It is no secret that I am Guidelines-centric. Why then do I strongly support a “second look” option similar, if not identical, to the one proposed by Professor Shon Hopwood? See Shon Hopwood, Second Looks & Second Chances, Cardozo Law Review (forthcoming), available at the Social Science Research Network (last revised June 30, 2019) at SSRN pp. 21-22 (Part III) (proposing, at a minimum, that Congress enact legislation allowing federal judges to take a “second look” at sentences after the offender has served 10 years in prison and every 5 years thereafter without the offender having to show extraordinary and compelling circumstances).[i]

The following courtroom sketches are of Tom Brady during “DeflateGate.” The artist, Jane Rosenberg, a 35-year veteran of courtroom sketching, received condemnation for the first one and much better reviews for the second one.[ii]  See where I’m going?

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Before you read that which I write next, listen to Judy Collins as she sings “Turn, Turn, Turn! / To Everything There Is A Season.” If nothing else, you will enjoy her magnificent voice.

As I watched Robert Mueller testify before Congress regarding his findings on the Trump investigation, the voice of Collins haunted me. Accurate or not, my impression was that Mueller was far past his “sell by” date. His fumbling, at times incoherent or inaudible responses, coupled with his apparent lack of knowledge of the written report to which he signed his name, reminded me of that which I fear most. Continue reading →

In the rush to empty prisons nicely evidenced by the passage and implementation of the federal First Step Act, I fear that the policy wonks and the judges who follow them disregard a patent truth.[i] There is evil lurking among those who are elderly, yet seek release.

By using the word “evil,” I mean an existential threat to a civilized society. I do not intend the foregoing to be provocative. I mean it literally.

Before Harry Potter’s train leaves, transporting us magically to a world where good consistently triumphs, we need to remember that the journey would not be worth taking without Voldemort showing us that we are risk. We would do well to remember him. Continue reading →

When our host posted Lessons From Fabian’s Viral Video, I was dumbstruck by the outpouring of hatred regarding Ms. Fabian.[i] See, e.g., Manny Fernandez, Lawyer Draws Outrage for Defending Lack of Toothbrushes in Border Detention, New York Times (June 25, 2019) (quoting Howard Dean, the former governor of Vermont and presidential candidate, stating that Fabian “needs to be fired and prevented from ever holding another government job.”)

Having had my ass kicked many a time while arguing before an appellate court, I decided I would take a deep dive into the record to see whether Fabian deserved the attacks. I read the Flores agreement, I read Judge Gee’s opinion in the District Court, and I read the briefs filed in the Ninth Circuit. I also read Ken White’s piece in the Atlantic. Additionally, I watched the entirety of the oral argument in the Ninth Circuit which lasted about an hour. Hell, I even read pieces about Fabian written by Joe Patrice at Above the Law.

For what it may be worth, let me give you my opinion. Ms. Fabian is not the Devil’s Advocate.

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A legion of lawyers, judges and law professors hate the Sentencing Guidelines. I am not one of them. From the beginning, I thought that the Guidelines made sense because they held out the hope that unwarranted sentencing disparity could be addressed, if not eliminated.

When the poorly reasoned sentencing decisions by the Supreme Court came out that ultimately turned the Sentencing Guidelines into Swiss cheese (based, as they were, on a misreading of history at the time of the Founding[i]), we show ponies (federal judges) were off to the races. Always insanely jealous of our prerogatives, a large number of us began to sentence people as we liked despite what our colleagues down the hall did in similar circumstances.

We now know for certain that what sentence you receive in the same federal court in the same large city often depends upon what judge you draw, and the difference is frequently significant. U.S. Sentencing Commission, Intra-City Differences in Federal Sentencing Practices, Federal District Judges in 30 Cities, 2005 – 2017, p. 7 (2019) (stating simply: “In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”)[ii] (“Intra-City Differences”).[iii] Continue reading →

As many of you know, I have devoted my life to dueling with and defeating the white male patriarchy. It is has been a tough slog.

I admit that sometimes I have waffled and reverted to the old ways. But now, I have discovered a path for male[i] readers of Simple Justice to take concrete steps that will ultimately result in defeating the rampant scourge. As you will see, it takes courage and can only be accomplished one foot at a time.

However, I must first make an admission. This past year, and despite the best of intentions, I transformed myself into a pirate. Pirates are emblematic of male dominance.

I just couldn’t help myself.[ii] For a moment it was liberating—pirates dominate the high seas–and then the shame rolled over me like the giant ocean waves at some famous surf beach.[iii]

I was shaken to the core because of my immoral and unwoke behavior. But I have been saved, praise be the God(s). Continue reading →

A meter maid, let’s call her Rita, chalks your car tire so that when she returns a couple of hours later, she will know whether you parked your car too long on a city street. On the face of it, the meter maid has violated your Fourth Amendment right to be free from an unreasonable search because the poor woman chalked your tire.

