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Trying a case before Judge T.S. Ellis III is not for the fainthearted. Take the hearing last week in the case of American Taliban fighter John Walker Lindh. A ripple of anxiety wafted across the audience as news spread that Judge Ellis had blocked off the entire day for the routine hearing. Impossible, everyone said. At exactly 10 a.m., the clerk called the U.S. District Court for the Eastern District of Virginia courtroom to order, and Ellis opened the proceedings by grumbling about the unwieldy pleadings the lawyers had filed. But within five minutes it was clear he had digested every word in them and done his own research on the issues. Then Ellis began what amounted to a lecture on his reading and application of the rules of evidence. Court security officers roused one dozing reporter as the judge explained how the circuits have interpreted Rule 16(a)(1)(C). The hearing ended at 4:17 p.m. Welcome to the courtroom of Judge Thomas Selby Ellis III. Ellis likes the stage, say veterans of his courtroom. And he likes to demonstrate how smart he is. He’s surely the only federal judge who is also a member of Princeton University’s Advisory Council to the Department of Astro-physical Sciences. His intellectual energy and rigor make him a good choice to oversee complex or unusual cases such as Lindh’s. The same traits, however, make him an extremely challenging judge for prosecutors and defense lawyers alike. For example, most judges leave cross-examination of witnesses to the lawyers. Not Judge Ellis, who frequently questions witnesses himself. It’s a habit that vexes even the most seasoned litigators. “It’s difficult to try a case in front of him,” says one veteran of his courtroom. “He constantly interrupts.” Several defense lawyers say Ellis’ interference has pushed them to ask for mistrials. After they ask, says one, “he backs off, but later he’ll jump right back in.” In one recent murder case, the defense lawyer was cross-examining a witness on inconsistencies in his story. According to the defense lawyer, “Ellis jumped in and said, ‘You’re just saying you made a mistake, right?’ Of course, the witness said, ‘Right.’ It really took away the thunder of what we were trying to do,” says the lawyer, who, like many interviewed for this article, asked not to be identified. Of course, Ellis’ involvement doesn’t often rise to that level. “As long as you follow his rules, he lets you argue your case,” says an Alexandria-based defense lawyer. “He enjoys good lawyering and he wants the lawyers to be lawyers. But first he wants you to answer his questions.” Last week Ellis demonstrated that his questions can be quite startling, even when directed at lawyers. George Harris, a Lindh defense lawyer, argued that Lindh had attended military training camps, but not for the purpose of conspiring to kill Americans. Ellis demanded, “What was he doing out there?” That was a classic Ellis moment, says John Zwerling of Alexandria’s Zwerling & Kemler. “The question came from the advocate side of his brain,” he says. “He caught himself, though. He realized it was inappropriate and said, ‘You don’t have to answer that. It was an inappropriate question.’ Not all judges catch themselves,” Zwerling says. “Not all care.” Occasionally, Ellis will, with a wry smile, deliver a remark that reveals his wit, as well as his fondness for quoting antique authors. But his choices and timing sometimes leave listeners cringing. At a Feb. 13 hearing, lead Lindh attorney James Brosnahan of Morrison & Foerster asked for more time before trial. Ellis responded with a Samuel Johnson quote. When a man knows he is to be hanged in a fortnight, Ellis said, “it will wonderfully concentrate the mind.” His point was that deadlines promote efficiency, but referring to a man on gallows row was a bit awkward, given that 21-year-old Lindh faces life imprisonment if convicted. TOUGH LOVE Ellis, who declined comment for this article, carries with him a reputation as a dyed-in-the-wool conservative. What his reputation belies is a nuanced approach to the law and a compassionate streak. Defense lawyer Frank Salvato notes that when Ellis sentenced Kenneth Richardson on marijuana charges in 1999, the guidelines called for about four years of jail time. The prosecutors recommended a reduction of about a year for Richardson’s cooperation. But Ellis sentenced the young man to only 60 days in prison, followed by 10 months in a half-way house. He had a lot of family support, and Ellis considered that, Salvato says. Other lawyers who have tried criminal cases before Ellis say that a defendant’s character and sense of remorse seem to matter a great deal to the judge. Likewise, they say, he can be hard on a recalcitrant defendant who appears not to take responsibility for his actions. Convicted spy Earl Pitts cooperated with authorities fully following his arrest. And lead prosecutor Randy Bellows had asked that Pitts receive a sentence of 24 years. But Ellis was unmoved. “You did it in part out of simple greed,” Ellis told Pitts as he sentenced him to 27 years. “Demanding is the word for him,” says a former prosecutor in describing Ellis. “He’s demanding of himself and of lawyers.” That can be grueling. In the Lindh case, he has not yet ordered attorneys to file briefs within 24 hours on issues that arise in court, but in complicated cases he almost always does. Meanwhile, he and his clerks will do their own original research. “I think he prides himself and gets enjoyment out of finding cases that are closer to being on point than [the cases] either of the opposing counsel has provided,” Zwerling says. “That’s very impressive.” Some say it reflects Ellis’ background as a partner at a big firm, where associates and paralegals could help with the heavy lifting. “Whatever he wants, he wants it now,” says the former prosecutor, who now does defense work. “Lawyers who have a case in front of Judge Ellis know to watch out for that.” BATTLE PAY The additional labor is no minor matter. In a case last year, Ellis held 10 hearings on a single evidence suppression motion. One Alexandria litigator says that for nonhourly work before Ellis he charges extra, sometimes double. “You have to build it into the fee because it’s going to be a lot more work” than it would be with another judge, he says. Longtime practitioners say this has been Ellis’ way ever since President Ronald Reagan appointed him in 1987. Born in Bogot�, Colombia, in 1940, Ellis graduated from Princeton University in 1961. He was Navy ROTC in college and served as a Naval lieutenant from 1961 to 1966. He took his J.D. from Harvard in 1969, magna cum laude, and holds an additional law diploma from Oxford University. After law school, Ellis joined Richmond-based Hunton & Williams. He quickly joined the partnership ranks and stayed with the firm until his appointment to the bench. From the moment he put on his robes, Ellis started publishing opinions. Since 1987 he has issued 539 written opinions, according to a Lexis-Nexis search. A famous anecdote in Alexandria is that at Judge Leonie Brinkema’s swearing in ceremony in 1993, Senior Judge Albert Bryan Jr. introduced the judges, and when he got to Ellis he said, “And here’s Judge Ellis, who has published more opinions in six years than I have in 20.” Indeed, a Lexis search turned up only 77 opinions by Bryan in his three-decade career. Should either team in the Lindh case march to the 4th U.S. Circuit Court of Appeals, they should know that Ellis is the least-reversed active judge in the Eastern District. Between July 1, 1996, and June 30, 2001, the 4th Circuit published 20 opinions stemming from Ellis decisions. The conservative appellate court reversed him outright in only three civil cases. It took partial exception to another three civil matters. And it’s not because Ellis isn’t bold in his rulings. In one 1999 opinion, the 4th Circuit affirmed an Ellis decision in a criminal case in which he ruled that a prior 4th Circuit opinion on the same issue shouldn’t apply. Ellis may not always be fun, but he keeps everyone on their toes. “The only time I’ve ever thought I was a step ahead of Judge Ellis,” says Alexandria defense lawyer Joseph McCarthy, “I finally realized that he had lapped me and was coming up from behind.”

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