Author Archives: Hon. Richard G. Kopf

Kopf: Victim-Impact Statements and Judge Leben’s Appalling Promotion of Judge Aquilina’s Sentencing Circus

By all accounts, Judge Steve Leben is a highly respected state appellate judge in Kansas who also appears from his writings to be a kind and gentle person. The good judge wrote a January 24, 2018, post entitled Michigan judge provides clinic on showing compassion to crime victims at sentencing for a blog ironically labelled Procedural Fairness for Judges and Courts.

In his post, Leben asks judges to “[s]et the neutrality issue aside . . . .”[i] He wants judges to concentrate upon and emulate Judge Aquilina’s “demonstration clinic on how to show compassion to crime victims” during the sentencing of Dr. Lawrence G. Nassar.[ii]

Before I explain why Judge Leben is wrong and manifestly so, let’s get some basics out of the way: Continue reading

Kopf: An Old Male Judge’s Reflections On A Supposed #MeToo Moment

Ever since the Kozinski horror, I have been more intently reading[i] and listening[ii] to the stories of female lawyers who have suffered various kinds of abuse or disrespect from male lawyers because of their gender. I was, and am, not so much interested in assaults or explicit sexual harassment because it is obvious that no one should suffer such things.

I was, and am, more interested in the interactions (sometimes subtle) of male and female lawyers in the courtroom. Taxonomy is important. There is, at least to me, an important distinction between incivility writ large and sexism. In my view, it is important to distinguish between the two if only to avoid confusion, but as this post illustrates (I hope), that can be difficult. People of good will can easily conflate the two and the resulting uncertainty may cause us to talk past each other.

I stumbled across a twitter thread from a female lawyer, perhaps a CDL given her twitter handle (@CriminelleLaw), that I encourage you to read.[iii] I want you to assume, as I do, that CriminelleLaw and the lawyers who later responded in the twitter exchange are all well-intentioned. Continue reading

Kopf: A Contrarian’s View Of The Vanishing Federal Criminal Jury Trial

Over the last three decades, there has been a steady overall decline in federal criminal jury trials. For compelling proof and a penetrating explanation of why this decline has taken place, see Honorable Robert J. Conrad, Jr., United States District Judge for the Western District of North Carolina and Kathy Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judge, 86 GEO. WASH. L. REV. __ (forthcoming Mar. 2018). I can’t compliment these authors too much. Their work is superb.

Consider the following charts taken from The Vanishing Criminal Jury Trial for the period of 1980-1999[i] and 2000-2016[ii]:

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Kopf: A Short Take On A Coincidence

Albert Einstein (just call him “Al”[i]) is reputed to have said a lot of catchy things. One of them is this:

Keeping in mind what Al said, I write about Senator Chuck Grassley and Judge Alex Kozinski. Because it tickles me, I refer to them as Chuck and Alex.

On December 6, 2017 (keep this date in mind), Chuck introduced Senate bill S. 2195 that would compel the Chief Justice to appoint an Inspector General for the federal judiciary after consultation with the leaders in the House and Senate. See here. Chuck wants an unrepentant Inspector Javert to “conduct investigations of alleged misconduct in the judicial branch . . . .” This is so despite that fact that Chuck’s branch does not have an Inspector General. Continue reading

Kopf: Can You Hear Me Now?

In this post, I make several random observations about the Carpenter cell phone ping-records case. There is no particular order to my musings.

First Random Observation: Despite the fact that he and I almost got into a naked mud wrestling match over another Fourth Amendment issue, I agree with Professor Orin Kerr’s point of view in the Carpenter case. Among other things, he argues in his amicus brief (at page 3) that:

Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct. By contracting with a cell phone network provider to deliver their calls, customers ensure that network providers may be available to testify – whether in person or by sending records – about how the providers made that delivery for their users. Just as a person voluntarily exposes himself to observation by traveling in public to deliver a communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely. The Fourth Amendment is not implicated by compelling testimony from an eyewitness or by observation in public.

Continue reading

Kopf: Steven Calabresi Should Stop Pulling Imaginary Stuff From His Butt

Professor Steven G. Galabresi has an impressive resume. From the Northwestern School of Law website, consider the following:

Professor Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law.  He is also a Visiting Professor of Law at Yale Law School, Fall 2013-2016; a Visiting Professor of Political Theory at Brown University for 2016-2017; and the Chairman since 1986 of the Federalist Society’s Board of Directors. Professor Calabresi worked in the West Wing of President Ronald Reagan’s White House; was a Special Assistant for Attorney General Edwin Meese III; and he clerked for Justice Antonin Scalia on the Supreme Court and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals.

