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Much Maligned Magistrate

On the eve of his resignation Judge Duff answers his accusers.



By Bonnie McGrath

Friday night at midnight at the Dirksen Federal Building, a guard sits quietly at his post in the fluorescent-lit, cavernous courthouse lobby. He's reading a front-page newspaper story about the sudden departure of U.S. district court judge Brian Barnett Duff. Suddenly someone rattles the door, trying to get in. It's Duff, a white-bearded Irishman with a big grin. He's come to retrieve some things he's left at the guard's desk for safekeeping. The guard goes to the door and lets him in.

"I wish there was something I could say, judge." The guard looks down at the paper. "I admire your picture here. It's a very good picture. I wish they'd jump and you'd stay."

The judge picks up two briefcases and heads toward the elevator to the basement parking garage for the ride home to Glenview. "Wasn't that nice?" he says as he pushes the down button. The elevator opens. Duff walks in. As the door closes, Duff's face has a look of defiance, of pride, of gratitude. For the moment the pressure is off. After 20 years on the bench.

That morning Duff began his day as usual. He got into the bathtub and read the front page of the Tribune while he soaked. Under a picture of Jeff Maier--the boy from New Jersey who reeled in the Yankee home run--there was the headline "Judge steps down after decade of controversy" and the subhead "Duff was known for erratic actions."

The story implied that he resigned because of a Justice Department complaint that he was biased against the government--possibly prompted by the government's displeasure with a long delay (and a gag order) in the narcotics conspiracy trial of jailed Gangster Disciples leader Larry Hoover. But the judge didn't remember the government ever objecting to the delay on the record.

It mentioned a case between the ACLU and the state of Illinois dealing with the state's treatment of the mentally ill, a case that was taken away from Duff when the appeals court found that he had held improper meetings with ACLU witnesses.

Disgusted, Duff turned to the back-page jump, where there was a reference to a recent Duff decision that had been overruled on appeal. He'd removed three lawyers from the city's ward remap case, and the higher court ordered their reinstatement. Next the story rehashed some anecdotes about words Duff had used on the bench that were unbecoming to a judge, including "deep doo," "wetback," and, in reference to a flight attendant, "looking mighty fine."

The story also told about the time Duff, when he was a judge in state court, had his own clerk held in custody for contempt after an argument. This was wildly inaccurate, he thought, turning angry. She was never held in custody. He did remember threatening to send her to jail when she refused to come to work on election day because she had to carry her precinct.

The story briefly summarized his political history, highlighting his tenure as a state legislator and his unsuccessful run for secretary of state. In 1985 Senator Charles Percy recommended Duff for a federal judgeship.

The Tribune also included an oft-quoted, several-years-old gossipy characterization of Duff by the Chicago Council of Lawyers: "Judge Duff's outbursts go far beyond the range of irascibility that judges sometimes show towards lawyers. The frequency, unpredictability and severity of the outbursts go beyond the ability of the Council to provide an explanation. Some lawyers report that the only way to avoid Judge Duff's ire is to grovel and constantly flatter him." But he is "extremely hardwork-ing...seems to have at least adequate legal abilities...can be charming and usually is off the bench."

The article also said Duff was "almost maniacal" about the use of his middle name: "But this largely was considered one of the quirks or oddities that come along with a judge and often have little bearing on whether he or she makes the proper ruling."

Most of the material was attributed to nameless sources and gathered from old newspaper clips by a couple of reporters on deadline. Old stories perpetuating new stories, Duff thought.

A short time later at his dining room table, with classical music playing in the background, Duff continued his morning ritual--he read the Sun-Times over breakfast.

The banner headline yelled "Judge to step down," and the article explained that Duff asked to be removed from "active duty" the day before due to "an unexplained medical problem." The article stated that he would, however, rule on the remap case, for which he'd already heard evidence and arguments.

The story quoted "sources" who said the request to leave "may have been less than voluntary" and "sources" who said that "unless he stepped down, the Judicial Council was prepared to take action." Also quoted were "observers" who said Duff, a federal judge with life tenure, "has been sleeping on the bench, has read opinions that had been issued months previously and made unintelligible comments in court." It too referred to reckless language, courtroom outbursts, and the scolding of lawyers for keeping their hands in their pockets, among other things.

Duff finished his Rice Krispies and drove to the courthouse, where he found his phone lines jammed with incoming calls. Messages were piling up. Notes poured in from fellow judges concerned about his health, from lawyers offering support and thanking him for the encouragement he'd given them during their careers, and from many former law clerks extending their help and friendship. Top lawyers such as Ed Foote, Ed Genson, and Rick Halprin--some teary eyed--came through the door of his chambers to say what a wonderful judge he was and how much they'd miss him. Reporters called from all over the country. Duff refused to answer their questions and refused to go out to the bench. "I'm not going out there anymore," he said. "I'm sick." He sat behind closed doors all day.

At 6:30 PM he left for the Union League Club.

