Monday August 19, 2013

Interview with Judge Gerald Nichol

Gerry was born in Escanaba, Michigan in 1935 with a twin sister, he was the second youngest of eight siblings; he had a younger sibling who died at the age of two.   His mother was a care taker of the kids and cleaned homes while his father was a sailor on the ore boats on the Great Lakes.  They would go from Duluth all the way through the Great Lakes, drop off the ore and pick up coal and bring it back.  His father ended up being a captain of an ore boat by the end of his career.  Gerry graduated from Escanaba High School in 1953 and went to the University of Michigan, graduating in economics in 1957.  After graduating from college, he enlisted in the Army and was drafted for the Korean War for two years in the Si8gnal Corps; eighteen months was spent at the White House stationed in the east wing as a cryptographer.  He was low on the pecking order and didn’t get to take many trips with President Eisenhower during his tenure; however he took one trip with the President to Albany, Georgia. After the military, he was single and living in Washington DC, worked at Allegany Airlines at National Airport during the day and attended night law school at George Washington University. He got exhausted and was worn out and decided to move back home to Escanaba.  In 1960-61 he worked in a paper mill.  During this time he met his future wife, Kathy, who was in Med School.  [Apparently had an aunt who was related to both of them somehow, she was a nurse and her husband had died and they met through her] 

At the time they got married, Kathy was attending UW-Madison Medical School and Gerry transferred from George Washington Law School to UW-Madison Law School and finished his JD in December of 1962.  During law school he clerked for Joe Melli and chaired the Madison Legal Aid Society, located at that time on Atwood Avenue.  After graduating he worked for Joe Melli’s law firm through 1968.  Thereafter he shared space with Attorney Mike Wingard and Attorney Bob Aagard. 

Jim Boll Sr. was the District Attorney and the Republican Party of Dane County recruited Gerry to run as a republican candidate for DA in 1971.  He won the race and was DA from 1971-1973.

During this time he had four rather large matters.  First was the extradition of Carlton Armstrong from Canada.  The alleged Sterling Hall Bomber, who later became convicted of bombing Sterling Hall in 1969, fled to Canada, and Gerry spent a great deal of his time as DA trying to get him extradited to the US.  He worked with Attorney General Robert Warren, who later became governor, on this issue.  The extradition was finally complete after he left the DA’s office.  At the time this was quite controversial because of the anti-war movement and the death of Professor Robert Fasinak. At this time the Sterling Hall bombing was the largest in the US up until the Oklahoma City bombing several decades later.  The defense by Armstrong in Canada was that it was a political act and not a criminal act.  Further, the death of the professor was absolutely unintended and he was there merely at an untimely coincidence.  This decision came down and he was extradited after Gerry left the DA’s office and the decision was based on international law.   

The second main issue that Gerry worked on was regarding abortion.  At this time a doctor by the name of Al Kennan approached Gerry saying he was going to open an abortion clinic in Madison.  Gerry took the position that until and unless there was an actual case he was not going to prosecute Dr. Kennan on this.  [At this time in History the Supreme Court decision of Roe v. Wade had not yet been decided]  Dr. Kennan opened his abortion clinic in Madison.  Gerry believed he had to enforce the laws against abortion, even though he may not have agreed with them personally.  Dr. Kennan told him that he did not want to make lawyers rich and fight over this whole issue.  Eventually a Minneapolis couple brought a 13-14 year old girl down to Madison to have an abortion, her parents were not aware that she became pregnant and they did not want her to have the child.  It was reputed that she had an abortion at Dr. Kennan’s clinic, which was the Midwest Medical Center on Regent and Mills Street in Madison.  Because Gerry did not think that the girl would testify, he executed a search warrant and searched the clinic for any evidence that might exist on this matter.  He then prosecuted Dr. Kennan for [aggravated assault].  At that time Dr. Kennan was represented by Attorney Pappas, but decided he needed a more high power attorney so he hired Attorney Dick Cates, who immediately went to Federal District court and Judge James Doyle, Sr. and got an injunction against shutting down the abortion clinic.  This case went all the way to the US Supreme Court and ultimately was a companion case to Roe v. Wade.  Gerry said that he was thrilled that his case was not the primary case that was decided, or else the nationally renowned case would have been Kennan v. Nichol and not Roe v. Wade. 

