the primary staff people that he had at that time.

KASARABADA: What kind of questions did he ask you? Do you remember?

SHEPHERD: Gosh, you know, I don't--I mean, he was interested, he was interested in my background more on a personal level. And he knew something about my family because my Uncle Paul, who was also a Methodist minister, had served as the Methodist minister in Princeton in the small town where he practiced law. So, you know, Kentucky really is kind of just a big, small town. And there's so many interconnections. And we--so our families had some interconnections in that 00:24:00sense. And so he obviously knew my uncle and aunt, Paul and Margaret, and they had children who were about the, you know, in the same age brackets as the Johnstone kids when they were, you know--this would have been when my cousins would have been probably in elementary school or maybe junior high school. But, but Judge Johnstone was a great people-person, and so he remembered Paul Shepherd and that family very well. So--

KASARABADA: --I guess if you get to talking with anybody in Kentucky sooner or later you find some connection--

SHEPHERD: That's true. There's a yeah, there's not six degrees of separation, but maybe one or two.

KASARABADA: You'd mentioned kind of tentatively thinking about going into practice with Mr. Prichard. So how did the clerkship factor into it? What did you--

SHEPHERD: --well--

KASARABADA: --what was going to come out of that?

SHEPHERD: --you know, I mean, I just felt like that, that was a great--and, of course, Mr. Prichard was just thrilled that I would have the opportunity to clerk for Ed Johnstone because he, he loved Ed Johnstone as a person and as a lawyer and as a friend and, and as a judge. So he, you know, he, he was very encouraging of my opportunity there to work for Judge Johnstone. And, you know, I also felt like, and I think Mr. Prichard felt like that, you know, there's really no better, no better job for a young lawyer coming out of law school to really learn the basics of litigation. You know, the nuts and bolts of, of, of how a trial works and how discovery, you know, how discovery works and the strategy and tactics of, of litigation and to, to be a law clerk for a federal 00:26:00district judge. And of course, I think that opportunity was even greater for Judge Johnstone because he had been a, you know, an enormously successful trial lawyer--

KASARABADA: --um-hm--

SHEPHERD: --as a practitioner. And Judge Johnstone had a extremely acute sense of, you know, legal strategy and tactics. That was just, you know, he was a great teacher in that sense because he was very sharp about sizing up the, the weaknesses and strengths of a case and, and the weaknesses and strengths of the lawyers who practice before him. And so that was a great learning experience for me.

KASARABADA: You'd mentioned that upon meeting him, you could feel his charisma--

SHEPHERD: --uh-huh--

KASARABADA: --his presence. Are there any other first impressions that you recall from that time?

SHEPHERD: Well, you know, of course, you know, he's, you know, he does or he did 00:27:00come across, you know, as just a larger than life figure, partly because he was a big man physically. You know, he was six-four, six-five, and, you know, had enormous hands and, and a booming voice. And, you know, he, you know, in that sense, you could tell he was a, you know, he was a large figure, not just, you know, in terms of his intellect and his presence, but just his, you know, physically, a large figure. And also, you could also detect a, you know, it was obvious in any encounter with him that he was a person of great warmth and great humanity and great, you know, he was a person who just loved people and had great intellectual curiosity about people, you know, so, you know, which made 00:28:00the whole experience of being in his orbit a very, you know, fun experience, but also a great learning experience because, you know, he did have, he had kind of an unquenchable sense of intellectual curiosity.

KASARABADA: So you accept the clerkship? Did you move? Where were you? You were in Lexington--

SHEPHERD: --yeah. So I took the bar exam in July of 1980 and then just right after that, moved to Paducah, which was his primary duty station. Although one of the great things about working for Judge Johnstone was that he, unlike, I think, any of his colleagues in the federal judiciary, he loved to travel the circuit of these other small court stations. So, you know, he, you know, so he 00:29:00had, I think, really the entire docket of the Bowling Green division of the federal court. And he had at least half of the docket of the Owensboro division. Judge Gordon was still on senior status at that time. So Judge Gordon, he heard some cases in Owensboro. And then he had, I think, a third of the criminal docket in Louisville. And, and also some portion of the civil docket in Louisville, so we were on the road a lot, which was, you know, again, it was an entertaining experience. But, you know, so Paducah was the home base and probably about half of our time was spent in Paducah and the other half was split between Owensboro, Bowling Green and Louisville. So as a result of that, 00:30:00we got to see, you know, really, I think the best lawyers in all those communities and learn a lot about the, the area as well as, just have the variety of experience. So, which was, you know, was fun for a young clerk, but it was, it was physically demanding. And, you know, he, but he seemed to thrive on that. He loved being on the road, and he loved meeting new people again. And so he had more outlets for his intellectual and personal curiosity by riding the circuit. And I think--so that, that was a great experience for me.

KASARABADA: What were your responsibilities as a law clerk? Were they spelled out for you, or did you just kind of pick it up?

SHEPHERD: Well, I, I wouldn't say they were really spelled out. They were very utilitarian, you know.

KASARABADA: Um-hm.

SHEPHERD: So Judge Johnstone would typically, particularly as he traveled around, you know, he would schedule daylong marathons of pretrial conferences, he, he might have, you know, like ten or fifteen pretrial conferences in a day, you know, scheduled every forty-five minutes. So he was kind of a fanatic about, when you did pretrial conferences, to have an order go out the next day that summarized what the parties were to do. So I would, you know, sit in on the pretrial conferences and draft those orders, which were more just case management type stuff usually. And so that was one part of the job and then the other part would be just to, to research and draft opinions on stuff that was 00:32:00legal in nature primarily. So summary judgment rulings, Social Security cases, you know, which, you know, people who were denied their Social Security disability would appeal to the federal district court. So those cases were just reviewed on a, on the record. And so he would have the law clerks, would obviously assist him by reviewing the record and drafting opinions and making recommendations about cases. So, you know, that was, it was, you know, partly a case management of just doing pretrial orders and others, you know, research and writing and drafting of opinions.

KASARABADA: That's pretty prompt of him to send out orders.

SHEPHERD: Yeah. He, he was, I, he was, you know, very sensitive to--I think he understood that, you know, lawyers are--having practiced law for so long--that 00:33:00lawyers are sensitive to deadlines. So if you want to get a case, you want to get, keep a case on track, you've got to give lawyers deadlines. And so, you know, he would, he, he was kind of a fanatic about getting orders out for each conference to make sure everybody knew what their deadlines were.

KASARABADA: How active was he in case management? Did he kind of let the lawyers do their thing or was he, did he encourage, you know?

SHEPHERD: Well, you know, he was pretty at, you know, again, you know, I think having been a trial lawyer, he, he kind of understood, you know, the needs and limitations in terms of scheduling. So, you know, he was very deferential to lawyers in terms of accommodating their schedules and their personal needs. Or if, you know, a lawyer had a vacation schedule, he would, he would always understand that and give that priority because, you know, I think he felt like a lot of lawyers neglected their family life, you know, because of their practice. 00:34:00And so he, he wanted to encourage lawyers to, to do that kind of thing. But, you know, he was, you know, I'd say he was a lawyer's judge in the sense that he understood the needs and demands of a law practice. And he tried to shape his case management orders and philosophy to, to make it easier for the lawyers to, you know, to get the job done.

KASARABADA: What was a typical day like for you?

SHEPHERD: Well, again, it would depend if you're on the road or, you know. But on those marathon days, you would just have one pretrial conference after another and take notes and make sure you could, you know, you could write up an order that would reflect the directives of the Court and the deadlines. And then, you know, on days that worked in pretrial conferences, you know, a lot of 00:35:00us just doing research, you know, a lot of us just legal research and reading the briefs of the parties and the, you know, and typically he would like to, you know, you would read the briefs and meet with the judge and kind of kick it around and get a direction from him as to what he, what direction he wanted to go. And then you'd try to draft something that would, that would reflect his evaluation about, you know, what the, what the legal issues should be.

KASARABADA: Did most of that take place at the Paducah offices?

SHEPHERD: Yeah. Probably more than anywhere, you know. See when we would go to Bowling Green and Owensboro and Louisville--there would, you know, usually that would be scheduled so you'd have a lot of pretrial conferences in a short period 00:36:00of time. So, you know, you didn't waste time. You know, you wouldn't go to Bowling Green to do one pretrial conference. You'd try to schedule ten so that you could keep that whole docket moving. So those days, you know, were, were busy days. And, but most of the down days in terms of scheduling and the time when you would devote more time to research and writing would be in Paducah. And of course, you know, when I was working for him, it was kind of at the--there were a couple of cases that were kind of dominant on the docket in terms of demanding a lot of time and attention. And I worked for him during the kind of the, one of the busy times in the long-running class action case involving conditions of confinement at the state prisons at La Grange and Eddyville, and 00:37:00then also at the time when a new class action was filed regarding the conditions of confinement at the women's prison at Peewee Valley. So--

KASARABADA: --I definitely want to come to those--

SHEPHERD: --those were, those were time consuming cases. And so we probably spent a, you know, a disproportionate amount of time on those just because they were demanding. There was a lot going on in them in terms of legal issues and hearings and stuff like that, so.

KASARABADA: I definitely want to spend a good amount of time on that. But before we do, is--did anything else about his caseload at the time strike you? Were, was there an inordinate amount of civil versus criminal, or insurance versus--

SHEPHERD: No, I think it was a good, you know, it was a good balance. You know, what, one thing that I did gain an appreciation of was that the, you know, there 00:38:00were really excellent lawyers in Bowling Green and Owensboro and Paducah. And I really felt like that, those lawyers had a great appreciation for Judge Johnstone because, you know, he came to their community. He said, you know, I think that the norm in the Western District of Kentucky had been that, you know, was when the judges were all from Louisville or if they were from another area of the district, from Paducah or Bowling Green, they would move to Louisville. And once they got kind of ensconced in Louisville, they didn't like to travel very much, and they didn't like to go to these other divisions. So those dockets kind of got neglected. And, you know, the lawyers in Paducah, you know, told me that when they, before Judge Johnstone got appointed, that they would really do everything they could to keep a case out of federal court because those cases would languish because the judges from Louisville hated to travel to Paducah, 00:39:00and they'd put those cases on the back burner, and you couldn't get a decision. So there were really, the Paducah docket in the federal court was, was not very big, but mainly--not because there weren't people with federal claims that needed adjudication--but because the lawyers just tried to avoid being in federal court. And, you know, once Judge Johnstone made the federal court more accessible to people by being there and by paying attention to their cases, you know, that docket in Paducah really, really boomed. And it became a very busy docket. And I think to some extent, that was also true in Bowling Green and in Owensboro. So I think the lawyers had a great sense of appreciation for him for that reason as well. So.

