Kopf: Several Unrelated Observations About Stuff

My mind wanders.[i] So, I will inflict my affliction on you, the noble readers of SJ.


*On my own, I write about 40 percent of the non-death penalty habeas corpus cases on the pro se docket of our court. I am responsible for all pro se cases save for death penalty pro se cases in the District of Nebraska. That docket includes almost all of the habeas cases because habeas petitioners seldom have counsel. The pro se law clerk, whom I supervise, writes the rest.

Today, I wrote an opinion bouncing a habeas case because the inmate blew the AEDPA one-year statute of limitations. (I know most of you hate AEDPA—not me.) Anyway, I write all these habeas opinions by myself without assistance of my career law clerks or the pro se law clerk. Same with 2255 motions and any death penalty case I draw or to which I am assigned.[ii]

In now-retired Judge Richard Posner’s new book, he recounts writing all of his own opinions and recommends the same for other judges. While serving as trial judge, I couldn’t get my work done if I wrote all my own stuff. However, I think all federal judges ought to commit to writing more than a few of their own opinions without any help from law clerks (save for citation checking).[iii] Being alone on the high wire is good for aging, and not so aging, brains.

*Speaking of Posner, did you see David Lat’s remarkable post recounting an e-mail exchange where the former judge recounts his reason for quitting? Apparently, Posner’s former colleagues on the Seventh Circuit won’t change their ways regarding pro se litigants. The former judge wants such litigants treated more fairly. Posner doesn’t explain what changes he wanted made and I can’t speculate about his concerns. That said, the great problem with pro se cases is that more than 99% are BS—that’s an exaggeration, but not much of one. Yet, I am consistently worried that I will miss the one needle in the enormous haystack.

Since you can’t manage by exception, I am looking forward to hearing more about the former judge’s concerns and whether his vaunted love of pragmatism is evident in his desire for change when it comes to handling pro se litigation. He indicated another new book is forthcoming that will address that subject. [Edit: Posner has now detailed his pro se proposal in Adam Liptak’s September 11, 2017, article in the New York Times, entitled An Exit Interview With Richard Posner, Judicial Provocateur.]

*Doug Berman highlighted “Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won’t reduce homicides. Just look at St. Louis,” a piece in Politico by Mark Obbie. Color me unimpressed by Mr. Obbie’s article. Obbie essentially thinks Sessions is a dolt (a general principle that I don’t care to debate) because Sessions is hot to trot on federal gun prosecutions (a point on which the Attorney General and I agree).  Obbie says it is not about drugs being tied to guns. That is, mere “personal conflicts among young black men make up a vastly disproportionate share of shootings.” Obbie adds:

In his police work, Jerry Leyshock has observed the same phenomenon. “You’d be surprised at how many murders that I looked at last year, when we finally just got to the meat of it, it had nothing to do with gangs, dope, or anything,” he says. Instead, “it was over the most senseless things you’ve ever heard of.”

From my perspective, this is reason enough for the feds to take these shooters off the street for a much longer time than the insanely easy sentences the state courts in St. Louis sometimes impose.

*Senator Al Franken is taking heat from his generally liberal hometown newspaper for not returning the blue slip for the obviously qualified Minnesota Supreme Court Associate Justice David Stras, who has been nominated for a seat on the Eighth Circuit. I confess that I think highly of Franken, although generally speaking, he and I would not agree about the color of the sky on a clear day.

Anyway, Franken treated United States District Judge Ralph Erickson, from North Dakota, very nicely when the judge appeared before the Judiciary Committee on his nomination to the Eighth Circuit.[iv] Indeed, during the confirmation hearing, a particular exchange between Franken and Ralph[v] about the nominee being an alcoholic was both amusing and heart-warming.

Here is a newspaper account of that exchange:

Erickson also won support from Democratic senators in regards to comments he made about his personal struggle overcoming alcoholism and in adjudicating cases involving Native Americans.

“May I ask you how long you’ve been in recovery?” asked Minnesota Sen. Al Franken.

“It’s over 26 years, Nov. 10, 1990, at 4 o’clock in the afternoon, sir,” Erickson answered.

“Bravo,” interjected Rhode Island Sen. Sheldon Whitehouse.

“OK, what happened at 3:59?” Franken replied to Erickson amid laughter throughout the room. “That was a joke.”

“Should I take the Fifth now?” Erickson said.

Franken then talked about how he found Erickson’s testimony “very moving,” particularly in dealing with the sentencing of Native Americans.

“We need more alcoholics in our courts. Certainly in this circuit,” Franken said, smiling. “Oh, oh recovering, recovering. Not active alcoholics, yes. I don’t want to confuse anyone here.”

Had enough of my babbling? I have.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] I am writing this on Friday in preparation for posting on Wednesday. I am more than slightly bored.

[ii] I presently have two habeas death penalty cases, one in Nebraska and one in Arkansas.

[iii] I even love inserting hyperlinks on my own. I insist that all opinions coming out of my shop use hyperlinks. I don’t have much of a life.

[iv] The judge has the support of both of North Dakota’s U.S. Senators, a Republican and a Democrat.

[v] I have enormous affection and respect for Ralph.


8 thoughts on “Kopf: Several Unrelated Observations About Stuff

  1. B. McLeod

    I could only conclude from Posner’s remarks that things must be very different in the 7th Circuit, as the federal judges I know bend over backwards to be fair to pro se litigants (even when said litigants appear only marginally sane).

  2. Jake

    Well Judge, since you’re bored, perhaps you won’t mind answering one quick question to satisfy a non-lawyers curiosity: What’s the difference between a writ of Habeas Corpus and 2255 motion?

      1. LocoYokel

        I can’t afford your consultation fee, judges are already paid by my taxes. Plus you’re mean and he’s a kind ol grampa.

    1. Richard Kopf


      It is a motion, like a habeas petition, but it attacks a federal conviction or sentence. Otherwise, a 2255 motion is similar to habeas petition that attacks a state sentence or convictions. All the best.


  3. Raymond Rigat

    Just remember what the writer Theodore Sturgeon once said:

    “90 percent of everything is just crap”

    I have to keep reminding myself of this as I plod along writing my briefs and memo.’s (or is it memoranda?) of law. I find it helps me get through the daily grind.

    Keep it in mind as you slog away writing those 2255 decisions. it will keep you sane.

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