The third big issue was the prosecution of a prostitution ring where young women were being brought to Madison from Hennepin County, Minnesota.  He successfully broke this up.

The forth issue involved breaking up a bid rigging ring in the construction industry.  Attorney General Bob Warren was of great help in this matter. 

Another thing Gerry is proud of during his tenure as DA is that he set up what became known as the first offender program, or the deferred prosecution program.  This program essentially gives those a chance to wipe their records when they are arrested for a non-violent crime the first time.  This was one of the first programs in the country of that nature and still continues to this day.  He thought this was really important because many people who were not bad people would commit a non-violent crime and not be repeat offenders. 

He lost re-election to Humphrey Lynch in 1973, primarily because the students voted all democratic.  After leaving the DA’s office he was the President of the Dane County Bar Association.  He pushed for mediation as a necessary way to resolve cases and reduce the expense of litigation.  He did this along with Attorney Steward Stroud, Attorney Morris Slabny, Attorney Jack DeWitt and Attorney Bud Burman.  Attorney Slabny remained head of the Dane County mediation program for many years. 

He resumed his private practice from 1973-78 with Attorneys Wingard, Aagard and Wayne Wilson.  In 1978 he joined Lee Johnson Kilkelly to form the Lee Johnson Kilkelly and Nichol Firm, where he continued until 1988 when he became a judge.  I first met Gerry in 1975 when my roommate, Mark Burish, was clerking for Gerry’s partner Bob Agard.  My wife, Susan, was hired as a law clerk for Gerry in the spring of 1976. 

Gerry also said he was very proud that he worked in the Madison Civil Aid Society, which provided no cost legal work for civil matters for the less fortunate in Dane County.  During the President Johnson Administration, a pro-bono civil rights program was created, and Gerry was chair of that during that time.  Various attorneys were working with him during this time, including Jack Van Meter, who was succeeded by Attorney P. Charles Jones, who later became a judge.  Moria Krieger and Rick Phelps also worked in the civil rights program. 

During his private practice years he took federal court appointments for criminal cases because of his experience as DA.  He represented several interesting cases, including one I personally remember when my wife Susan worked with him.  His client was John Osheran.  Mr. Osheran lived in the Eau Claire area and was charged with 50 plus counts of securities fraud for having sold securities for his business.  Mr. Osheran was a Christian man who went around the Eau Claire area proselytizing and meeting people and as part of this they invested in his company.  His company was to build fiberglass a-frame buildings.  The a-frames were fundamentally flawed and once they collapsed at a showing at the Iowa Farm Days, several “investors” sued and went to the FBI to complain about his business and how he raised money from them.  The case was a two week long trial before Judge James Doyle, Sr., who was a very well respected and well known judge.  The prosecuting attorney was Grant Johnson for the US Attorney’s Office.  After the prosecution brought its case, Gerry moved to dismiss the case and Judge Doyle, Sr. dismissed 23 counts of the indictment.  The Jury then acquitted Mr. Osheran of each and every account of securities fraud.  This was one of the proudest moments of Gerry’s career as an attorney.  He said that afterwards the FBI agents who he came to know very well in this case, came to him and asked him to go out with him for a beer, so he did.  The agents said this case was devastating to them and that they thought Mr. Osheran was clearly guilty of securities fraud and that they were disappointed but thought Gerry did a fantastic job in the case.

As it happens, Gerry, who is a very cordial and amiable man, got to know the FBI agents very well.  He then got more federal appointments including bank robbery cases, which he described a couple as quite humorous and indicated that these must have been some of the dumbest bank robbers ever.  These cases occurred in the Eau Claire area, one of which the bank robbers were casing a small town bank dressed in all black clothing and hoods over their faces and something scared them away and they never did rob the bank but they were charged with attempted robbery.  Gerry was very proud of these relationships he had with the FBI. 