KASARABADA: I have the impression that chambers staff tends to see the personal 00:40:00side of a judge, you know, more than anyone except maybe family or personal friends. Would you say that's true?

SHEPHERD: Yeah, I think that's true. And I think Judge Johnstone very much fostered this kind of atmosphere in which the chambers staff, the law clerks and the secretary and the court, and the courtroom deputies and the marshals, you know, were viewed by him as an extended family. So, you know, I think there was very much that atmosphere in his chambers. And that was a very close, there were very close relationships among all the staff members, and, and I think, Judge Johnstone, it was important to him that he had that kind of relationship with the staff members, and that the staff members had that kind of relationship with each other. So that's something that he really set a great example of and he 00:41:00encouraged. And, you know, if there was friction between staff members, it was a source of great consternation for him. So, you know, during my time, I don't really--there really wasn't any friction. But I think at various times in his career, there was, there was some and that was something that he, he fretted over I think.

KASARABADA: It was as important to him that everybody in the office had to get along.

SHEPHERD: Yes, very much so.

KASARABADA: Is there anything you can share about the way he liked his chambers run, you know, quirks or idiosyncrasies of how he liked to work?

SHEPHERD: Well, you know, a couple of things. I mean, I think he did as I said, he was kind of a fanatic, I think in my tenure, and I think probably throughout his tenure about getting orders out promptly and doing these pretrial orders. 00:42:00You know, when you had the conferences, he was also a fanatic about, you know, the federal courts then, and I think even today, the Administrative Office of the Courts publishes a list of cases that are under submission.

KASARABADA: Um-hm.

SHEPHERD: So, you know, if you've got a docket of five hundred cases, you may have, you know, sixty or seventy-five cases that have been, where there's a motion that's been briefed and submitted and ready for decision. And he was a fanatic about getting his rulings out on those cases. You know, during the first thirty days that they're on the list, you know, so--

KASARABADA: --that's ambitious.

SHEPHERD: Yeah, yeah. He did not want to have any cases linger for, you know, sixty, ninety, a hundred and twenty days, which, you know, is really not that uncommon. But that's kind of a management, case management tool that he was very 00:43:00sensitive to, partly because I think he was a competitive person, you know, so he wanted to show--

KASARABADA: --who was he competing with? (both laugh)--

SHEPHERD: --with the other judges. He wanted to show, you know, that--well, and he wanted the lawyers to know that, you know, when, when they had a case ready for submission, he decided, you know. So I think he was in that sense kind of competing, you know, for the approval of the practicing bar. And he also was very competitive about closing cases. You know, he kept them--he had a larger docket, I think, than most of the other judges, because he did, he had all of the Paducah docket, all of the Bowling Green docket, most of the Owensboro docket and some of the Louisville docket. And so he took great pride in the statistics that AOC kept about how, which judges closed the most cases.

And, you know, I think when the monthly reports came out, it was a very rare 00:44:00month when he didn't close more cases than, than any other judge. And he was, he was acutely aware of that.

KASARABADA: That's great. Did he have any particular ways that he liked to manage his courtroom? Was he particular in how lawyers comported themselves?

SHEPHERD: Yeah, I would say that he, he liked to manage his courtroom really just through the strength of his presence and not through any, you know, he was extremely solicitous of the lawyers and the jurors and the witnesses. He wanted to have a courtroom that, there was, that was very collegial and where people cooperated out of respect for him and respect for the courts rather than, you know--he never, as far as I know, he never used a gavel. And all the years he was on the bench, you know. And I think he felt like if you ran your courtroom 00:45:00the way it should be run, that you didn't need a gavel, that, you know, people would show respect for the, for the judge and for the system and, and would cooperate. So, you know, occasionally when you had a lawyer who would kind of test the boundaries and grandstand, it frustrated him a little bit. And he did not appreciate that. But that was very rare. I mean, typically, you know, he just, he ran the courtroom very efficiently. But, you know, is--with a light touch because, again, the tone he set was one of great courtesy for everybody involved, including, you know, the jurors and the witnesses. And that set a good atmosphere.

KASARABADA: You mentioned that he would kind of make his displeasure known if an 00:46:00attorney was performing a little bit too much or grandstanding.

SHEPHERD: Yeah.

KASARABADA: Do you remember any occurrence?

SHEPHERD: Well, I'm trying to think, it's, you know, he would, you know, he, he would probably more express that privately in the chambers than publicly. So, you know, that's not something that he would, he would not dress an attorney down, but he would let it be known privately that he didn't agree with their approach on those kinds of things. So.

KASARABADA: At--you gave a eulogy at his service.

SHEPHERD: Um-hm.

KASARABADA: And you were quoted as saying that he had an innate understanding of the drama of the courtroom, from the art of cross-examination, the credibility of witnesses and the motivations of jurors. Can you talk about that a bit more? How did you see that play out from your perspective as a law clerk?

SHEPHERD: Well, you know, that was one of the great learning experiences of working for him, was that he, you know, he, he wanted the law clerks to, to observe, to be in the courtroom when there was a jury trial so we could learn, you know, about how to do an effective cross-examination and opening statement or closing statement. And so, you know, as during trials, he would, you know, then after the, when we'd recess for the evening, you know, we would, I think pretty typically, you know, the court staff would often go out to dinner with him and talk about the day's events. And he would, he would kind of share his views of the strengths and weaknesses of the lawyers and their performances in court. So that was a great tutorial, you know, for us. But typically, that's, 00:48:00that's what he would do. Yeah. And occasionally he would, you know, he would let us know that in the midst of a trial, you know, if he saw something that he really liked. And I could remember one case in which there was a guy who had been offered as an expert witness in a case and the guy had unfortunately, he had kind of puffed up his credentials. You know more than what the facts really justified. So he had exaggerated his academic credentials and his prior experience, and the lawyer on the opposing side had done a good job and, you know, researching his, his qualifications. And, you know, so typically when an 00:49:00expert comes to testify, they offer them as an expert and they present their curriculum vitae on the court just routinely, you know, recognizes them as an expert. But in this case, the opposing counsel asked to cross-examine the witness before the court ruled, and she just annihilated this guy. You know, I mean, she just--he lost all credibility because of the way that she essentially just, you know, ripped apart his resum in the way he'd exaggerated it. And it was really quite an effective demonstration of good courtroom advocacy. And I could tell--and it just pleased Judge Johnstone to no end to see that it was a very young woman lawyer who had done this. And he was very impressed with that. And in fact, he motioned me up to the bench, and he kind of leaned over and 00:50:00whispered, he said, "Shep, you know, this is a real biting sow", which he meant as the highest form of compliment.

KASARABADA: I was gonna say, that is a compliment right?

SHEPHERD: Yeah, but probably is better that it wasn't reported at the time (Kasarabada laughs) but he meant that as an extremely high compliment. So.

KASARABADA: That's great. What kind of cases was he passionate about? Where did he get really animated or, you know, actively engaged?

SHEPHERD: Well, you know, I mean, I think he, he was very engaged in the whole, his whole docket. But, you know, I think he did have a great passion for civil rights cases. And I think he had a great passion for the criminal docket. You know, having practiced as a criminal defense lawyer--

KASARABADA: --um-hm--

SHEPHERD: --you know, I think that gave him a special sensitivity to the 00:51:00importance of the procedural protections and the constitutional rights of defendants. And so I think he, he had great passion for, for those things. And I think in man ways he had, you know, he had seen where the legal system was not very responsive to the needs of a lot of people, you know, people who are poor, people who didn't have access to the court system. And I think he felt strongly about those cases. I think that's one reason the prison cases were so important to him.

KASARABADA: Okay. Let's dive right into the prison cases,

SHEPHERD: Okay.

KASARABADA: Okay. So there were two of them. For the m--for the men's cases, there was Kendrick versus Bland and Thompson versus Bland, and they were consolidated.

SHEPHERD: Right.

KASARABADA: Where, if you remember, where was the, where was the case when you 00:52:00came into the picture?

SHEPHERD: Well, you know, actually, you know, I was thinking back to when I first went to meet with Judge Johnstone. I think it was on a day when they were having, the case had been set for trial, and they had this gigantic pretrial conference in the big majestic court library there of the federal courthouse in Louisville. And the other thing I remember about that was, it was, it was in the spring of 1980, the year I graduated. So, John Y. Brown had just been inaugurated as governor and was new, had a new administration. And so they were, you know, there were a lot of appointments being made in the decision-making positions in state government that were over this thing and Bill McAnulty, who had been a district court judge in Louisville, a juvenile judge and was one of the first African-American judges in the state, was very young, a very young 00:53:00judge at that time, I think probably maybe barely thirty, if he was thirty. And so Governor Brown had appointed Bill McAnulty to be the secretary of the Justice Cabinet. So he would be the primary decision maker for the state, and I think that Judge McAnulty was at that conference, and I think shortly after that, Judge McAnulty, I think he resigned as Justice secretary because he just had decided after his brief exposure to all the problems of the state corrections system, that he, he was more cut out to be a judge than, than a bureaucrat. But he was at that, that conference.

KASARABADA: That was the January 1980 conference?

SHEPHERD: I'm not sure when it was. I think it was a little later in the spring, but it might have been in January. It's very possible that it was. And--

KASARABADA: --so that was after his ???.

SHEPHERD: Yeah. And that was, that was when I first met Judge Johnstone. And then I guess in between that time and when I went to work for him, the terms of the consent decree were negotiated and approved. So I went to work for him about the time that, you know, the actions to implement the consent decree were really starting to gear up.

KASARABADA: Um-hm.

SHEPHERD: And there were, you know, a lot of things that the state had committed to do in terms of upgrading the facilities and revamping their procedures and all of that, that were in, in the process of happening during that period.

KASARABADA: Okay, so you came in right around the time, had the consent decree 00:55:00been signed by then or was it about to?--

SHEPHERD: --I think it had about, you know, I think the consent decree had been signed in the spring of 1980, and I went to work there in the summer.

KASARABADA: I see.

SHEPHERD: So.

KASARABADA: So, what were some of the challenges that you saw in that implementation process?

SHEPHERD: Well, of course, you know, a lot of it was there were overcrowded conditions. Was the source of a lot of the problems there. And so when you have overcrowded conditions, you have a whole laundry list of other problems that are exacerbated because of the overcrowding, you know. So, you know, in terms of programs that are available to inmates, you know, educational programs, vocational programs, the problems with just, you know, finding bed-space for people. And of course, when you have overcrowded conditions, you're more likely 00:56:00to have, you know, fights between the inmates. And, you know, all, you know, security is a more difficult problem. So all of those things, you know. So one of the real focuses of the consent decree was to upgrade the facilities and to eliminate the overcrowding.