The day before Duff signed one last command, postponing the corruption trial of former alderman Anthony Laurino, making it the government's burden to prove that the ailing Laurino was healthy enough to be tried. He then submitted his "retirement" letter to chief judge Marvin Aspen.

That night he made his last social appearance as an active judge. None of the fresh-faced attorneys at the cocktail party at Mare, where Duff was a guest of the Young Lawyers Section of the Chicago Bar Association, knew of the bombshell that would hit the papers the next morning.

Eyes widened and smiles flashed as Duff circulated through the room. Tall, good-looking women were telling him how wonderful it was to meet him, earnest young men from law firms were asking for advice. A woman with a huge smile thanked him for some Notre Dame tickets he'd given her recently that he

couldn't use. One young man, a solo practitioner, asked if he'd speak at an upcoming bar-association luncheon on federal debt-collection law. Duff, generally eager to speak to any group of young lawyers, told him that the federal courts didn't deal much in that area.

Another young woman came over to remind Duff of an upcoming sentencing hearing they were involved in. "I'll be coming in for it soon, judge," she said with a big smile. "No, you won't," said the judge. She looked confused and smiled weakly. Duff changed the subject.

The judge soon became restless. After a couple of hours he headed over to the Hotel Nikko for a beer and a brandy. On the way he stopped at an office building, where a sign stated that the cash machine was closed for the night. He motioned to get the security guard's attention. "Hello, I'm Judge Duff," he told him through a partially opened door. "Could I use the cash machine?" The security guard asked for identification, and Duff showed some sort of ID. "That oughta do it," said the security guard. "OK, come on in. We're only closed to the public--not you."

The judge walked over to the cash machine and retrieved $200. At about 10 PM he asked a cabdriver to take him to Glenview. He was determined to get a good night's sleep.

At 7 PM on Friday Duff is sitting on a small comfortable couch in the second-floor cocktail lounge at the Union League Club, drinking a glass of chardonnay. Following the morning's bad press the Daily Law Bulletin had quoted the "same trash" that afternoon, according to Duff, "right out of the other papers."

A cocktail waitress in a black skirt and white blouse places two imitation crystal bowls in front of the judge. One has dry-roasted peanuts, the other goldfish crackers. Duff takes a big handful of nuts and throws them into his mouth.

"They collected all the old stories they know aren't true--and a lot of new stories they never allowed me to answer," he says raspy voiced, stinking mad. "It's a whole 'package'--and it's getting more press than it deserves. A 'reliable' source told me that [the Sun-Times's] Adrienne Drell was trying to settle an old score. They're not knowledgeable, the stories aren't well written. They've trashed me with garbage." Duff throws back more nuts.

"For instance, when I used the term 'wetback'--and I did do it 11 years ago--it was not a pejorative according to the dictionary at that time. But I should have known better. The defendant in the [immigration] case was Polish and couldn't understand English anyway. He didn't understand what I said. The point is, they don't tell you I was the first judge to apply the Voting Rights Act to the Hispanic community. They don't tell you I have a Hispanic law clerk and I've had African-American law clerks and every other kind of law clerk. And that I was the first judge to pipe in Lexis to a law clerk's home so she could work while taking care of her two children.

"They tried to steal my reputation. And tried to make me an object of scorn, derision, and misrepresentation. I guess I'm starting to sound like Nixon."

Duff laughs--and then asks for more nuts.

Later Duff makes a confession. "I had a heart attack ten years ago. No one knew. I told the other judges for the first time today." His heart condition recently worsened, but he stuck to his routine. "All summer long I went in early and stayed late. I had an incredible calendar. All kinds of cases. I wasn't sleeping on the bench. At times I was distracted, and I'd say, 'Would you mind repeating the question?' I'm not a bumpkin in this business.

"I've known for months that the pressure was getting to me, I've felt pangs in my chest. I was looking forward to the year as a challenge, as a positive year. It got very difficult for me to do my job.

"My kids said, 'Dad, we don't want you to die. We know you want to fight, but we want you here. The doctors say you're in trouble. You have a serious heart problem. You can't continue in your role.'" Duff takes another handful of nuts. "A judge is vulnerable to overzealous advocates," he says.

Then he takes a sip of water. "Everything I ever wanted in life I got--from the Best Student in English Award in eighth grade to a varsity monogram in football to going to the state spelling championships in high school to getting the lead in the class play to going to a national championship in fencing twice.

"I wanted to be a federal judge since I was ten. I got it. In a town where I didn't know anyone when I got here. I got the largest vote in the history of Illinois for a Republican state legislator--in a town where I wasn't born or raised."

Duff leans back on the couch. "I got a scholarship to Notre Dame. I wanted to be a lawyer and I went to DePaul for years at night and I became one.

"When I worked for Bankers Life--before I became a lawyer--I was the first one in the United States to develop [a marketing plan] based on zip codes--when zip codes first started. When I was a legislator I figured a lot of things out. I could smell when there was corruption. I would get up and ask about it. Right in front of everyone. Then the newspapers were marvelous."

