26 minute read
Judge Fred Biery
While Observing The Human Condition, He Also Discovered Himself
By Steve A. Peirce
Federal District Court, Western District of Texas, arraignment and sentencing hearings. The defendants are wearing scrubs of different colors and stripes, depending upon the facility at which they have been held. There are chains around their feet and around their waists, and the waist chains are attached to their wrists. When the defendants raise their hands to swear to tell the truth, they can raise them no higher than mid-chest. Some defendants must communicate through an interpreter, which is a seamless process through the use of wireless Bluetooth headsets. All defendants have lawyers, most of whom are public defenders. For some defendants, family and friends sit in the audience. Others are alone.
The judge is Fred Biery, who has been on the federal district bench since 1994. Prior to that, he served as an appellate justice, state district court judge, and county court at law judge in the state system. All told, he has been a licensed attorney coming up on fifty years, five as a lawyer and the last forty-five continuously serving as a judge. Judge Biery’s staff, whom he regards as family, have worked with him for decades: judicial assistant Gilbert “Gibby” Rodriguez (forty-five years); judicial clerks Gloria Christmas (thirty-three years) and Joani Sullivan (thirty-one years); pro se law clerk Magda de Salme (eight years); court reporter Chris Poage (twenty-seven years); courtroom deputy Jaemie Herndon (seven years); and court security officer Alan Rojas (seven years). They’ve seen it all and know what they’re doing. The judge takes care of his court family. They take care of him.
In the arraignments, defendants must plead guilty or not guilty (there are no nolo contendere pleas in federal court). As required by law, the judge must determine if the defendants are competent to proceed, advise the defendants of the charges against them and their right to trial, and of the appellate and habeas processes. If they are entering a guilty plea, the judge makes sure that they understand the rights they are giving up, and that their plea is voluntary and without compensation or coercion. Judge Biery goes through this process in a calm and thorough manner, without the hint of a script. The arraigned defendants on this day are undocumented immigrants, charged with illegal re-entry into the United States. All have previously been deported. If they plead guilty, they will again be deported, but this time with a felony record, and if caught again in the United States, they will serve a prison term in the United States. And with a criminal record, they will have little chance of ever gaining United States citizenship. “I understand why you want to be here,” Judge Biery tells them. “I was born about a mile north of the Rio Bravo, and won the lottery by being born on this side of it.” He then relates a story that his compadre, Armando Rubio, is a talented mariachi who came to the United States as an undocumented immigrant many years ago, obtained United States citizenship about two years ago, and played the National Anthem on his trumpet at his naturalization ceremony.
Next come the sentencing hearings. In federal court, only the judge issues sentences. Each defendant has either previously pled guilty or was found guilty after trial. A presentence report has been prepared by a probation officer for each defendant. The presentence reports are, in essence, a review of the defendant’s life, and what to make of that life going forward. And while the reports are not public, items from them are discussed at the sentencing hearing. One defendant is a mother of six who was a former star athlete and schoolteacher with a college degree. She became addicted to methamphetamine and began transporting it to support her drug habit, and now she is guilty of conspiracy to distribute almost 4,000 grams of meth. Judge Biery asks about her life, her athletic endeavors, and her coach. Not surprisingly, having been an athlete in and around San Antonio since an early age, he knows the coach, and relates to her his own connections. The exchange is almost as if they are speaking over a cup of coffee rather than a person in chains looking up at a man on a high bench wearing a robe, with her fate in his hands. Then, while the tone remains conversational, the subject matter gets more serious. Judge Biery holds up a packet of artificial sweetener and points out that this about a gram, and that she had 4,000 of those in meth. “With all that extra meth, would you take a little to share with your kids?” he says, knowing that the answer will be “No.” “Then you can see why others don’t want their kids to have meth.” He goes on to say that much of the meth these days is laced with deadly fentanyl, and that couriers like her who lose drugs and money are often horrifically tortured and murdered by the cartels.
Another defendant is a thirty-five-year-old woman who came to the United States as an undocumented immigrant from Mexico at the age of two. Her father had brought her here to escape organized crime, and he later died by suicide. She had three children here in the United States. She was caught transporting thirty undocumented immigrants in a tractor-trailer to the United States, a job for which she was paid $450— money needed to feed her drug addiction. Judge Biery tells her that the undocumented immigrants are exploited, a system akin to slavery, and it was lucky that the trip was in the winter and no one died in the Texas heat.