KASARABADA: Um-hm.

SHEPHERD: And that was a big, big, big item. And--

KASARABADA: --and it didn't appear that the corrections officials would be able to. There was a deadline--

SHEPHERD: --yeah--

KASARABADA: --for them to reduce the numbers.

SHEPHERD: Correct.

KASARABADA: I think it was kind of up in the air, whether they would.

SHEPHERD: I think it was, it was a ambitious deadline. And there was questions as to whether they would be able to meet that deadline and how the judge would deal with that problem, you know. And I do, and I remember also, you know, one of the things, you know, he wanted to, to have some firsthand knowledge of 00:57:00conditions instead of just relying on testimony from, from witnesses. And so there were a couple of occasions when he decided to make unannounced inspections, where he would go to La Grange or to Eddyville. And, you know, with representatives of both parties, obviously. You walk through the facility, see, let, talk to inmates, hear what they had to say, eat in the prison, eat the prison food, you know--

KASARABADA: --how did that--

SHEPHERD: --it was, you know, so it was very intricate. He had great rapport with, you know, he talked to the guards, you know, talked to the administrators, get a sense for how things were going and that, that I think that gave him a lot of credibility with all of the people involved, including the guards and the 00:58:00inmates, you know, who were kind of the low people on the totem pole. But I think that their understanding, that he was concerned about the conditions for them, helped create an environment where they could make positive changes.

KASARABADA: How did those unannounced visits come about? Were they, he would, would you just call up the counsels and say--

SHEPHERD: --yeah,--

KASARABADA: --I want to go to La Grange in an hour--

SHEPHERD: --right--

KASARABADA: --can you meet me?

SHEPHERD: Yeah, I think that's essentially what he would have Barbara D'Angelo contact the lead counsel for the plaintiffs and the counsel for the Corrections Cabinet and the, and have the counsel for the Corrections Cabinet notify the prison administrators that we were on our way. You know, and, you know, it would be on pretty short notice.

KASARABADA: Did you accompany him?

SHEPHERD: Yeah, I did a couple of times.

KASARABADA: Were they--did you know you were going that day?

SHEPHERD: I would not have much, I would probably have learned about it at a day or two before--

KASARABADA: --that this was coming. Or he's--

SHEPHERD: --yeah--

KASARABADA: --yeah. And so how do you prepare for that visit or is there preparation?

SHEPHERD: You know, you just kind of follow along in his wake. You know, and try to pay attention to anything that he wanted to follow up on. You know, so.

KASARABADA: So were you taking notes then?

SHEPHERD: Yeah, I would take notes or debrief with him when we got back, you know. And he would also, you know, I think he was also very sensitive to the role of the media because he, you know, he knew that you're, that the state was more likely to comply with this ambitious consent decree if there was public attention on the problem. So whenever we did that, he would be sure that, you know, the reporters for the Courier Journal or whoever was notified and that 01:00:00they were allowed to come along with us. So--

KASARABADA: --that's very savvy.

SHEPHERD: Yeah. No, he, he had a great sense for how to, how to shape the debate on, on an issue like that.

KASARABADA: Are there any particular moments from those stories, those visits to stand out to you? Or let's back up. What were your impressions? Or, well, was this the first time you were visiting a penitentiary?

SHEPHERD: Yeah, yeah. I mean, it was a, it was, you know, it was a, you know, for a young lawyer just out of law school. It was quite a fascinating experience to, you know, to, to, to observe his interactions with the prison staff from the warden down to the, to the prison guards. And he made a point of wanting to interact with, you know, the, the, the rank and file employees and not just the management.

KASARABADA: Um-hm.

SHEPHERD: And he would get feedback from them, you know, about how they were having to work too much overtime or they weren't paid enough, or whatever it was. And, you know, and I remember eating at the cafeteria at La Grange and that's one reason he wanted to do it now so he could see what people were really being fed so they wouldn't, you know, put on a nice meal knowing that he was coming to visit and, but he was very you know, I thought the food was really not very good. It was pretty bad. But his attitude about the food was, you know, well, I had worse in the army (Kasarabada laughs). So you couldn't argue with that.

KASARABADA: Did you get the impression and did the judge get the impression that the prisoners and staff were speaking freely, were, felt they could be frank?

SHEPHERD: Yeah. Yeah.

KASARABADA: That they could be frank?

SHEPHERD: Yeah, I think so, yeah.

KASARABADA: Okay. Anything else that stands out to you?

SHEPHERD: Well, those were the, those are the main points. You know, I do think his use of the media, his, and his outreach to the rank and file staff people and, and to prisoners, his interaction with prisoners all really helped create an atmosphere where everybody wanted to--really I mean, he and his great personal charisma was a part of this to where everybody wanted to please him. They, they wanted to, people wanted to gain his approval because, you know, he, he had that great personal charisma, I think. And it was, you know, he was good at cultivating people, you know.

KASARABADA: The Department of Justice, Civil Rights Division. They were a part 01:03:00of the cases, plaintiff intervenors. Were they a part of the consent decree process?

SHEPHERD: You know, I'm not sure about that. I, you know, the really, the Department of Justice, I don't think played that central a role in the Thompson and the Kendrick cases, although I think they did play some role. All of that happened pretty much their role, I think, was pretty much before I started work for Judge Johnstone. Now, the Department of Justice, the Civil Rights Division, played a very critical role in the women's prison case. And that, that was another, you know, really interesting story to me. Which, you know, I didn't 01:04:00really learn about it until, or all the aspects of it, I may not know all the aspects of it now, but I learned that there was another layer of that story that, that came out when Chief Justice Roberts was confirmed for his--in the Supreme Court. One of the things, you know, of course, they combed through his record and he was a young lawyer at the Justice Department in the early years of the Reagan administration. And so this case, the women's prison case was being developed and was about to be filed at the, about the time that, that President Carter got defeated and President Reagan came in. And, of course, there was a sea change in philosophy at the Justice Department at that time and a lot of public attention and controversy to the Reagan administration's much different 01:05:00view of civil rights and the role of the Justice Department. And it was at that time in the early part of 1981 that the women's prison case was being filed and the plaintiffs, the, representing the women inmates, had been seeking the intervention of the Justice Department as far as litigating amicus curiae. And, but that hadn't come to fruition before the administrations changed. And most people thought that after Reagan--William French Smith--became the attorney general, that there was no way in the world that the Justice Department would participate in this case. And apparently there was a huge battle raging within the Justice Department as to whether the Justice Department should participate 01:06:00in cases like this at all. And apparently, the, the chief advocate of changing course and not intervening was a young lawyer named John Roberts, who was an assistant to William French Smith and the new assistant attorney general for civil rights was William Bradford Reynolds, who, you know, was, you know, viewed by the civil rights community as, you know, as an adversary of civil rights--

KASARABADA: --in terms of the Department of Justice intervening--

SHEPHERD: Yeah, yeah. He was kind of, you know, a corporate lawyer who was a hostile to the traditional role of civil, of the civil rights division and was viewed with great skepticism or hostility by, by the civil rights community. So, 01:07:00you know, the--no, nobody really thought the Justice Department would intervene, but there was a, you know, very strong push from this, from the professional career attorneys in the civil rights division to do this for a lot of reasons. You know, women's--there'd been a lot of litigation over men's presence, but very little, if any, litigation over conditions at women's prisons. And there had been a couple of recent Supreme Court cases that indicated that the gender discrimination was, you know, the profile of the issue was being raised.

KASARABADA: Um-hm.

SHEPHERD: And, and there was a push by, you know, the career staff and the Justice Department's Civil Rights Division to intervene. And much to, to my 01:08:00shock when we were in Louisville one day in 1981 after the change of administration, you know, we got a, we got a certified letter from the Justice Department's civil rights division that contained a certification from William Bradford Reynolds of the--that of the finding that they had made, that the case had extreme public importance and justified participation by the Justice Department. And I was absolutely flabbergasted. But it was, you know, apparently there was a big internal battle over that in the Justice Department. And John Roberts apparently came out on the losing end of that, and they played a big role in that, in the lawsuit. And there was a really, really capable lawyer litigating on behalf of the Justice Department named Susan Deller Ross, who had 01:09:00written, you know, she was very involved in litigating sex discrimination claims. I think she later taught at Georgetown Law School and had a, had a really significant career as a lawyer and a law professor. But she was the lead counsel for the Justice Department. So I guess she may have gotten the better of John Roberts on that internal debate, but that was--

KASARABADA: --how significant do you think that was?

SHEPHERD: Well, it was very significant to the, to the, to the litigation of the women's present case, because the Justice Department really, they brought to the table just an enormous amount of expertise. You know, the, the lawyers for the women prisoners were legal aid, the Louisville Legal Aid Society, who had some terrific lawyers, but they didn't have any money to hire experts and to, you 01:10:00know, to do that kind of thing, and the Justice Department was able to bring in really top flight experts on, on the issues of the denial of vocational opportunities to women and stuff like that, that, you know, that I don't think that the plaintiffs could have ever done in the absence of the Justice Department's intervention. So I think it was very significant.

KASARABADA: What--how does the DOJ's--how does the counsel's relationship play out with the judge when they're there as amicus counsel? What does that mean on a day to day basis?

SHEPHERD: Well, I mean, as in that case, you know, certainly they were just full essentially litigating parties, you know?

KASARABADA: Okay.

SHEPHERD: Now, the judge, you know, again, this is kind of an extension of his 01:11:00general philosophy of life and his, you know, his love of people. You know, he, he, he cultivated good relations with all of the lawyers. You know, I mean, it was important to him to, to have, you know, a civil discourse in the courtroom. And so he was very sensitive to that.

And I think in a way, he wanted to establish the atmosphere that, you know, in his courtroom, that the lawyers were all equal and that they were all, you know, kind of honorary members of his extended family. So, you know, so, again, everybody wanted to please him and nobody wanted to incur his, his wrath or his disappointment.

KASARABADA: Um-hm.

SHEPHERD: So, and I think that that really made contentious cases like that one, 01:12:00which was quite contentious, it made the cases go much more smoothly because, you know, he had great affection and appreciation for, you know, the lawyers for the, for the state were the lead counsel were Paul Isaacs and Barbara Jones, who he had great affection for. And he also, I think, felt that way about the attorneys for the, for the prisoners. And so that was you know, that was kind of an important point with him, was to cultivate good relations with the lawyers and to elicit their good behavior by having that kind of an atmosphere.