Another case in his private practice that proved to be quite interesting was one of the first wife battering cases.  He represented a woman by the name of Sally Pagel.  Sally and her husband owned a bar.  She was a classic battered wife, who was physically abused over many years and in this particular instance after her husband came home from a two week vacation he promised her a night on the town.  They went out for dinner and he spent the whole time talking to his friends and not with her.  The victim in this case, the husband and abuser, was a big guy over 300 pounds.  This particular evening he slapped her and she left and went home and locked the door and when he came up to the bedroom she claimed that the shotgun she had laying in her bed accidently went off and killed him.  She was charged with manslaughter and was convicted.  She said afterwards she was disappointed but not upset with Attorney Nichol because after all she did take a life.  It was a very tough case.   

Another case in his private practice, which I also remember because my wife was involved, was a gentleman by the name of John Spanten who killed his wife.  The Judge later ordered that the grandparents who were then taking care of their young child take the child to the Waupun Correctional Institute to visit the father once a month.  The grandparents did not want to do this, moreover they wanted to terminate the parental rights of Mr. Spanten.   This case was brought before judge Spherowing? in Rock County Court.  It was also interesting because the guardian ad litem for the child was Attorney Leon Feingold, the father of future US Senator Russ Feingold.  The court ruled that the child had to be brought to the prison on a routine basis and that the parental rights of the father were not terminated. 

Sometime in 1987, Gerry suffered a heart attack that required surgery and his doctors recommended he slow down a bit.  He became a Judge in 1988 and served through 2004.  Some of the highlights of his career as judge include his push for mediations, which he did many after hours to try and show other judges why mediation was a smart thing to do in terms of settling cases and as a way to make matters easier for all parties involved. 

He is also proud of his involvement in the Juvenile Court where he started a program of 6-7 lawyers who were specially trained as guardians ad litem to properly represent children in court.  He felt that the average lawyer who was being asked to represent a child didn’t know what they were doing and he was proud of this program to help children. 

He also created the Casa Program, the first in Wisconsin, and one of the first in the country.  This program consisted of individuals who were trained to monitor the juveniles while at in home visits to ensure that they were properly taken care of and that they were not being abused.

He was also proud of a case of first impression in Wisconsin where a man by the name of Gary Homberg was convicted of the murder of his wife without the body ever being discovered.  It took several years to prosecute Mr. Homberg, but finally the DA brought the case against him and Judge Nichol oversaw it.    

After he left judicial office in 2004, he has been involved in several areas.  He continues to have a mediation practice that focuses primarily on medical malpractice cases.  In these cases the law requires that they go to mediation before they go to civil court.  The panel is made up of citizen, a medical expert, and a lawyer or a judge.  There are about 200 such filings a year and only 5-7 go to a jury trial.  Often times they are not settled during mediation, but are settled after mediation because of the facts and issues that are presented.  Usually three experts review the records and make a recommendation about what the outcome should be and often times there is a successful resolution without having it go through a costly and time consuming trial. 

Gerry also volunteers for Safe Harbor and is a board member.  Safe Harbor is a child advocacy center that removes abused children from their homes and takes care of them while the matter is being processed.  One of the things he is very proud of in this case is that during a child’s interview a social worker, the DA, and often the law enforcement officer are watching the interview through a one way glass.  These interviews are taped so that a child’s testimony can be used in court without the child having to actually go through the scary process of testifying in court with the parents or abuser present.  After this is done they also perform physical and mental exams of the child. 

He has also been a member of the Government Accountability Board which was created under recent law to oversee elections, ethical complaints against public officials, and campaign finance laws.  He is proud of the fact that they don’t micro manage these areas and that they are managed by Attorney Kevin Kennedy, who they picked to be the executive of the board.  The board had been very active lately primarily with of the recall elections, because each of the signatures had to be carefully reviewed.