Kopf: A Short Review of the Pandemic and The District of Nebraska

Scott asked that I give you my point of view of how the pandemic has impacted the federal court in Nebraska. I will be short and only as transparent as I feel comfortable. Some things I am holding very close to my vest. And, of course, this post is personal and cannot be taken as an overview of the entire federal judiciary or my particular court.

First, our court is essentially shut down with most everyone working from home. My CRD who is a young woman, with no children, has volunteered to staff the Lincoln Clerk’s office every day. (She’s the best.) She will have one additional person help her each day with that second person serving on a rotating basis. A similar rotation system, I believe, is operating in Omaha. CM/ECF (electronic filing) is up and running as usual.

Second, we have effectively shut down all civil and criminal trials and in-person hearings through May 1st.  See here. (Note we have excluded the time under the Speedy Trial Act.)  We have the systems in place at the various jails to get this done via video conferencing thanks largely to our Magistrate Judges and our superb local IT staff with the cooperation of the jails.

Third, the criminal law in this area is uncertain. But we believe the pathogen allows us to use video conferences for almost everything except for critical stages of the proceedings. Even then, a waiver may suffice. Our court has been presented with extremely detailed advice on these legal issues prepared by very smart law clerks here in Nebraska. Elsewhere, I have no idea what your courts may conclude as a legal matter.

Fourth, yesterday, we had a big glitch nationally. Our government-issued iPhones and laptops failed to a significant degree. They are now up and running. I am told this was not a function of overload. So, if you saw a delay yesterday, blame it on God.

Fifth, throughout, our Chief Judge, John Gerrard, has been in close contact with the Federal Public Defender, US Attorney and the U.S. Marshal. I think it fair to say that they generally are all on board.

Stay tuned! All the best.

Richard G. Kopf
Senior United States District Judge Nebraska

17 thoughts on “Kopf: A Short Review of the Pandemic and The District of Nebraska

  1. Chris Van Wagner

    Thank you, Judge Kopf. Here in Madison, the chief judge – ordinarily a clear thinker of eminently reasonable mien – elected to conduct a bench trial this week. The defense attorney scratched his head and made his appearance. Alas, by midday Tuesday it all caved in when one of the players was found to have been directly exposed to someone with COVID-19. That left the rest of the courtroom players in self-quarantine for the next 14 days. And in this particular courtroom the counsels’ tables are maybe 20” part, and maybe 4′ wide. That, it seems, will bring any further in-person appearances to a halt.

    Reply
    1. Richard Kopf

      Chris,

      Thanks for the update.

      Reminds me of my old law partner, now a state district district judge, I spoke to him last week and he completely changed his mind about soldiering on with trials and so forth as he had previously stubbornly decided to do.

      I asked why? He replied that he did the research and concluded that he should not play the hero at the expense of others. I am pretty sure he saw a black swan too.

      All the best.

      RGK

      Reply
  2. Keith Lynch

    Thanks for the update. I’m concerned about “excluded the time under
    the Speedy Trial Act.” I don’t see any pandemic exemption in the
    Sixth Amendment, even though the Founders were certainly quite
    familiar with pandemics. I think everyone awaiting trial should be
    freed and the charges against them dropped. Charges can be refiled
    after the pandemic is over.

    I’ve read that some courts, not wanting to let a perfectly good
    pandemic go to waste, have been using the disease to coerce plea
    bargains. “Plead guilty and we’ll sentence you time served and
    release you today. Maintain innocence, and you’ll stay in our
    unsanity jail, where you’ll likely catch and die of the disease,
    while we postpone your trial until maybe someday.

    Reply
    1. SHG

      While Judge Kopf can address the Speedy Trial Act, bear in mind that coercing pleas for minor offenders by offering release is a state court game.

      Reply
    2. Richard Kopf

      Keith,

      Because I may have to decide the issue you raise, I respectfully decline to address it in any detail.

      But if I were you I would look at the “interests of justice” exclusion among other portions of the Act. 18 U.S. Code § 3161(h)(7).

      As for dropping charges as an expedient, that is an Executive branch decision.

      All the best.

      RGK

      Reply
      1. Patrick

        Judge,

        I’ll look forward to your opinion on the issue, which I agree seems certain to be raised.

        My own two cents (which aren’t worth face value) are that (h)(7) offers very little in the way of justification. Delay for pandemic isn’t a comfortable corollary to any of the non-exhaustive “factors” noted at (h)(7)(B), nor are the “ends of justice” seemingly served by the delay, if the “ends of justice” has a similar meaning to that which could be extrapolated from the subsection (B) factors.

        I wonder if the procedure noted in 18 U.S.C. 3174 could be utilized here, even though that provision facially relates to staffing issues (or so it seems to me). What’s happening is more comfortably a judicial emergency (maybe not in the term-of-art way used by 3174), and suspension of the speedy-trial time frames would be justified under that conception (maybe?) even where it seems a far tougher sell to frame a delay as in the “ends of justice.”

        Cheers –PJG

        Reply
        1. Richard Kopf

          PJG,

          Thanks for the comment. Thoughtful analysis.

          Want a little irony? “Interests of justice” is one of those phrases like “not greater than necessary” in section 3553 of our sentencing directives that give judges lots of wiggle room.

          In any event, we shall what we shall see. All the best.

          RGK

          Reply
        2. Miles

          When Judge Kopf says he can’t discuss an issue, most of us here take the cue and let it drop, recognizing that he’s a friggin’ judge and can’t discuss it. You took the cue as, “you can’t discuss it, so let me tell you all about my thoughts.” Way to make Judge Kopf regret writing posts here, genius.

          Reply
  3. Rich

    Oh Jesus h christ!
    The law really is a smug ass and passes the buck just as skillfully because words and repressed feelings.
    Soldier on!

    Reply
    1. Richard Kopf

      “Smug ass” is the nicest thing I have been called for a long time. Mostly, it’s “dumb ass.”

      All the best.

      RGK

      Reply
    2. Miles

      You get the chance to post a comment to a federal judge and use it to conclusively prove you’re a monumental asshole with absolutely nothing to contribute. Aren’t you special.

      Reply
      1. SHG

        I considered trashing the comment, since it was worthless gibberish, but every once in a while want others to see what I see on my end of the dashboard. Remember, there’s no sanity test to buy a keyboard.

        Plus I knew Judge Kopf could handle it.

        Reply
    3. JohnM

      I learned from this post that a smug ass can pass the buck as skillfully as “the law” because it apparently has words and some repressed feelings.

      I would add in the “More you know” banner from the 80’s, but I’m not sure if has words or repressed feelings.

      Reply
  4. Scott Jacobs

    Glad to see Nebraska’s federal courts are acting with what seems to be common sense.

    Stay say and healthy, your Honor.

    Reply

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