KASARABADA: You mentioned that this case got pretty contentious. What were the most significant content--points of contention?

SHEPHERD: Well, you know, I think that the, the most significant flashpoint of contention in that case was the woman who was the warden at the women's prison was a--

KASARABADA: --Kassulke?

SHEPHERD: Betty Kassulke was a, you know, a very dedicated person, longtime civil servant who had kind of risen through the ranks. She was the only female warden, you know. And so I think that in many ways, the administration of the Corrections Cabinet and the Justice Cabinet didn't want to intrude into her domain. You know, and I think she was well-intentioned, but she had developed a kind of a behavior modification system--

KASARABADA: --um-hm, the levels--

SHEPHERD :--the, the level system that was, you know, very crude and totally 01:14:00unsupported by any kind of science. You know, it was, it was almost, you know, it was almost Orwellian. You know, in terms of the meting out of privileges and the withholding of privileges based on, you know, very petty considerations that kind of made the, the whole facility, you know, just I think it was very patronizing and condescending toward the inmates--

KASARABADA: --um-hm--

SHEPHERD: --and created a lot of hostility in, and was often abused by mid-level 01:15:00and lower-level staff people. So it created a really bad atmosphere. And I think she was very well-intentioned in doing it, but was totally in over her head in terms of, you know, actually, you know, designing some kind of behavior modification system that had a kind of scientific basis. So, you know, she was very defensive and her staff was very defensive about being questioned about that, which caused a lot of tension I think.

KASARABADA: So, because she was one of the few women or, excuse me, the only woman at that level in corrections, she, she, her experience and her longevity was given deference. Which allowed her to develop these--

SHEPHERD: --yeah, I think that's true. Yeah, I think that's, that was one of the, one of the underlying issues there.

KASARABADA: I was struck in his opinion. Judge Johnston made a point of 01:16:00commending the Correctional Institute prison officials on their good intentions and their good efforts. And that was certainly a different note than he struck with, in the, you know, Thompson--

SHEPHERD: --yeah--

KASARABADA: --and Kendrick cases. And that did stand out to me.

SHEPHERD: And I think part of that, too, I mean, I think he, I mean, he obviously, he, I think he genuinely believed that. But, you know, in his experience in the men's cases, I think he, he felt strongly about that because he, you know, he'd been a circuit judge in Lyon County at the Eddyville prison. And he'd been a defense lawyer. And he, and he lived in the community. And I think he knew, he just had more personal knowledge that there were some guards at the Eddyville prison who were very abusive. You know, I think who were 01:17:00physically and psychologically abusive to prisoners. And I think he knew that. And he--

KASARABADA: --he had represented prisoners before, I believe, in that.

SHEPHERD: Yeah, I'm sure he did.

KASARABADA: At Eddyville at least.

SHEPHERD: Yes. Yeah. And so, I mean, I think that he felt strongly about that because he had, you know, experienced at the scene and witnessed it and he had no toleration for that. You know, that was, you know, and I don't know. But I think in many ways, his feelings about humane treatment of prisoners went back to his experience in World War Two. You know, I think he, you know, he was, he was, he witnessed the liberation of the Dachau prison camp as a, I don't know 01:18:00how, a very young soldier in his, in his early to mid-twenties, and that had a profound effect on him, I think. So I think that, that was, that was always in the back of his mind when he dealt with those prisoner cases and when he dealt with, with being dealt with guards who he felt like were abusive of their authority. I think that, I think that was in the back of his mind.

KASARABADA: Well, certainly when prison conditions can be, can evoke memories of Dachau.

SHEPHERD: Yeah. Yeah, well, and the other thing was that, you know, I mean, the Eddyville Prison had been, had become almost a, you know, kind of a jungle before this lawsuit was, was filed. You know, it was kind of an orphan among, with State Corrections Department. And, you know, I think there was a little 01:19:00cabal of guards who kind of ran things to their own liking. And they did it with, by manipulating different factions of prisoners and giving out privileges and letting some people smuggle in contraband--

KASARABADA: --um-hm--

SHEPHERD: --and gain power over other prisoners as long as they kept the guards happy. And it was a, it was a terrible, very unprofessional environment. And again, I think he was somewhat aware of the way things really worked. And as a result, there, you know, in the Eddyville prison in the couple of years before the lawsuit was filed, there were a lot of murders. There were a lot of suicides, you know, because basically the, the, the bad actors among the prison guards had kind of developed a cabal of, you know, with, with the alpha 01:20:00prisoners, you know, to kind of run, run things in a way that was very, very destructive, I think. So.

KASARABADA: I believe that one of the complaints from the prisoners had been about guards.

SHEPHERD: Yeah.

KASARABADA: Untrained guards and they had particular complaints against particular guards.

SHEPHERD: Yeah.

KASARABADA: And I, if I'm recalling correctly, Judge Johnstone made the point that, yes, these prisoners want these particular guards gone. But even if you do that, that's not going to change anything the larger--

SHEPHERD: --yeah, you gotta change the structure. Yeah, yeah. I think those hearings were held maybe the summer or the spring. You know, right before I started work, I think they had, they had hearings over guard misconduct--

KASARABADA: --um-hm--

SHEPHERD: --shortly before I, right in the few weeks before I started.

KASARABADA: I see. Going back to, for the record, the, the women's case was 01:21:00Canterino versus Wilson, which was followed by the women inmates at the Kentucky Correctional Institute for Women. First of all, did Judge Johnstone, did he see that case coming? Was it inevitable, once the men's cases?--

SHEPHERD: No, I don't think he anticipated that at all.

KASARABADA: Ok.

SHEPHERD: And that was, you know, it was filed. You know, it was a, it was filed in Louisville I think that the, although the prison facility itself is actually in Shelby County, which is in the eastern district of Kentucky, but some of the defendants resided in Louisville, so it was proper to file it there.

KASARABADA: Um-hm.

SHEPHERD: But I think the reason it was filed in Louisville was to, to follow up on the, the consent decree cases involving the men's prisons.

KASARABADA: Why do you think this case went to trial when you know the--

SHEPHERD: --I think because of these personal, the personal issues involving the warden there, that was a big factor. Because I think she was totally unreceptive to negotiating any kind of change in her system that she took great pride in. I mean, she thought this, I think she thought this level system was a great innovation in prison management and she was very proud of it and I don't think she was receptive to negotiating any changes in it. And I think the Corrections Cabinet gave her a lot of deference.

KASARABADA: Um-hm.

SHEPHERD: And then the other reason was that, you know, there really, you know, in this whole concept of, you know, applying these concepts from Title Seven of the Civil Rights Act and sex discrimination as it applied to prisons was an 01:23:00novel idea really at that time, you know, I think there was only, there might have been one other case in the country--

KASARABADA: --Glover--

SHEPHERD: --yeah. That, that had dealt with that. But it was new. So you didn't know the, you know, what direction the law was going to take. And obviously, you know, we were aware there was a great dispute internally at the Justice Department about whether that should be considered a violation of Title Seven at all. So I think all of those factors kind of joined together to, to, you know, push it toward a trial instead of a settlement.

KASARABADA: Did the judge do any unscheduled visits the way he had in the--

SHEPHERD: Yeah. Yeah, we did. He may have done more than one, but while I worked for him, we did one. Although to tell you the truth, I'm not a hundred percent 01:24:00sure that that was an unscheduled visit. That might have been scheduled, because, again, that was in the context of a, a case that was going to be tried instead of settled under a consent decree.

KASARABADA: You had to have it on the record.

SHEPHERD: Yeah. So I think that that may have been scheduled, but I'm not a hundred percent sure. But there was definitely a site visit in which, you know, he followed that same pattern of wanting to talk to everybody and talk to, to women who were prisoners, talk to the guards, kind of got a good sense of what life was like at the facility and a comparison of what that facility was physically like compared to the men's prisons.

KASARABADA: Right. Since that was a part of the case, equal protection. Did you have any impressions or do you recall any impressions of the judge's from that visit?

SHEPHERD: Nothing that really was very striking, except that I think he did, you know, again, he interacted with the prisoners, I think, in a very interesting way and talking to them, for example, about their, you know what vocational opportunities, you know, were available because, you know, they didn't have--that was one of the big issues, that, that the women were not given any opportunities for developing skills or training for, you know, more high-paying jobs in the building trades and stuff like that--

KASARABADA: --um-hm--

SHEPHERD: --that were somewhat available for the men.

KASARABADA: He--Judge Johnston said in his opinion that he wasn't breaking any 01:26:00new ground in this case. But as you mentioned, it was really only the second case that was dealing with women. And I think it was Title Nine rights for women prisoners.

SHEPHERD: Yeah.

KASARABADA: It was overturned later on in 1989 by the Sixth Circuit. But I wondered if you had a sense of how the case played in the state's prison reform efforts more broadly?

SHEPHERD: Oh, I think it was pretty significant. And, you know, the, you know, I'd have to go back and look at what the Sixth Circuit did. I don't think it was really overturned. There was a--

KASARABADA: --I think a part of it was.

SHEPHERD: Yeah. I think there's a relatively discrete portion of the case that got reversed.

KASARABADA: That's right.

SHEPHERD: But I think the main thrust of the ruling that he had was, was not disturbed--or maybe even was not appealed. You know, there, there were a couple of points that were appealed, that he was reversed on one aspect of it. But I 01:27:00think the primary thrust of what he did was, was upheld. And I think he, in that opinion, you know, and I worked on that. You know, he--it was important for him. I mean, in his mind, you know, he felt like he was not breaking new ground, although you're applying--you know, because he was, in his mind, he was applying kind of basic tried-and-true concepts of equal protection and due process. And it may be applying it to a, in a new arena, but it's the same concept. So, so in his mind, that's not breaking new ground. That's just applying precedent. I think most lawyers would, would feel like it was more breaking new ground than he did. But he didn't want to be seen or, you know, he, he didn't want to be 01:28:00seen as some judicial innovator either. I don't think he, he wanted that. He did want to project that image. So.

KASARABADA: Were there any differences in the way that the public received this decision as opposed to how that consent decree was received?

SHEPHERD: Well, you know, I, it's hard to gauge that. I mean, I think both of those cases were, that were well received by the public. And I think that's due to a combination of factors. I mean, I think number one--there was a public perception I think that there were problems in the administration of the prison system. And I think Judge Johnstone again, he cultivated an environment of 01:29:00dealing with those in a way that, you know, won the respect of all the participants. So, we did not have the situation, which, you know, I think you, you often have in civil rights cases or in high profile cases involving public issues where one side or the other is kind of demagoguing the issue--

KASARABADA: --um-hm--

SHEPHERD: --to whip up public furor about it. You know, I think both the, the state and the state's lawyers and, and honestly, the state's responsible public officials, you know, from the governor on down, I think they all recognize that there's a serious problem there that needed to be addressed. And so they didn't go out and try to demagogue, you know, the issue about, you know, some liberal 01:30:00federal judge, you know, coddling prisoners. I mean, there was a, I mean, there were some people who, who, who did that. But they, they were kind of marginal figures.