It is a feature of Judge Biery’s sentencing hearings that, prior to sentencing, he directs the defendants to turn around and face their family and address them. It is a dramatic, and hopefully life-changing, moment. Each of the defendants turns and makes a tearful apology to his or her loved ones with a promise to do better. The mother of six receives her sentence and tells Judge Biery that getting arrested is the best thing that has ever happened to her, and that she will spend her time in prison rehabilitating her life. The mother of three, after serving her sentence, will be deported to Mexico, leaving me wondering how she will ever see her kids. Both defendants will receive addiction treatment while in custody. These defendants were just a few of many on this day. All were treated with respect, and no cases were handled in a perfunctory or summary fashion.
A Judge with a Little Extra to Say
Back in chambers, we speak of the recent Occupational Information Network study finding that judges are in the top five most stressful jobs. Having been emotionally drained myself just watching the aforementioned hearings, which Judge Biery handles about twice a week, I understand. He goes on, “But I look out the window here and see the homeless, the security guard sitting in his car all day, and other folks coming into work every day, and I wonder what I have to complain about.”
The stress study defines stress tolerance as “the ability to accept criticism and deal calmly and effectively with high-stress situations.” On some cases, he projects judicial power. On all days, he connects with the suffering humanity who come before him. In his experience as a federal judge, Fred Biery has faced the Texas Syndicate, the Mexican Mafia, Tango Orejon, the Zetas, the Bandidos, the Aryan Brotherhood, the Crips, the Bloods, cartel bosses, jihadists, terrorists, sovereign citizens, drug dealers, murderers, human traffickers, pimps, child pornographers, fraudsters, embezzlers, and tax evaders. He has heard nationwide class actions and major civil cases, and has dealt with lawyers acting uncivilly. He has been in the difficult position of having to sentence the adult children of some of his classmates.
He is a judge with a little extra to say, though—known for sometimes writing entertaining opinions with lengthy dicta citing literature, religious texts, plays, movies, and songs to explain his take on things. He cannot resist pointing out irony or a “I saw what you did there” pun or play on words. He has even written opinions in poetic verse. He is fond of pithy quotes, like “never F-I-B to the F-B-I.” His opinions show that he is the sworn enemy of bigotry and a protector of voting rights, never forgetting the history of discrimination in this country. His court orders can get creative, too—like the time he ordered lawyers to kiss in front of the Alamo if they continued their incivility, or the other time he put two misbehaving lawyers in “time out” in the courthouse hall while the jury trial proceeded with second chair lawyers. Or his famous “Non-Kumbaya” orders telling the parties that they do not have to sing “Kumbaya,” but they must get along. Or his ruling rejecting an insincere apology letter from a defendant. For his ruling in favor of separation of church and state, he has been publicly vilified and privately insulted, and his early demise has been prayed for in an un-Christianlike manner by those who call themselves Christians. He serves in the largest, and one of the busiest, federal districts in the country. So yes, he’s faced his share of criticism and has dealt with high-stress situations. So where is he coming from?
A Family Story
Fred Biery’s story begins with his paternal grandfather, William Frederick Biery, the mayor of Streetman, Texas, who died in 1920, leaving widow Vermelle—pregnant with daughter Dorothy—and sons Sam (3) and Charles (1). Vermelle tried to make a go of it alone with three small children for a few years, but given the slim opportunities for women, and no life insurance or Social Security, it was not possible. In 1927, the kids were placed in the Masonic Home and School, an orphanage in Fort Worth, Texas. Around that same time, football coach H.N. “Rusty” Russell arrived at the orphanage. Coach Russell started with a group of twelve shoeless undersized orphans with no equipment. Focusing on speed, he created what is now known as the modern spread offense, and the team, nicknamed the Mighty Mites, became the dominant Texas high school football team of the 1930s, often playing in front of crowds of 10,000 fans. In the mid-1930s, Sam Biery (Fred’s dad) was the quarterback on what would now be called the junior varsity. Charles Biery (Fred’s uncle) was a 160-pound lineman on the team that went to the state finals against Corsicana. Coach Russell’s experience at the orphanage was made the subject of a best-selling book, Twelve Mighty Orphans, and a 2021 movie by the same name (unfortunately, the Biery boys are not mentioned because the book and movie focus on more well-known players).