(Italics by Kopf.)

As SHG has written, Professor Calabresi[i] published a piece on the Social Science Research Network. It is entitled, Proposed Judgeship Bill, and it consists of a memorandum written November 7, 2017, and rather pompously addressed to the entire Senate and House of Representatives. (I refer to this article as “The Memo.[ii]) Continue reading

Kopf: On Prison Hospice Care

My brother is dead.[i] He died last Thursday. As you read this, I am in Cleveland to attend to the committal of his ashes.

Despite being closely monitored by the Cleveland Clinic for the recurrence of a cancer that he had beaten against all odds, a different cancer silently struck. Sarcomatoid renal cell carcinoma (RCC) is an aggressive form of RCC and is associated with an awful prognosis. That’s what hit my brother literally out of the blue.

His spine, hips and other distant structures were riddled with metastases. Even though he denied it, his pain was off the charts. In the last month, he could not walk for fear his pelvis would shatter. He was dead in a little less than three months after the diagnosis.

I saw my brother about a week before he died. He was at the Ames Family Hos​pice House. That place, its doctors, nurses, staff and volunteers, are all a marvel. Even though my brother, a former locomotive engineer and local union chairman, would sometimes demand the nurses allow him to put on his pants so he could go to work, he was afforded maximum cognitive clarity while still achieving relief from his extreme pain. Continue reading

Kopf: How The ABA Standing Committee On The Federal Judiciary Might Regain its Credibility

I write about the Standing Committee on the Federal Judiciary of the ABA.[i] The Standing Committee’s recent “not qualified” rating given by a unanimous vote of the members who voted (one abstained) regarding the nomination of Steve Grasz[ii] to serve as a judge on the United States Court of Appeals for the Eighth Circuit has created a firestorm of criticism.[iii]

According to Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, members of the Standing Committee will appear before the Senate Judiciary Committee on November 15, 2017. I predict a nasty hearing as the Chair and maybe other members from the Standing Committee are grilled about the handling of the Grasz nomination and, perhaps, other nominations.

As a preview, watch this detailed, and maybe even devastating, criticism (nearly 20 minutes) of the Standing Committee by Senator Sasse on the floor of the Senate on November 2, 2017, following the confirmation hearing of Mr. Grasz on November 1, 2017: Continue reading

Kopf: A Short Take on a Pithy Comment by an Aging Trench Lawyer

On October 18, 2017, the CATO Institute held a day-long program on “Criminal Justice at a Crossroads.” The program consisted of various panels discussing a variety of issues regarding the criminal law.

Our host, Scott Greenfield, sat on one of the CATO panels with Judge Jed Rakoff, the eminent Senior Judge from the U.S. District Court for the Southern District of New York. The third panelist was Suja Thomas, Professor of Law at the University of Illinois at Urbana-Champaign and a scholar devoted to studying the American jury system. The panel discussion was entitled, “The Defendant in Court.”

The primary discussion that ensued dealt with the dearth of criminal jury trials and the large number of plea bargains. Everyone seemed to agree that more criminal jury trials would be a good thing.[i] But then the discussion turned to plea bargains. Continue reading

Kopf: On Mindless Judicial Pomp

If you have not read A Gentleman in Moscow by Amor Towles, you must do so. It is writing at its very best. I suppose that is why it was on the New York Times bestseller list for over 40 weeks.

If Jefferson’s celestial watchmaker would, playing against type, deign to bestow upon me the ability to write only 10 percent as well as Towles, I would pledge my troth to Roxane Gay.[i] If the omnipotent maker preferred, I would prostrate myself before the insipid youngsters who attacked Scott for being a misogynist or a sexist,[ii] and therefore unworthy of a legal writing award. But I digress.

A Gentleman in Moscow centers on the witty and observant Count Alexander Ilyich Rostov who was already ensconced in luxury in Suite 317 of the Hotel Metropol when he was sentenced to house arrest at the very same hotel by earnest Russian revolutionaries. (Think of a certain strain of Appellate Twitters!) This banishment took place after a 1922 trial, where Rostov was condemned for writing an insufficiently proletarian poem. (Think of our host!) It is from this hotel in Moscow that the story unfolds.

No more, now, about the book, except to recount one of the Count’s trenchant observations. The reader is informed that “pomp is a tenacious force. And a wily one too.” And it is about judicial pomp that I write. Continue reading