KASARABADA: Um-hm.

SHEPHERD: I don't think anybody really believes that. And part of that was because of the great personal respect that, that they all had for Judge Johnstone. So I think that set the tone, and I think that created the environment for greater public acceptance of the rulings that he made. So I think that was the, that was a big factor. And I think, frankly, the, you know, the first Governor Carroll, and later Governor Brown, both deserve a lot of credit. And Secretary, you know, George Wilson was the cabinet secretary through most of this, but all of those people, I think, acted very responsibly in 01:31:00dealing with the litigation. And again, the lawyers on both sides, I think, tried to focus on the merits of the issue and nobody tried to inflame public opinion. And, you know, the system works a lot better when, when you have those conditions. So.

KASARABADA: Getting to the consent decree in the men's cases was, you know, challenging enough. But it sounds like there were parties, both parties recognized problems and wanted to get to some kind of compromise. But, you know, once the details start to be implemented, then you have problems of language and interpretation and things like that--

SHEPHERD: --yeah, right--

KASARABADA: --were there any particular cases of, you know, vague language or differences in interpretation that kind of stymied the changes that both had agreed to?

SHEPHERD: Well, you know, I, I do think that there, there were some issues that, 01:32:00in my mind were not, you know, really major issues, but, and I'm trying to remember what it was. There was one aspect of the Thompson case that ended up going to the U.S. Supreme Court and the state won that issue. But to me, it was kind of a relatively minor issue.

KASARABADA: That was about visitation.

SHEPHERD: Yeah.

KASARABADA: Department of Corrections versus James Thompson.

SHEPHERD: Yeah, yeah. So, you know, again, there were, there were differences of interpretation. But, you know, overall, I think those are just the normal things that you would expect when you have parties, you know, trying to implement a consent decree.

KASARABADA: Um-hm.

SHEPHERD: And again, I thought that, you know, Judge Johnstone, fostered an attitude on both sides that everybody was going to try to cooperate and deal 01:33:00with the problems. You know, one of the issues that was a little contentious, and I think it bothered Judge Johnstone, was the, the attorneys fee issue, you know, because the amount of attorneys fees that were accumulated in that case that the state had agreed to pay--well and required to pay really under the, you know, the civil rights laws. They became kind of astronomical and it bothered Judge Johnstone, I think as a small town lawyer, you know, to be signing these orders that, you know, where, where hundreds of thousands of dollars were being paid, paid out, which, you know, again, I think were necessary parts of the deal.

KASARABADA: Um-hm.

SHEPHERD: But it kind of shocked him. I think the degree to which that became a liability for the state, although I think he also recognized that, you know, 01:34:00you, if you're going to make change and you're going to implement an ambitious consent decree like that, the lawyers have to be involved in it and it's expensive. But I think that did kind of bother him to some degree.

KASARABADA: Maybe even as a Kentucky citizen--

SHEPHERD: --yeah, well, right.

KASARABADA: That's his money too.

SHEPHERD: Right. I think that's, I think he was very--of course, that was another aspect of his personality. He's, you know, he was always extremely frugal. You know, to do, to, to an extreme degree, you know, he'd drive thirty miles out of his way to save a nickel a gallon of gas (Kasarabada laughs) and that kind of stuff. And very frugal with the public dollars. I mean, you know, he would, you know, he, he, he would, you know, he, he would decline maybe any kind of perk that would be charged to the public.

KASARABADA: Um-hm.

SHEPHERD: And, you know, he would stay at the cheapest motel. That kind of stuff.

KASARABADA: That can be pretty hard going when you're riding the circuit all over western Kentucky.

SHEPHERD: Yeah, right.

KASARABADA: Um, you know, going back to the idea of the human aspect of the law from--as I'm reading up on these cases, what strikes me is that the management of the case, the conferences, the negotiations, the wrangling back and forth in, you know, offices and chambers and things like that. And I'm wondering what the human aspect is in those, in that bureaucratic managerial wrangling.

SHEPHERD: Well, I, I think it's huge. I mean, I do think that that's why this, the case in Kentucky, I think, really resulted in a lot of kind of systemic change that was very positive and in many states the, those cases kind of degenerated into, you know, just bitter, bitterly contested fights in which 01:36:00there wasn't much meaningful change that was accomplished.

KASARABADA: Um-hm.

SHEPHERD: And I think that's again, that's a tribute to the personal involvement and the personal style of Judge Johnstone and his ability to gain the respect and trust of all the people involved. You know, so, and that was important to him. And, he, you know, he, he made a point of, you know, I think part of the reason that worked was because, again, the leadership of the state government, you know, again, Governor Carroll and then Governor Brown, I think both recognized there was a problem. They wanted to do something to fix it. And frankly, I think they recognized that if you're going to spend a lot more money on the prison system, it's a lot easier to get an appropriation from the legislature--

KASARABADA: --um-hm--

SHEPHERD: --if you are saying the federal courts ordered us to do this, you know. So I think they were receptive to doing the right thing and saw that there were advantages in doing the right thing under the auspices of a federal court order. So--

KASARABADA: --right, so we're not spending money on prisoners because we have to. We're doing it because we're under orders.

SHEPHERD: Exactly. Required to.

KASARABADA: Right.

SHEPHERD: And so I think that was part of it. But again, if they had chosen to fight this thing, you know, I don't know that it would have, you know, they probably could have thwarted any kind of meaningful change. And so I think they deserve a lot of credit. And, you know, honestly, I think Judge Johnstone went out of his way to show the governors and the cabinet secretaries and the commissioners that he, you know, he wasn't going to try to ram something down their throats, that he just wanted to do what was right and that he respected 01:38:00their, their views and that he knew that any court orders that he would issue wouldn't be effective unless they were really implemented in good faith by the people who were in charge. So I think he showed a lot of respect and deference toward those public officials. And that was a big part of why they were cooperative instead of trying to fight everything.

KASARABADA: I read a, I read a book by one of the legal aid lawyers that represented, I believe, Thompson versus Land.

SHEPHERD: Um-hm, right.

KASARABADA: Class--was by an attorney named Lloyd Anderson.

SHEPHERD: Right.

KASARABADA: Voices from the Southern Prison.

SHEPHERD: Yeah.

KASARABADA: And he talked about ways that, you know, as the political wrangling 01:39:00around appropriations unfolded in the General Assembly and in the administration, in the Brown administration. Judge Johnstone would kind of let it be known how, you know, his perspective on how what they were doing could affect the case. And he talked about, and the author talked about back channels--

SHEPHERD: --yeah--

KASARABADA: --he would use to communicate. Can you talk about that?

SHEPHERD: Well, you know, that's a good point. I was just thinking, as you were getting into that subject matter, you know, the only instance that I was aware of that--I don't doubt that that happened a lot. You know, the only instance that I think--probably most of that happened in the few months before I got there when they were negotiating the terms of a consent decree. But I do remember at least one occasion when I was there when, you know, I might have 01:40:00been a part of a conduit of Judge Johnstone because, again, he was--there, there was a move there, there was a friction in the Governor Brown's administration over how to handle these issues. And George Wilson, who was a longtime career civil servant, had been a social worker and then worked in corrections and rose through the ranks. African-American guy, very, a very capable guy who is now deceased. But he became the corrections, or sec-secretary, I guess. And he, I think he replaced Judge McAnulty when McAnulty resigned after a very, very brief tenure.

KASARABADA: Um-hm.

SHEPHERD: So anyway, George Wilson became the corrections secretary, and George 01:41:00Wilson was very committed to doing the right thing into making this consent decree work. And, you know, he was very committed to that whole process. And in Governor Brown's administration, there were a few people who were not so keen on that. And there was some kind of a big internal split in the Brown administration that involved, I think it involved Secretary Frank Metz, who was the secretary of transportation, who kind of carried a large portfolio of, you know, just dealing with other high-profile issues in the administration or at least voicing his opinion about them, whether they were in his subject matter--

KASARABADA: --um-hm--

SHEPHERD: --his jurisdiction or not. But there was a lot of, and I don't know what prompted this, but there was a lot of speculation in the press that, that, 01:42:00that George Wilson was going to be fired and that they were going to replace him with somebody who was, you know, more hostile to, to the implementation of the consent decree. And again, I don't know exactly what prompted all of that. But I do, do remember there were, you know, there was a lot of speculation about it. There were stories in the press about it. And there was a genuine concern that, that George Wilson was going to be forced out of Corrections.

KASARABADA: Hm.

SHEPHERD: And, and that was very upsetting to Judge Johnstone, because he felt like, that Wilson was very committed to, you know, to implementing the consent decree--

KASARABADA: --um-hm--

SHEPHERD: --and doing the right thing. So--and Judge Johnstone knew that Governor Brown was very close to Mr. Prichard and had great respect for Mr. 01:43:00Prichard. So he wanted me to be sure to enlist Mr. Prichard's input to Governor Brown, to let him know that it would be very upsetting to the judge if, if Commissioner Wilson got fired. And I conveyed that message to Mr. Prichard. And I have no doubt that he conveyed it to, to Governor Brown. But that, that would be an example of some of the back-channel maneuvering that that I know took place.

KASARABADA: You mentioned that, you know, a lot of that may have happened before you came into your clerkship, but that you wouldn't be surprised that it did. Yeah. Why do you say that?

SHEPHERD: Just knowing how Judge Johnstone operated. You know, I mean, I think he was a great again, a great people--a great judge of people and great at 01:44:00figuring out kind of what made people tick and how to approach them to solve a problem. And so he liked to kind of put, put things together in a way that, that would elicit the right response from the people who could make a difference. So that was, that was one of his great passions, I think, you know. And then later, after this blow up with Commissioner Wilson, I think that, and again, I'm just going from memory here, I would have to go look at the newspapers or whatever that documented this stuff. But I, I think that Governor Brown decided that he, he, he may have put corrections under the Justice Cabinet and he brought in Neil 01:45:00Welch, who had been the FBI agent in charge in New York and was viewed as, you know, kind of a master of the dark arts to kind of be the overseer, so that Commissioner Wilson had to, had to kind of get approval from Neil Welch, who was the, you know, the administration tough guy.

KASARABADA: Um-hm.