After graduation, Sam served in the United States Immigration (Naturalization Division), the United States Border Patrol, and the United States Navy. In 1941, Sam met Fred’s future mother, Clara Belle, known as “CB.” They married in 1943 and remained together until their deaths only months apart in 2014. Fred was born in 1947 in McAllen, Texas. The family moved to San Antonio, where Sam attended St. Mary’s Law School at night on the GI Bill, while selling bronzed baby shoes during the day. Sam first worked at the City Attorney’s office. Young Fred would attend the Saturday morning “drunk docket,” where those arrested for public intoxication would appear in Municipal Court. Fred’s first job at age fifteen was working for his aunt, Deputy District Clerk Dorothy Hoagland, on the Bexar County jury wheel during the summer (Judge Biery keeps a souvenir jury wheel on his bench). After attending Baylor and serving in the FBI and the Navy, Sam’s brother Charles also attended law school. Together, the Biery brothers formed a law practice in San Antonio.
Back Home to the Jefferson Triangle
“You can call where I’m from the cradle of San Antonio civilization,” Judge Biery says in half-jest. We are riding in his pickup truck on the West Side near Thomas Jefferson High School, from which he graduated in 1966. “I’m part of the post-World War II generation that grew up in the triangle that is formed at the points of Woodlawn Lake, Jefferson High, and St. Mary’s University.” He reels off the names of prominent people from that triangle: Maj. Gen. Alfred Valenzuela (Jefferson High School); Judge Emilio Garza (Holy Cross High School); Ambassador and Judge Ed Prado (Edgewood High School); attorneys Ricardo Cedillo (Holy Cross High School), Rolando Rios (Holy Cross High School), Robert Arellano (Jefferson High School), Gerald Goldstein (Jefferson High School), and Richard “Dickie” Pena, a former Texas State Bar President who was Fred Biery’s backcourt mate on the Jefferson basketball team. Jefferson alone is remarkable for its graduates: Nobel Prize winners Floyd Curl and William Moerner; football greats Tommy Nobis, Kyle Rote, and Gabriel Rivera; tennis coach Emilie Burrer Foster; journalist Jim Lehrer; film producer Marcia Nasatir; Brigadier General Lilian Dunlap; civil rights attorney Gus Garcia; Judge Blair Reeves; Judge John H. Wood; Judge Polly Jackson Spencer; Congressman Henry B. Gonzalez; Joaquin and Julian Castro; United States Bankruptcy Judge Ronald B. King; and, of course, Judge Fred Biery, to name a few.
The Jefferson triangle is an interesting mix. Nearby are Catholic churches, a Mormon church, a synagogue, a Greek Orthodox church, and all manner of Protestant churches. Judge Biery’s panoramic photo of his Jefferson senior class, which is framed in his chambers, shows a diverse student body for the times. There are some stately old homes north and east of Jefferson, but the homes south and west of the school are modest at best. Sam Biery’s family lived in the modest part. “Our first home was at 1618 West French Place, a $50 per month duplex. When I was three, the family bought a 1200 square foot ‘Jewel Box’ home at 247 Placid, with a $84 per month mortgage,” he says. We pull up in front of the Placid house. “Dad liked to gather up the neighborhood kids for softball games in the park down the street. That must have come from his upbringing in the orphanage,” Judge Biery reminisces. “Mother would drop me off at the bus stop close to Jefferson Village Shopping Center, and I would ride the bus at night to be one of the ‘knothole gang’ at the San Antonio Missions’ baseball games.”
“Mother feared that her son would turn out like her father and brothers—who were abusive when they drank—so she pushed my sister, Anna Lisa, and me to achieve. Church was central to that,” says Judge Biery. “There was Sunday school on Sunday mornings, followed by church services, Methodist Youth services in the afternoon, followed by Sunday night service. Then Wednesday family night and Thursday choir practice. I was put in oratorical contests at age eight and did some lay preaching as a teen.” He continues, “I gave graduation speeches for my ninth grade class and also for my senior class. Mother hoped I would be a Methodist minister. Anna Lisa became a beauty queen. My parents lived vicariously through us for the childhoods they never had.”