That’s according to the Sixth Circuit. Taylor v. City of Saginaw, No. 17-2126 (6^th Cir. Apr. 22, 2019) (in a case of first impression and with no precedent clearly on point, reversing Judge Thomas L. Ludington’s grant of a motion to dismiss issued pursuant Fed. R. Civ. P. 12(b)(6) for failure to state a claim in a civil case brought pursuant to 42 U.S.C. § 1983 and remanding for further proceedings [code for a motion for summary judgment under Rule 56]).[i]

Because I don’t know the answers to the many profound questions that the Taylor opinion raises, I am asking the readers of Simple Justice to help me out. Continue reading →

Watch this scene from the movie Gran Torino:

The New York Times recently ran an opinion piece that annoyed the hell out of me. See Margaret Renkl, To Nurture Nature, Neglect Your Lawn−Why poison the earth when you can have wildflowers at your feet and songbirds in your trees without even trying?, The New York Times (Apr. 15, 2019).[i] Not only did it make claims based on bad science, but it was revoltingly preachy.

The author concludes her essay this way: Continue reading →

I did not pay much attention to the trial of Mr. Manafort. When the jury came back for the government on eight of eighteen counts, I wasn’t particularly surprised.[i] After all, these were essentially tax and bank fraud cases (with one count of failure to register as a foreign agent). The government does not bring those document-heavy charges unless it thinks the basic case, while larded with weak counts, is a slam dunk.

From the reporting prior to the verdict, commentators hazed Judge Ellis for pushing the government hard to get the trial over and otherwise being a meanie to the prosecutors.[ii] But aside from this sniping, I yawned.

Then, the judge sentenced Manafort to “only” 47 months in prison for the 70-year-old defendant. The heavens rose up and hell vented noxious gas. Life plus cancer was the proper sentence, and don’t tell us otherwise, the Trump-haters yelled. I yawned once again. Continue reading →

Who spends their time carping about a book review, particularly about a book that the complainant has not and will not read? That would be me.

It seems that Joan Biskupic has written a book about Chief Justice John Roberts, entitled The Chief—The Life and Turbulent Times of Chief Justice John Roberts. Adam Cohen, a former editorial page editor of the New York Times, with legal credentials to match[i] his writing chops, published a review of the book. It is entitled The ‘Enigma’ Who Is the Chief Justice of the United States.

Allow me to digress. Speaking to Planned Parenthood in July,2007, President Obama famously brought forth from the heavens the word “empathy.”  He preached the criticality of that word when it comes to judging.

He said:

[W]hat you’ve got to look at is, what is in the justice’s heart? What’s their broader vision of what America should be? Justice Roberts said he saw himself just as an umpire, but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart–the empathy–to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old–and that’s the criteria by which I’ll be selecting my judges. Alright?

Those words could have been written by a former speech writer for New York City Mayor Bill de Blasio, like Cohen. If he had written those words, Mr. Cohen would surely be harkening back to his days at the Southern Poverty Law Center and the American Civil Liberties Union. With this digression elucidated, we now return to our regularly scheduled programming.

It is hard to tell whether Biskupic will like Cohen’s book review. He describes her book as “assiduously reported and briskly written.” But then he guts her like a fish.

Biskupic all but throws up her hands toward the end of her narrative, calling Roberts an “enigma,” but she suggests that he is pulled by two often-conflicting instincts. One is ideological: a desire to move the court rightward on race, religion and other issues. The other is institutional: an interest in the court being respected and seen as nonpolitical.

So you see, Biskupic doesn’t get it. Cohen knows the real answer. “That dichotomy is true as far as it goes, but there is another defining theme running through Roberts’ “jurisprudence” that eluded the poor woman. Roberts has “a deep-seated bias against the weak.” Simple enough. Roberts hates the less fortunate and that is what animates his jurisprudence.

What I found amusing is that someone at the Times illustrated Cohen’s ugly piece with a photo. It is a picture of Chief Justice Roberts and his son, Jack, on October 3, 2005, the day the Chief took his judicial oath.

In the photo we can see Roberts’ “deep seated bias” against the weak. By the way, Jack and his sister were adopted.[ii]

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

[i]  Cohen obtained his undergraduate degree from Harvard College and later received his law degree from Harvard Law School, where he was the president of the Harvard Law Review.

[ii] Ironically, the Times got itself into hot water when it inquired into the adoptions during the confirmation process. See here (adoption records and footnote 9).