SHEPHERD: And, you know, so, you know, and I do remember Judge Johnstone went to some lengths to, you know, he met with, with Secretary Welch. And, you know, you can kind of see them feeling each other out about, you know, how they would approach things and, you know--

KASARABADA: --the consent decree specifically, or just in general?

SHEPHERD: Yeah. Well, I think in general. I think in general. But that was, the 01:46:00subtext was that, you know, the consent decree was looming there, with a lot of challenges to get it implemented. And whether the administration was going to support that or create obstacles--

KASARABADA: --um-hm--

SHEPHERD: --was a big unknown. So, you know, again, Judge Johnstone made, made sure that he had the chance to size up Neil Welch and to and for Neil Welch to size him up. And I think that they really, you know, they hit it off, as he did with most people, and that helped keep things on track to him.

KASARABADA: I think a while later, because I think Judge Wilson was eventually made secretary of corrections. It was a mean-it was moved out from under--

SHEPHERD: It was, I mean, I think ultimately they moved it out from Justice and had the ultimate resolution of this internal debate, which, you know, again, I 01:47:00have no idea what was involved in that. You know, Paul Isaacs could tell you, I'm sure, chapter and verse about what was going on there. But I think the ultimate resolution was Corrections was, was pulled out of the Justice Cabinet and made a separate cabinet.

KASARABADA: Um-hm.

SHEPHERD: And George Wilson became the secretary.

KASARABADA: As you mentioned, George Wilson was the first African-American at the secretary level in state government, Kentucky state government. Do you think that his race had become an issue or factored into the political wrangling that was going on?

SHEPHERD: Well, that's hard to say. I mean, I think it was to the extent that, you know, I think it was to the extent that it would have been, I think George Wilson, you know, he, he incurred some battle scars, again, trying to do what he 01:48:00thought was the right thing.

KASARABADA: Um-hm.

SHEPHERD: And he showed a lot of courage, I think, in doing that. And he made some enemies, I think, within the Brown administration because of that. And I think he did that knowing that it would be awfully hard for John Y. Brown, for a Democratic governor to fire, you know, an African-American cabinet secretary or commissioner, for that matter. So I think he pushed the envelope. and I think he showed a lot of, you know, a lot of courage in doing that. But, yeah, so I think it was a factor to that extent because I think Secretary Wilson realized that, you know, it would, it would not be well received if, if the governor fired the kind of the, the premier black public official in the administration.

KASARABADA: Um-hm. There were also some other people in Brown's administration that Judge Johnstone was familiar with. Robert Stephens.

SHEPHERD: Yeah, sure.

KASARABADA: Who at the time was attorney general. Do you have any recollections of any interactions regarding the consent decree?

SHEPHERD: You know, I don't think so. You know, the attorney general's office really did not play a significant role in the case after its initial inception. I think maybe when the case first started out, the attorney general's office did--was involved to some degree in the early stages. And then when it became clear that it was going to be a big, you know, major piece of class-action litigation, the administration kind of asserted primacy and took it over.

KASARABADA: Okay.

SHEPHERD: So--but I don't think that Bob Stevens really had much of a role in it 01:50:00after that.

KASARABADA: Okay. Were there any other figures in the administration or even in the General Assembly once it came to appropriating funding?

SHEPHERD: Well, you know, again, I do, I do think that, you know, the General Assembly, again, played a constructive role because the leadership of the General Assembly at that time, you know, the General Assembly was kind of going through an evolution where they were kind of asserting their independence from the governor's administration, where, you know, prior to Governor Brown, the General Assembly's leadership was pretty much handpicked by the governor and did the governor's bidding. And starting with Governor Brown, they kind of asserted their own independence. But they did that in a context in which when the consent decree was negotiated and implemented, their leadership was, you know, very high quality leadership. And people who were, you know, the appropriations and 01:51:00revenue committees--

KASARABADA: --um-hm--

SHEPHERD: --at that time were led by, in the House, by Joe Clark and in the Senate by Mike Maloney, both of whom were extremely capable people and excellent lawyers and people who were supportive of, you know, doing the right thing again. People who would be totally opposed to any attempt to demagogue the issue or to score political points by trying to obstruct the federal consent decree. And they were, they were very, you know, responsible people who were, again, I think, supportive of doing the right thing. So that, that made a big difference, too, I think.

KASARABADA: You were quoted as saying the governor did not want to look Judge 01:52:00Johnstone in the eye and be remembered as a politician who failed to rise to the challenge.

SHEPHERD: Well, I think that's true. I think, you know, I think that's true of both, you know, Governor Carroll and Judge Johnstone were contemporaries--

KASARABADA: --um-hm--

SHEPHERD: --and they knew each other and practiced law together and, you know, and had great affection for each other. And, and I think Governor Brown did not know Judge Johnstone so well personally, but had, you know, enormous respect for him, you know, because he was kind of, Judge Johnstone was kind of the quintessential, you know, the country lawyer who had been very successful in his practice and had this great respect throughout the state and--

KASARABADA: --(Kasarabada coughs) excuse me--

SHEPHERD: --you know, was a, was a deeply loved figure. And, and I think, John Y. Brown was very sensitive to that, you know. And I think also and his father 01:53:00was a, you know, John Y. Brown's father was an old, was a country lawyer, you know, had a lot in common with Judge Johnstone, too, who also had great respect for Judge Johnstone. So, you know, again, I thought, I think, Governor Brown wanted to, he, he wanted to win the approval of Judge Johnstone again, partly because of this great personal magnetism that he had so. Well, and, you know, honestly, the other part of that is that, you know, Judge Johnstone, you know, the press loved Judge Johnstone. And I think that they all, all knew that if they did anything that would be viewed as undermining the consent decree or undermining Judge Johnstone's efforts here, that they would really get lambasted, you know, by the Courier Journal and other outlet, other press 01:54:00outlets. And they didn't want that either. So that was another part of the equation, I think.

KASARABADA: Right. The Journal wrote several front page stories and also editorials strongly supporting the--

SHEPHERD: --right, that was a very significant part of why this consent decree, I think, worked as well as it did.

KASARABADA: And it sounds like Judge Johnson himself was pretty media savvy. He knew when to use reporters--

SHEPHERD: Oh, yeah. I think that was just innate. Yeah, that--I think he just had a natural affinity for newspaper reporters and, you know, you know, and he had, you know, he had grown up in rural Kentucky back in the days when the Courier Journal was a great unifying force. You know, throughout the state.

KASARABADA: Um-hm.

SHEPHERD: And so, you know, the Bingham newspapers and TV stations were, you 01:55:00know, a dominant force in shaping public debate about issues and stuff. And, and Judge Johnstone, again, you had this great affinity for, you know, not, you know, I don't know that I'd be surprised if he ever met Barry Bingham, junior or senior, but the rank and file reporters loved him, you know, because--and another aspect of that was, you know, most judges and I learned a lot from Judge Johnstone in this respect. Most judges are highly suspicious of newspaper reporters and want to keep them shut out or at arm's length at best.

KASARABADA: Why so?

SHEPHERD: I think because, you know, any public official is a little bit leery and fearful of being portrayed in a bad light in the newspaper, you know, because, you know, when you're, if you're an elected official, you're just 01:56:00always concerned about public perception. And, you know, and newspaper reporters generally are looking for good stories, which often means stories that are embarrassing, you know, to public officials. And so, you know, the natural tendency for public officials, I think, is to be suspicious or hostile to newspaper reporters. And, of course, that's completely counter to Judge Johnstone's nature. His, his nature was, you know, that he, he, he loved everybody, and he wanted to charm everybody. And he was a completely open book, you know, so he would invite reporters to come in and sit and, you know, at pretrial conferences that, you know--

KASARABADA: --really?--

SHEPHERD: --yeah, yeah. I mean, he, he, he was totally open with the press. And of course, it was such a contrast with the other judges or politicians that they 01:57:00just loved, you know, they loved the fact that he was so open with them.

KASARABADA: That is certainly unusual--

SHEPHERD: --yeah, yeah, it really was--

KASARABADA: --to invite them into conferences.

SHEPHERD: Yeah. Yeah, it really was. Yeah, yeah. So it was, it was something that I think, again, it paid great dividends for him in terms of the credibility that he built with the press was a big asset for him in trying to deal with these big, complex cases--

KASARABADA: --um-hm--

SHEPHERD: --where, where he needed to gain the cooperation of the governor and the cabinet secretaries and the legislature. Because I think that, you know, I think he was revered by, you know, I don't mean the, the, the publishers. I mean by the rank and file reporters who just were crazy about him. So.

KASARABADA: Were there any particular reporters that he was close to or had 01:58:00rapport with?

SHEPHERD: Well, I think, honestly, any of them who covered the federal courts and some of those are still around. You know, Debbie Yetter and Andy Wolfson both covered the federal courts when, during the bulk of Judge Johnstone's tenure. And, and, you know, I think that that was also true with, I'm trying to remember who covered the court system for the Paducah Sun. But it was the same thing. You know, he, they would--he was just very open with the media. And that's, you know, that's not the norm.

KASARABADA: Certainly not. Why wouldn't he have known members of the Bingham family though?

SHEPHERD: Well, he might have, but, but he just didn't travel in those circles.

KASARABADA: Yeah.

SHEPHERD: So, you know, he, he may, I wouldn't--you know, he may have met them on public functions or occasions, but he, you know, he wouldn't have, he 01:59:00wouldn't have traveled in the same circles as the Bingham family.

KASARABADA: Um-hm. Is there anything else you want to say about the, either the KCIW case or the women's or the men's prison cases?

SHEPHERD: I think that's a pretty good overview. I can't think of anything else that really stands out about, about those cases. But they, they were kind of a dom--dominant cases during my tenure there, that they were where a lot of the time and effort went, because there was a lot happening on both of those cases when I was there.

KASARABADA: What would you spend most of your time doing on those cases? Research--I think you said you wrote, you wrote a draft of the opinion in Canterino.

SHEPHERD: Yeah, I would, I would do a lot of that. You know, on the, I was there for the trial of the Kassulke case.

KASARABADA: Um-hm.

SHEPHERD: So, you know, I took all the notes and went over with the judge and got his, you know, I did a lot of the drafting on those opinions and, you know, the, I can't--there were a couple of things in the, in the Thompson and Kendrick cases that, that I worked on along the lines that you had alluded to about the, the conduct of the prison guards. I think he did an opinion while I worked there that I helped with on that. But a lot of it was just kind of routine case management stuff of, of dealing with various issues and disputes that would arise over the interpretation of the consent decree. So it was, it consumed a lot of the time of the court.