A Lifelong Hoopster
Basketball was a big part of Fred’s young life, and it remains so today. There is a poignant nostalgia about an old hoopster returning to his childhood gym. We stop off at Woodlawn Lake Gym (built in 1929), where Fred played his first game at age six, to peer into the window, take a picture, and note that the backboards are new, but the wooden seats have probably never been replaced. Another stop was at the location of his old church, where he had practiced on an outdoor hoop in the parking lot. He was a starting guard on the Jefferson team for Coach Jim Heiser, with whom he was close until the latter’s death. His Junior High Coach, Bohn Hilliard, helped young Fred get work as a basketball camp counselor in North Carolina during his high school summers, where he went joyriding on freight trains and hitchhiked around Western North Carolina, using up “seven of [his] nine lives.” He played college basketball for Coach Verl “Jiggs” Westergard at Texas Lutheran University. With his three-on-three team from the Jewish Community Center, he has won eighteen gold and silver medals in the Senior Games. And, at age seventy-five, he plays pickup games at a school gym on Saturday mornings with guys young enough to be his sons. “Sports teach discipline, teamwork and how to come back after a defeat,” he says.
A Law Career Begins, Spanning Parts or All of Six Decades
“Going to law school was a turning point in my life,” Judge Biery says. “I attended Southern Methodist University law school on a Hatton W. Summers Scholarship, but to keep the scholarship, I had to remain in the top 25% of the class.” It was at SMU law that Fred met his study partner, Evelyn, and they married while in law school. He also served in the Army Reserves while in law school and continued to do so until 1976. After law school, Fred joined his father’s and uncle’s law firm. Judge Biery recalls: “We had a ‘door’ practice, meaning we took whatever cases walked in the door. My uncle was the stoic and the legal scholar. My dad was more political and outgoing.” Many of the values that Judge Biery has displayed throughout his career were passed down from his father. “Dad had witnessed a lynching in Corsicana when he was seven years old. It haunted him for the rest of his life. He opposed the death penalty and was a member of the American Civil Liberties Union.” Judge Biery recounts with pride that his father “helped persuade the state legislature to get rid of the state’s system of coverture that kept married women subservient. And he believed that the principles of separation of church and state were violated when Jewish kids in public schools were required to recite the Lord’s Prayer.”
Life Changes and Shocking News
In his late twenties, another life-changing event occurred. He decided to run for County Court at Law against an incumbent, which was an unheard-of longshot and a professionally risky maneuver. But with the help of his mother, many friends, and extended family, who block-walked, worked the polls, and combed the phonebook for addresses to which to send thousands of “Vote for Biery” postcards, he won election. Judge Biery would later be elected without opposition to the 150th District Court and the Texas Fourth Court of Appeals. His only election loss was in the Democratic primary for the Texas Supreme Court, to a lawyer with no judicial experience, but a famous name: Gene Kelly. He jokes that he “might have won if” he “had changed [his] last name to ‘Astaire.’”
In his mid-thirties, then a divorced single man, he was asked by a lawyer friend to consult on an adoption issue. Judge Biery ended up adopting the newborn child himself, a daughter he named Anna Lisa, after his sister. A few years later, he married Marcia, and they adopted another daughter, Molly. Now granddaughters Harlow and Gema (and a third grandchild due shortly) are the apples of his eye. And at the age of forty, he received shocking news from his mother that his dad, then seventy years old, had been admitted to a local psychiatric hospital. “It turned out that my dad had been having panic attacks and suicidal thoughts since about the time I was born. For decades, he had been seeing a psychiatrist. His happy exterior life showed no signs of the demons that haunted him.” The crisis occurred because the elder Biery’s “doctor retired and dad did not continue his treatment.” Judge Biery marveled, “Mom and dad kept this from my sister and me all those years.” But in retrospect, there were clues that Judge Biery perceived throughout his childhood. “Something occurred to me,” he explains. “My dad and uncle were equal law partners. But Uncle Charles lived in a much nicer house in Terrell Hills. Back then, there was no insurance to cover psychiatric problems. Mother worked at an insurance company in her young adult years and as registrar at Jefferson from 1970 to 1985.” Judge Biery realized that his mother had not only worked, but she had also “denied herself things like air conditioning and a washing machine to take care of her husband.” He adds, “I think my dad had a lot of trauma from seeing a lynching at a young age and from being separated from his mother and placed into the orphanage.” Fortunately, Judge Biery’s father “resumed therapy and modern psychiatric medicines and lived happily into his late nineties.”
