No-Nonsense Innovator

Two years ago, Billie Austin Bryant stood before U.S. District Judge Gerhard A. Gesell in Washington, D.C., to await sentencing after having been convicted of killing two FBI agents. Under the law, Judge Gesell had only two alternatives: electrocution or life imprisonment. Though he declared that death was merited by the mercilessness of the deed, the judge spared Bryant's life. "It would not serve the ends of effective justice to allow the defendant the luxury of all the special attention that a capital penalty would generate," he said. Addressing the defendant, Gesell intoned: "Mr. Bryant, you will die in jail, but at such time as God appoints."

As that episode indicates, Gesell, 60, may be something of a moralist, but he also has a tough, coldly pragmatic view of the law and the realities of its enforcement. His judicial reputation, however, is built on stronger legal stuff than simple allegiance to law-and-order. Gesell is, in fact, a judicial activist whose innovative opinions have upset antiquated laws, blasted unresponsive city governments and, most recently, challenged the prerogatives of 117 members of the U.S. Congress. Since he became a judge in 1968, Gesell has:

>Struck down a 68-year-old District of Columbia law that made it a crime for any doctor to perform an abortion except when necessary for the preservation of the mother's life or health. Finding the law unconstitutionally vague, Gesell urged Congress to write "a far more scientific and appropriate statute for the District of Columbia." Gesell's decision left physicians free to perform abortions so long as the reasons for the operation satisfied both doctors and their patients.

>Ordered the District of Columbia to pay for gas, water and electricity in inhabited slum houses whose owners had refused to foot the bill. He relied in part on a D.C. statute permitting the mayor to provide for utilities and impose a lien on such property. "Where hundreds of residents already living a marginal existence in substandard housing face a cutoff of gas, water and electricity," he wrote, "the municipality has a duty to exercise its inherent power."

>Ruled earlier this month that the 117 members of Congress who hold commissions in military reserve units were violating the Constitution's provision that no person holding any office under the authority of the United States shall be a member of either House. Said Gesell: "Given the enormous involvement of Congress in matters affecting the military, the potential conflict between an office in the military and an office in Congress is not inconsequential." He left to higher courts, the Congress and the Executive the problem of what to do about the situation.

Son of Dr. Arnold Gesell, the late famed pediatrician, Gerhard grew up in New Haven and attended Yale. After graduation, he was undecided whether to go into medicine or law. To help his son make up his mind, Dr. Gesell invited him to attend a major surgical operation. Young Gesell stayed a few bloody minutes, then fled from the amphitheater. His mind was made up: law.

After earning his degree from Yale Law School (which awarded him its Citation of Merit in 1967), Gesell began his professional career as a staff attorney for the Securities and Exchange Commission and later became technical adviser to the commission chairman. Armed with the expertise he had acquired at the SEC, Gesell joined the prestigious Washington law firm of Covington & Burling; during his 26 years with the firm, he established a reputation as one of the most articulate and thorough trial attorneys in town.

As a prosperous Washington attorney, Gesell often invited colleagues to join his family at their summer house in Maine, where he sometimes cooked breakfast, washed dishes and showed his considerable skill as a sailor between long hours of legal work. With the extreme pressures of his judicial office (an estimated 100 criminal and 300 civil cases a year is the normal load for each D.C. district judge), Gesell entertains less frequently now and never talks off the bench about his job. Such legal discussions, Gesell believes, could compromise his independence as a judge. He speaks only through his pithy, straight-talking court opinions, which have already marked him as one of the most independent judges in the U.S.

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