KASARABADA: Relative to the rest of the caseload

SHEPHERD: Yes. Yeah. They, they were definitely the biggest and most time consuming cases that we had.

KASARABADA: Is there anything that stands out to you about the writing of that opinion? Any of the--any of them?

SHEPHERD: Well, you know, again, you know, he, he, he wanted to set a certain tone, you know, I think that conveyed the things he felt strongly about from the evidence in those cases. And I think one of those was that he felt like, that he was just applying tried-and-true principles to, you know, a new environment and that he didn't want to be viewed as somebody who was out there on the fringes innovating, you know, with new legal concepts, because to him it was just a matter of applying well-settled law to maybe a new fact situation. But he, he 02:02:00didn't think that it was a pioneering decision.

KASARABADA: Hm. Well, that kind of leads into my next question. I want to take a step back and kind of look at the big picture of how the process happened. So there are all these questions about the judiciary as a policymaking body and should it be and can it be? And I'm wondering how you saw the court's role in that clerkship while you were doing--working on the prison cases?

SHEPHERD: Um-hm.

KASARABADA: You know, I, I noted that particularly the judge was very sensitive--he didn't he wanted the consent decree so that it would not be so that the courts would not be in his control. He didn't want that.

SHEPHERD: Yeah. Right. He didn't want to become a big kind of super warden.

KASARABADA: Right.

SHEPHERD: Right.

KASARABADA: So I guess what conclusions could you draw from watching those cases about how this works out, how to draw the line between, you know, managing what 02:03:00the prison system did versus trying to make sure that constitutional rights are enforced?

SHEPHERD: Well, you know, that's a, that's a very difficult line to draw, the, you know, I mean, I think Judge Johnstone's view was that he wanted to ensure that the appropriate structure was in place. And so he wanted to focus on kind of the big picture structural issues for how the prison system was organized. And I think those fell into categories of, you know, like number one, overcrowding.

KASARABADA: Um-hm.

SHEPHERD: Do you have the physical capacity to house the number of inmates that you've got? That was, and that had big financial implications because that meant basically that the state needed to build more prisons, have more space available 02:04:00so that, you know, physical capacity was one. And then I think other, the other were kind of the structure for how you deal with discipline problems within the system. So do you, you know, so that there is some check on just arbitrary discipline that would create the conditions of, you know, of--well, really, some kind of checks and balances on the arbitrary exercise of disciplinary authority. And part of that is also ensuring that there's access to the court system so that when, when there is arbitrary action, it would be subject to some kind of judicial review.

KASARABADA: Um-hm.

SHEPHERD: And then the other aspect, which I think he was very sensitive to was, 02:05:00you know, the, the idea that, you know, it's, it's a tough job to work in a prison, you know? And traditionally and even now, it was worse, I think, at the time of the consent decree. But prison guards are horribly paid. You know, they're very, very--they have a terrible job, a demanding job, and they have very low pay. So it's hard to attract, you know, really good employees to work in that environment. And too often, you know, it, it attracts people who have some kind of, you know, desire to, to, to have some power that they can lord over somebody and that that creates a lot of those management problems inside the prison. So I think he wanted to be sure that, you know, the prison guards 02:06:00got paid more appropriately so they could attract a better quality of employee and so that they could have a more professional environment in terms of personnel management. So those were the kind of categories that I think he wanted to focus on. You know, I will say, you know, one of the reasons I think he was successful and the prison cases were successful to the degree they were, was that I do think that the, you know, the, the governor, the, the officials and the Corrections Cabinet and even the legislature were all very responsible in trying to address real problems. One thing I know that did, it kind of got Judge Johnstone's goat a little bit was at the local level, you know, his dear friend who's now on the Kentucky Supreme Court, Bill Cunningham. You know, Bill 02:07:00was the commonwealth attorney in Lyon County when the prison case was being litigated and consent decree. And there were a lot of people locally who didn't like it, you know, who thought that a federal judge was, you know, messing in their business and shouldn't be telling the people at the prison how to run the prison. And, you know, so Bill Cunningham had a tendency to cater to those people a little bit too much in Judge Johnstone's view. And it would irritate him when, you know, you wouldn't see any evidence of this unless you go back and look at the local newspapers in Lyon County or Caldwell County.

KASARABADA: Hm.

SHEPHERD: But the Judge Johnstone would get feedback, you know, and there would be stories in these local papers, you know, that, that Bill Cunningham, the commonwealth attorney, would take the grand jury to tour the prison. And then they would issue a report, you know, saying that the federal judge, federal 02:08:00court should keep their nose out of the administration at the prison, that, that really irritated him, but he took it in stride (both laugh). But he also you know, that's another thing. He lived in Princeton. So, I mean, a lot of prison guards and prison employees were his neighbors and his friends. And the local public officials, you know, the sheriff and the county judge that, you know, they would meet him for coffee at the Burger Queen every day. And they would, you know, he'd go to Herbie's Barber Shop in Princeton. And so people in the community sometimes would tease him or rib him about that, you know, but in a good natured way, where I, and I think, again, the, you know, the people who knew what was going on all encouraged him and gave him words of support, even 02:09:00though there are always a few who were, who didn't know what was going on, who would be critical. So--

KASARABADA: --um-hm--

SHEPHERD: --but that was part of his understanding of the problem was, I think, the fact that he, he lived in the community there within just a few miles of the Eddyville prison. And he'd lived there all his life. So he, he knew what was going on inside that prison pretty much.

KASARABADA: I think that's interesting. If so, if he had, you know, chosen to spend most of his time in Louisville or if he was one of the--

SHEPHERD: --yeah--

KASARABADA: --I think one of the first--Thompson that had initially been assigned to Judge Thomas Ballantine. So--

SHEPHERD: --yeah, and so was the women's case was initially assigned to Judge Ballantine.

KASARABADA: Oh, really? Okay. And so, you know, you could imagine a judge from Louisville who's making these decisions. And it might not--it might have been 02:10:00received differently.

SHEPHERD: Yeah. No, I think that's true. I think there's a lot of truth to that.

KASARABADA: Hm. So prison policy debates were at a particular point in the late seventies, early eighties, and it was really about inhumane conditions and that's where a lot of the public law litigation was. And I think today we're at a different point where we're talking about incarceration in general, the--

SHEPHERD: --um-hm, the right to mass incarceration.

KASARABADA: Right. Why people are incarcerated. Who is--

SHEPHERD: --yeah, if you look at the numbers, it was it's, it's unbelievable. You know, we're talking about the, the Thompson and Kendrick cases. You know, the number of inmates in the entire system in Kentucky was, you know, I don't know. But I would say probably twenty-five hundred or three thousand people.

KASARABADA: Um-hm.

SHEPHERD: And it's 25,000 now. I mean, it's incredible the way the system has mushroomed.

KASARABADA: And part of that, you know, this litigation happened in the early eighties and then the consent decree was finally done by early nineties, ninety-two, ninety-three, something like that. But the nineties were also the beginning of, you know, new legislation that was coming at the state and federal level--

SHEPHERD: --um-hm, yep--

KASARABADA: --increasing criminal penalties and mandatory minimums and sentencing guidelines, all kinds of things.

SHEPHERD: Right.

KASARABADA: So that contributed to a different element to the overcrowding issue.

SHEPHERD: Absolutely, right. Right.

KASARABADA: So I'm, you know, I'm wondering what your thoughts are now as a judge about, the conditions in prisons and how prisoners are treated versus what you saw back then as a law clerk.

SHEPHERD: Yeah, well, you know, I mean, I think it's the biggest, one of the biggest challenges facing state government is to get, is to revamp the way we 02:12:00view the corrections system, because, you know, I think that the, the traditional model of housing inmates and isolating them and, you know, more or less warehousing inmates is, you know, it is just creating more problems, it's--our criminal justice system is, is, has careened out of control and if you look at my criminal docket and you look at criminal dockets all over this state, you'll find that probably ninety percent of our criminal dockets are substance abuse cases directly or indirectly. If it's not drug possession and drug trafficking, it's people who are committing property crimes to get money, to buy 02:13:00drugs or to feed their habit. So I would say fully ninety percent of our criminal docket now is substance abuse related. So what do you do? You know, when you incarcerate people who are addicts, they're still addicts when they come out. And so, you know, they're going to continue to feed this cycle. And there's no hope of, you know, of reversing that trend until we start viewing this problem as a public health problem and not just a criminal justice problem. You know, we've essentially got now--and it's been enormously exacerbated by the outrageous and irresponsible prescribing habits of a few, you know, 02:14:00irresponsible doctors and medical professionals and the pharmaceutical industry that has exploited this, this kind of false model of pain management to enrich themselves so that we now have an opioid epidemic that's completely out of control. And the only way we deal with it now is to throw people into a criminal justice system that is totally ill-equipped to deal with the underlying substance abuse problem. So, you know, in my view, we, we need to completely revamp the, the criminal justice system and our options and our incarceration philosophy away from incarceration and in, and into substance abuse treatment, 02:15:00mental health treatment and vocational rehabilitation. And I think in the long run, it, if we can transition into that new, a new model that's based on that, it would, it would be more effective at salvaging lives. And it would also, frankly, I think, be less expensive because, you know, they incarcerate--we spend, you know, twenty, twenty-five, thirty thousand dollars a year incarcerating people. If we could devote those resources to rehabilitation, vocational education and, you know, and getting, putting a lot more money into early childhood opportunities and education to keep, you know, young people from 02:16:00going into that pipeline that we could, we could make a lot of progress, but it is a, um, a, you can't turn a battleship on a dime, and this battleship of corrections of the prison system is very resistant to change. So I'm not quite sure how you--I don't think you can do that unless all the stars are aligned in terms of having a governor and a legislature and a bureaucracy and a press and a, and empowered communities at the local level who really are all working toward that end.

KASARABADA: Um-hm.

SHEPHERD: And of course, I don't think we have hardly any of that right now, although there are some encouraging signs. You know, I mean, I do think that there is a, you know, the business community, the Chamber of Commerce, even, you know, rightwing think tanks like the Koch brothers are seeing that it's, we're 02:17:00pouring money down a black hole of incarceration so that I think there may be some window of opportunity to, to redo the model. But it's a major, major challenge, I think. And I think, you know, again, I think there's a lot to be learned if you just look--what Judge Johnstone did in the prison system as it existed forty years ago. You know, it was a tenth the size of what it is today--

KASARABADA: --um-hm--

SHEPHERD: --but it's a, I think, it provides a lot of good lessons, and there's a good model for what we ought to be focusing on now. But it's a model that also shows it, it will not--it can't work, unless you've got a state government leadership from the governor on down that is supportive. You got to have a bureaucracy that's receptive to change. You've got to have a legislature that's 02:18:00willing to appropriate money. You know, you've got to have a press that will focus public attention on the problem. And, you know, so we don't have many of those elements right now, but I think that those are the elements that we, you know, that, that could still work. I mean, I think that model could work on a much bigger scale if, if we had the right leadership.