Once, Duff explains, he played a trick on some of his toughest legislative opponents. At a Springfield restaurant in full view, he downed one drink after another, having made a deal with the waitress to bring him plain water in martini glasses. His rivals, thinking Duff was boozing it up, took a leisurely dinner instead of brushing up on their arguments. To their surprise Duff showed up at the capitol building fully able to function, and he won the vote. "I had 100 percent attendance in the legislature," he says.

Duff sits forward and leans over the cocktail table. "I've written two short stories." He says one is based in a town similar to his hometown, a tannery town in Massachusetts where he lived with nine siblings. "But before I continue with my short story writing, I've got to finish my thesis."

Forty years ago Duff was offered a grant for postgraduate study in English literature at the University of Notre Dame. In 1992 the grant offer was renewed, and he became a full-time student--taking courses in South Bend while on a "calendar adjustment" program with the court. His nearly completed thesis is about the most popular novel in England in 1794--Things as They Are; or, the Adventures of Caleb Williams by William Godwin--which deals with the history of English tyranny.

Leaning back again on the couch, Duff rattles off a few bills he was proud of introducing but that did not pass the legislature. One dealt with the impact of DNA, cloning, and surrogate parenting, concepts that in 1971 were part of a brave new world. Another was a bill to establish an Illinois Sports Center--it had the approval of George Halas. "It would have set up a commission," Duff says. "Legislators always wanted to set up commissions to get funding for things like offices and secretaries, who were often someone's girlfriend. I didn't know anything about that. They thought I was uppity, and it didn't pass.

"All I ever wanted was to retire as a good public servant. I once read a story about Rodin, the artist, that referred to his father-in-law as a 'minor public official.' What a horrible way to be remembered.

"I know I've raised complicated issues [in court opinions]. And I'm not obsequious. They [the Seventh Circuit Court of Appeals] are supercilious and powerful." He says the Seventh Circuit taught him a lesson by using harsh language against him in high-profile cases, by taking the state mental health case away, and by recently forcing him to rule in certain ways.

All of a sudden, a flirty couple comes through the lounge to see some paintings. Duff points to a dull one, somewhat obscured by a lamp. "Don't miss this one," he cajoles. Then he points them toward a large, magnificent reading room across the hall to see more paintings.

"I've lived such a full life," Duff says as he takes his seat again. "What do you see in my chambers? Pictures of me sailing, fishing, white-water rafting. Pictures of my kids, who are all successful. And my grandkids--who are all great. You see books, you hear classical music. I have season tickets to the DePaul games, all the Notre Dame games, the Cubs games, Goodman Theatre, the symphony, the opera. I've managed Little League for years. Does anybody know that about Brian Duff? Nobody cares.

"No, they talk about my middle name! Is Ilana Diamond Rovner obsessed with 'Diamond'? What about Hillary Rodham Clinton? Is she obsessed with 'Rodham'? And Everett McKinley Dirksen? And Abraham Lincoln Marovitz? They make this stuff up. My minute clerk asked people if they would use it because I wanted to use it. Who gives a damn? Who cares? It's not unusual for Irish to use middle names if they have a genealogical significance. And the name 'Barnett' does. My father wanted me to use it so everyone would know the genealogy of the Chicago Duffs." He stops. There is silence.

"I'm proud of it," he starts up again suddenly. "If I want to use it, why shouldn't I?"

By 10 PM, Duff has moved upstairs to Rendezvous, a pub on the fourth floor that serves food and is dense with cigar smoke. He explains why he was accused of reading cases in court that were months old: "An opinion ended up in the wrong file. The file got handed to me. Am I supposed to remember every case and every lawyer? I read aloud about eight lines and I realized I had already ruled on the case. So I stopped and said so. Does that mean I've become some kind of an idiot?"

A lawyer comes over to the table and says, "Don't pay any attention. You're a great judge. And we're all behind you." When he leaves, Duff says wryly, "He must have won his case."

"They just can't accept that I have a bad heart. I need an operation. They say I'm being forced out. But nobody says I'm not a bright, focused guy. I've been worried for months--the heart pains. I've had stress tests, I've been concerned enough to get to a doctor. I'm not a hypochondriac. My father was a doctor and the last thing I want to be is a hypochondriac."

Judge Duff will keep his salary and his chambers, as the U.S. Constitution and federal statutes provide. But he won't take on any new cases or hand down verdicts or rulings. He won't have litigants.

"I'll miss them like an old boil," says Duff. "I'm ready for new facets in life like reading and writing. Do you think anyone can push me off of anything? I'm sad that I'm sick. My family is sad that I'm sick. I could be dead at any minute. I need an operation in 10 to 20 days. And I'll have it. Then I want to express my creative abilities."

A couple of minutes before midnight Duff walks out of the club and across the street to the Dirksen Building to get his things. "Why should I put up with politically ambitious people who couldn't care less if I live or die?" he asks at the door. Then he tries to get the attention of a guard sitting in the lobby reading a newspaper.

Art accompanying story in printed newspaper (not available in this archive): Photo of Brian Barnett Duff by J.B. Spector.

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