In flyover country, the old saw about six degrees of separation does not apply. It is more like two degrees. This is a post about the intimacy (and that is not too strong a word) that exists between criminal defense lawyers, prosecutors, judges and, albeit infrequently, clients. Be forewarned, this examination ends with a literal punch to the gut and a heartrending chuckle.
Alan Stoler has devoted most, but not all, of his professional life to representing those accused of crimes. He was once a prosecutor who handled all manner of heavy duty criminal cases. Another prosecutor of about the same age is a fellow by the name of Alan Everett. They graduated from the University of Nebraska College of Law at about the same time. During their time together as prosecutors, these fellows played racquetball and cheated on the golf course. I doubt that either one of them was very good at these sports, but that hardly mattered. They were and are close friends.
Both went on to bigger and better gigs. Alan E. became an Assistant United States Attorney. He is among the best I have ever encountered. He is scrupulously fair but tough as nails in the most understated of ways. He is funny. By that I mean he is wry in a shaken but not stirred sort of way.
Alan S. became a CDL, and not just any criminal defense lawyer. He has taken on all comers—from death penalty cases to drug cases that threatened life in prison. Like Everett, Alan S. is among the best I have encountered. He was so good that our court appointed him as the Criminal Justice Act panel representative, serving in that capacity for more than a decade. He taught trial advocacy at the UNL law college for 22 years. Stoler’s sense of humor is similar to Everett’s, although a bit more world-weary, as you shall see at the end.
In 1999, Shon Hopwood robbed his way into our lives. Everett prosecuted Hopwood. Stoler represented Shon. As SHG and Shon have recounted, I sentenced the bank robber, now law professor. While my sentence was long, it was far below what he could have received. In short, the two Alans, and particularly Stoler, did their jobs.
It is time, now, for me to bring into this vignette my dear friend Judge Mark Bennett from the Northern District of Iowa. Judge Bennett and I spoke about Alan this last weekend. Mark shares my view that if you don’t like, and have tons of respect for, Stoler then you are very likely a space alien.
In United States v. Dean, where Alan represented Levon Dean, Jr., at trial and sentencing, Judge Bennett was obligated to follow Eighth Circuit precedent, although he made it plain that he did not like it. The judge thought a sentence of 400 months, driven by 360 months of mandatory minimums, was too high. He was willing to sentence the defendant to one day on the predicate offenses and then impose the statutory minimums but for Circuit precedent.
Stoler handled the appeal to the Eighth Circuit. Unsurprisingly, the Circuit said no dice to Stoler’s appeal. Not to be deterred, Alan flung a cert. petition at the Supremes. My guess is that he held out little hope. Happily for Alan and his client, the Court granted review and appointed Alan to represent his indigent client.
So Alan bent to the task of preparing for his first oral argument before the Court. Then, and giving renewed meaning to the word “irony,” in pops Shon Hopwood, now at Georgetown law. Hopwood, together with others, peppered Alan with questions in moot courts. Stoler was well prepared for the looming intellectual warfare to come.
On April 3, 2017, Stoler won in a unanimous opinion written by the Chief Justice. Dean v. United States, No. 15–9260. The Court held that Section 924(c) does not prevent a sentencing court from considering a mandatory minimum imposed under that provision when calculating an appropriate sentence for the predicate offense.
Because I lack the ability to write anything meaningful as a conclusion, I will end this post where this story takes a wicked, awful twist and a characteristic chuckle from Alan.
Just three days after those arguments [in the Dean case], Stoler, back in Omaha, felt a pain in his gut. He had a stomach ache and a bout of nausea so potent that he was sure he had the stomach flu.
But the gut ache persisted. So Stoler went to the doctor.
Several tests later, the doctor rendered the cruel verdict: a cancer that is rarely curable. Stoler says medical professionals have told him not to look past “18 months to two years, at the most.”
“I was on the highest of highs, traveled the country, argued a case before the Supreme Court,” he said. “And then I got back …”
His voice trails. He chuckles a bit.
Richard G. Kopf
Senior United States District Judge (Nebraska)
 Hopwood told the Omaha World Herald very recently that “Stoler had a tremendous rapport with prosecutors and U.S. District Judge Richard Kopf.” He went on to say, “All of these wonderful things — marriage, kids, a book, my law career — would not have happened without Alan. I’d still be in federal prison right now.”
 Todd Cooper, Omaha lawyer used to long-shot battles faces toughest fight yet: pancreatic cancer, Omaha-World Herald (April 26, 2017).