KASARABADA: Um-hm. There's also a strain of thought that by, you know, you create a concept of lawful prisons, you create these prisons that meet the standard and now they're okay. That somehow that makes it, sort of paves the way for harsher sentencing and criminal policies. What are your thoughts on that?

SHEPHERD: Well, you know, I don't know that that's, you--that's an interesting concept. I mean, I don't think we've ever really gotten to that point of a humane prison. You know, and I think what happened after the consent decree was 02:19:00fully implemented, you know, we had this explosion of incarcerate--mass incarceration because of the drug laws and the drug epidemic and the PFO and the harsher sentences that were, you know, in great vogue in the eighties and nineties so that, you know, the original, the persistent felony offender offense only applied to a very discrete group of offenses. Now it applies to everything. And, you know, and as a result of that, you don't have very many criminal trials anymore, because with such a large segment of the, of the criminal population, they have a prior felony or two prior felonies for drug offenses. That ratchets up the penalties to a point where, you know, you can't really risk going to 02:20:00trial. So, you know, those sentencing considerations need to be looked at, too.

KASARABADA: Um-hm.

SHEPHERD: But, yeah, I don't know if that's, if the--I don't think we ever really reached a point where we would say that we had a humane prison system and that that would justify, you know, the idea of incarceration from a moral or political standpoint.

KASARABADA: Um-hm.

SHEPHERD: But I think we just need to get away from that. There are some people who just need to be incarcerated who are dangerous people. But I think most people we're incarcerating now are, are addicted people. And, you know, we've got to figure out a better way to deal with the addicted population.

KASARABADA: As a public health issue, right.

SHEPHERD: Yeah, I think, honestly, the only model that is, got any possibility of succeeding is dealing with it more as a public health, health issue.

KASARABADA: I'm going to start wrapping up now--

SHEPHERD: --okay, sure--

KASARABADA: --I've taken enough of your time. Are there any other cases from your clerkship that stand out? I know you said these were--really took most of your attention.

SHEPHERD: Yeah, oh gosh. You know, I--you know, I was thinking, the thing I should've pulled out, I kept, I kept a file of cases that I worked on. And I meant to look at it before you came and I didn't. But, gosh. I'm sure that there are some that probably are, you know, worthy of mention, but I have a hard time pulling those out of my memory banks right now.

KASARABADA: That's all right. What's a memory from your clerkship that stayed with you?

SHEPHERD: Well, I mean, I think the primary memory is just of the, of the 02:22:00persona of Judge Johnstone. You know, it's such a, you know, larger than life figure who, who was, had this great warmth and great, you know, great ability to connect with people. And you know, and great, you know, great deep sense of humanity. He was just a very compelling figure in, in all those regards. One, one story I should share, I guess. You know, this is, this is for, for the Heyburn project. I will share the story--and this is, I think, it's accurate that maybe there may be apocryphal aspects to it. But since this is for the project about the federal judiciary in Kentucky, I think I should recount the 02:23:00story that I was told by Judge Johnstone about his appointment. Which was very amusing to me and very illustrative of some of the things we've talked about here. You know, he was, when he was appointed it was for a vacancy. I guess it was the first vacancy under President Carter.

KASARABADA: Um-hm.

SHEPHERD: And there had been a lot of controversy at the end of the Nixon-Ford administration. There was a vacancy that, there was, that President Ford, I think, had appointed Judge Richard Revell, who's a circuit judge in Louisville, who was highly respected. And I think Senator Ford--Judge Revelle was a Republican, although not a partisan one, but he was highly thought of. But for whatever reason, the Democratic senators who were Ford and Huddleston didn't 02:24:00support Judge Revell's nomination. And so it died, and he didn't get confirmed. And there was a lot of criticism of the senators for that. And they, their response was, well, we'll, we'll form a merit selection panel and will commit that anybody whose, whose name is recommended by the merit selection panel, we won't object to and that they will submit three names to the White House. And whoever the president picks, we will support. So that was their way of diffusing that. So they, this was a, you know, kind of a blue ribbon panel of leading lawyers and citizens. And so Judge Johnstone's nomination was the first one that went through that process. So it was the first nomination in the Carter administration, so, he, he was one of the three that came out of the merit 02:25:00selection commission. The other, I think one of the other ones, I think Judge Revelle was, his name was submitted again. And Judge Ballantine, who is also highly thought of and a very good judge, and so the, the story as it was related to me was that the Louisville social and political and legal establishment all loved Judge Ballantine. And so they were really lobbying very hard to get Judge Ballantine's name submitted by the White House. And the senators had basically opted--they said they're not going to get involved. So, so these, the kind of elite of Louisville decided that they would support Judge Ballantine by cultivating the attorney general, Griffin Bell. And so they invited Griffin Bell 02:26:00down to the Kentucky Derby. They wined him and dined him. And everybody everywhere he turned, everybody said Judge Ballantine is the man. You know, so Griffin Bell goes back after the Kentucky Derby, all pumped up about Judge Ballantine. And, of course, Judge Johnstone's, was aware of what was going on and he was, you know, kind of outmaneuvered. So he then decided to try to trump that. And so he, using his, his friendships in western Kentucky that the pitch for Judge Johnstone was, you know, that all the judges were from Louisville. And no--there weren't any judges who were from western Kentucky. And, you know, the Paducah division of the federal court was overlooked because nobody wants to go down there and they deserved a judge, you know, who would pay attention to the 02:27:00western Kentucky docket, which was a very valid consideration, but not very powerful politically, except Judge Johnstone figured out that in Jimmy Carter's White House, there was a, there was the guy who was in charge of congressional relations was named Frank Moore. I think Frank Moore. And his, Judge Johnstone's longtime friend and client, Smith Broadbent, who was kind of the kingpin of Democratic politics in western Kentucky. He was very close to Carter--this guy in Carter's White House. So they basically went up and western Kentucky was at that point still very solidly Democratic and very critical to, you know, it was very critical to Carter winning the state. And so the idea that, you know, you've never had a judge from western Kentucky was, had a certain political 02:28:00appeal. So, so apparently, as Judge Johnstone described it, they had Smith Broadbent and Dale Seitz, who was from Henderson, Kentucky. Dale Seitz was a, you know, great guy who's still living. And he could probably verify this. Dale Seitz was a young banker in Henderson who was Carter's campaign manager. So Dale Seitz and Smith Broadbent contacted their friend in the Carter White House and explained the political facts of life to him about this. And so, and as Judge Johnstone put it, so the name that went from the Justice Department to the White House was Tom Ballantine and the name that went from the White House to the Senate was Ed Johnstone (Shepherd laughs). And I think that's a true story. And as it happened just a few weeks later, another judge died and they 02:29:00create--another vacancy was created. And Judge Ballantine got appointed within weeks of when Judge Johnstone did. But as a result of that, Judge Johnstone had a few weeks of seniority over Judge Ballantine. And there was even quite a bit of maneuvering about the issuance of their commissions. I think they got, they got confirmed by the Senate within days of each other. And Judge Johnstone, his commission as federal judge was issued--there was a feeling that they were hold--the Justice Department was holding it up so Judge Ballantine would get seniority. But that got, that got waylaid I think. So, but, you know, and then later I looked in Griffin Bell's memoirs, the attorney general, and he didn't mention this incident by name. He didn't specifically mention it. But he did, he 02:30:00did put in his memoirs that he resigned as attorney general very early in the Carter administration. And he said that one of the main reasons he resigned was that he learned that he couldn't, that the White House didn't accept his recommendations for who was going to be appointed to a federal judgeships (both laugh). So, there's a little corroborating evidence for that.

KASARABADA: So Kentucky may have brought down, may have brought down the attorney general--

SHEPHERD: --brought down the attorney general, yeah.

KASARABADA: The untold story now told.

SHEPHERD: Yeah, but the, there was a lot of maneuvering. And now I would say it is also illustrative of the fact that Judge Johnstone, you know, tried to cultivate this image as the kind of unsophisticated country lawyer, but he knew how things worked behind the scenes and he maneuvered with the best of them to, you know, to, to get what he wanted to achieve his goals. And I think that's 02:31:00probably exactly what happened on that appointment. So.

KASARABADA: Why didn't he go into politics himself?

SHEPHERD: You know that's a good question, because he would have been a phenomenally successful--but I think one of the reasons he didn't was he, he, he, he wanted everybody to love him. You know, I mean, I think the idea that, you know, he did, or, he ran for circuit judge one time and was unopposed. But I think I was told he ran like, you know, he was ten votes behind. But I think it would have been psychologically difficult for him to think that anybody would vote against him.

KASARABADA: Hm.

SHEPHERD: You know, he would want to get every vote. So I think that maybe it was part of it. And, and, you know, he--yeah, I think the idea of--he wanted to cultivate everybody as his friend. So having to run against somebody would have been difficult for him, I think. But yeah, I often wondered because I think he 02:32:00in some ways, he could have been almost, you know, a Lyndon Johnson-like figure if he had had the drive to go into electoral politics. But he, he really did not have that at all. So.

KASARABADA: He certainly had this strategic political instinct.

SHEPHERD: Yeah. There's no doubt about that. He was very savvy about the way things worked in politics. So.

KASARABADA: You called him the greatest trial judge of the twentieth century in Kentucky.

SHEPHERD: Yeah, I think that's true. You know, I mean, there have been a lot of great trial judges, but, but I do think that he, well, you know, he was a great trial lawyer--

KASARABADA: --um-hm--

SHEPHERD: --you know, and there's all kinds of stories about his, his exploits in the courtroom. But I think that that also made him a great trial judge because he just had a great, great understanding of human nature and, and how to, how to be a persuasive advocate. But I think that also 02:33:00helped him to, you know, to, to be a very fair trial judge and to, to, you know, to, to, to make sure that both sides of a case got a fair trial and, and that neither side could exploit the weaknesses of the other side, you know, to create an unfair situation. So I think he, he was really remarkably good trial judge because he had such a great understanding of human nature.

KASARABADA: Well, I think that's all.

SHEPHERD: Okay. We covered a lot of territory--

KASARABADA: --we did. Is there anything else you want to say?

SHEPHERD: I can't think of anything. If I get, if I get a great memory, I'll 02:34:00call you.

KASARABADA: I think that covers it. Judge Shepherd, thank you very much.

SHEPHERD: Thank you so much.