The Federal Judge
Judge Biery credits his appointment to the federal bench, at least partially, to serendipitous luck. “The Iraq war kept President Bush, Sr. too occupied to appoint a lot of federal judges. Then the candidacy of Ross Perot helped Bill Clinton get elected President,” he says. So, Justices Fred Biery and Orlando Garcia of the Fourth Court of Appeals were nominated in 1993 to the federal district court by President Clinton, relieving Biery’s mom from campaign work forever. Judge Biery would serve as Western District of Texas Chief Judge from 2010 to 2015.
Among the thousands of cases Judge Biery has heard, the Medina Valley ISD case stands out. It was an action by an agnostic family to enjoin the use of religious language at a public high school graduation ceremony. Judge Biery granted partial injunctive relief limiting the use of certain religious words, and a firestorm ensued. The Fifth Circuit dissolved the injunction within forty-eight hours, expressing doubt that the enjoined remarks were school-sponsored. A then-presidential candidate publicly called Judge Biery, the former teen preacher, an “anti-religious dictatorial bigot,” and called for a law to allow Congress to subpoena judges to explain their rulings. Threats and harassment, worse than those from organized crime, followed. The case concluded with a settlement approved by Judge Biery in an opinion containing his Appendix II, a magnum opus on why there is an Establishment Clause in the Constitution, to wit:
[I]f government-run public schools also joined hands with religion and had the power to impose religious views, questions arise: Which holy books and prayers would be preferred? The Torah? The Book of Mormon? The Catholic Bible? The New Testament? The Bible as edited by Thomas Jefferson? The Koran? Would Christians be required to face Mecca or observe Hebrew prayer? Would Jews and Muslims be obligated to stand and recite the Lord’s Prayer?[1]
The opinion concludes with a “Personal Statement” thanking the United States Marshal Service for their security, blessing the lawyers who worked on the case, and stating:
To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.
To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.
To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.[2]
Judge Biery’s 2011 Aquifer Guardians3 opinion is also the stuff of legend. An environmental group sought an injunction to halt the construction of a highway interchange until a study could be done to consider the effect on certain karst invertebrates (cave spiders). Judge Biery’s extensive factual and legal analysis is preceded by a commentary on life in South Texas before the days of highway interchanges, from 1950-1970 (roughly the first twenty years of his life). It is a remembrance of the best of times—where kids played in the streets, and dads could support a family on one income—and the worst of times—marred by legalized discrimination against people of color and women. He posits the theory that the strain on the water systems and environment in South Texas was caused by the invention of air conditioning, allowing less heat-tolerant folk from north of the Texas border to settle here, and that the best solution would be a reverse migration north of the Red River and East of the Sabine River. But in the end, despite his personal lamentations and tongue-incheek proposal on how to fix things, Judge Biery denied the injunction, and, years later, the interchange was completed. The opinion is thirtyfour pages long with sixty-three footnotes, and cites, among many others, Dickens, Marvin Hamlisch, the Lone Ranger, Superman, the Pearl Brewing Company, Shakespeare, the X-Files, the Bible, and Elton John. If you read no other Judge Biery opinions, read Medina Valley Appendix II and Aquifer Guardians
The Things He Loves
“When you get to be Chief Judge, they hang your portrait in the federal courthouse,” says Judge Biery. His portrait is unlike all the others in that Judge Biery is posing with pictures of his parents and daughters, a basketball, and a gardening tool. “These things are there to show that you don’t get where you are by yourself; that it takes the support of your loves ones; and that you need to surround yourself with the things that you love,” he says.
We visit in Judge Biery’s backyard, a wooded natural area. “This is my sanctuary,” he says, looking over the yard’s small statues of St. Francis of Assisi and Buddha, and the Protestant Cross. He shows me where he gardens and the pictures of his crops. “Growing food creates something, teaches humility and appreciation of those who farm full time, and complements professional therapy,” he says. Two beautiful and rare Mexican eagles light on a tree. “We are in the bottom of the eighth inning environmentally, and Mother Nature bats last, so we should enjoy her moments of wonder,” he observes. The property contains an arroyo with an “H.F. Garcia” street sign stuck in it, a souvenir from an unsuccessful effort to name a street after a federal judge colleague. Taking his lifetime appointment literally, he says that his retirement plan is to “have Porter Loring Mortuary come get [him].” He tells me that he’s arranged to someday have his ashes returned to the soil he has tilled for many years, in a brief ceremony presided over by two lawyer friends. He confirms the rumor that he has already written his own obituary, which will be unlike the usual. Having witnessed his dad’s ordeal and the many defendants with addiction, bipolar disorder, depression, and other afflictions of the mind, he is a great believer in mental health treatment. He admits he waited too long to seek therapy for himself, but now regards it as a valuable tool to maintain his health. Self-described as complex, conflicted, and confused, the former is eternal, but the penultimate and ultimate have been resolved.
A Joyous Occasion
On our last visit, I was honored to have a backstage pass to a naturalization ceremony, where new American Citizens are sworn in. Back in chambers, Judge Biery dons his robe and clip-on tie to cover his western wear underneath. The marshals arrive and lead us through a back hallway, and we pass by stainless steel cages where the criminal defendants from the arraignments and sentencing hearings are held. It is a reminder on this particular occasion that the job of a federal judge entails both closing and opening the gate to America. And Judge Biery clearly delights in the latter. “It’s like getting paid to eat ice cream,” he says of this part of the job. The ceremony takes place at the stage out in the open on the courthouse first floor. Over 200 new citizens from 55 countries wait to be sworn in, the culmination of a process that takes years to complete. A color guard from East Central High School presents the colors, and the Pledge of Allegiance is recited by all. An Army band plays the National Anthem. Judge Biery tells the new citizens the story of his Swiss great grandfather, who immigrated to the United States in the late 1800s to avoid being conscripted into Kaiser Wilhelm’s German Army. There, he met his wife (also a Swiss immigrant), and they became tenant farmers in Tennessee. He says “Standing on this stage is an honor. But it is happening because I am standing on the shoulders of those who risked an ocean voyage and tilled the earth to become Americans.” Each of the new Americans in the audience stands as the country of his or her orgin is called out, and Judge Biery leads them all in their oath. A video with President Kennedy’s “Ask not what your country can do for you” speech and patriotic music is played to conclude the ceremony. It is a heartwarming experience, the polar opposite of arraignment and sentencing.
We place a great deal of trust in federal judges. We grant them enormous power to make decisions with life-altering effects on people and our Nation. Their words have tremendous weight. A comment from the bench, or even a facial expression, can alter the course of a case or dramatically affect a client’s life or the arc of a lawyer’s career. Their writings are published and republished and retained forever, and sometimes become the law of the land. And their words can result in threats (or worse) on them, made by those who disagree. Like all of us, their decisions are informed by their life experience and their ability to learn as they go through life. Under that robe is a human being with a story. And Fred Biery is a good one.
ENDNOTES
Judge Biery’s Appendix II is available at Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-422-FB, 2012 WL 933115, at *3 (W.D. Tex. Mar. 19, 2012) and Schultz v. Medina Valley Indep. Sch. Dist., No. CIV. A. SA-11-CA-422, 2012 WL 517518, at *18 (W.D. Tex. Feb. 9, 2012).
See Ken Herman, “A federal judge gets personal,” Austin-American Statesman, (September 1, 2012) available at https://www.statesman.com/story/ news/2012/09/01/a-federal-judge-gets-personal/9775596007/ (updated September 27, 2018).
Aquifer Guardians in Urban Areas v. Fed. Highway Admin., 779 F. Supp. 2d 542, 545 (W.D. Tex. 2011).
