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. Continue reading
Last week, I wrote about the statue of Chief Justice John Marshall. I provided some history about Chief Justice Marshall, noting his association with slavery.[i] That resulted in a number of interesting comments that expanded the discussion to, among other things, statues of confederate soldiers. I write next about those statues.
Imagine, if you will, a tin soldier in confederate garb. I am taking about an object a history buff might use in his or her basement to reenact a battle during the civil war. The little figure might be someone like Confederate General Thomas “Stonewall” Jackson.[ii]
This tiny tin soldier in the hands of a history buff would not be offensive to most people, whether they be white or black. But now let’s expand the thought a bit. Assume the tin soldier has been blown up and plunked down in front of a courthouse where blacks and whites go to get justice (whatever the hell “justice” means). Does that change things? Continue reading
In 1901, James Bradley Thayer wrote a short biography of Chief Justice John Marshall. (You can download the book here for free.) At the end of this little book, Thayer, a legal giant in his own right, beautifully describes a monument to the greatest Chief Justice in our nation’s history.
Thayer writes:
On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend, —placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. The figure is leaning back in the chair with the head slightly inclining forward; the right arm rests on the arm of the chair, with the hand open and extended; the left hand, holding a scroll, lies easily on the other arm of the chair. The crossed legs are covered by the gown, while low shoes and buckles, and hair gathered in a queue, speak of life long habits. The solid and beautiful head, and the grave and collected dignity of the features and the whole composition are very noble, satisfactory, and ideally true.
On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (the Committee) considered the petition filed by United States District Judge John R. Adams seeking a review of an Order of the Judicial Council of the Sixth Circuit (Judicial Council) finding Judge Adams committed misconduct as understood within the meaning of the Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351-64, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) (amended Sept. 17, 2015). See here for a well-written and thorough news article summarizing the matter and here for the rulings of the Committee and the Judicial Council.
The Committee made a decision of first impression that is both extremely important and yet chilling:
In this matter of first impression under the Judicial Conduct and Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings, we reject Judge Adams’s constitutional and statutory challenges to the Judicial Council’s finding that he committed misconduct and directing him to undergo a mental health examination. For the reasons discussed, the Act and the Rules authorized the Special Committee’s request that Judge Adams submit to such an examination, the Special Committee was justified in making the request based on its findings concerning Judge Adams’s behavior, and Judge Adams’s objections to the examination do not justify his failure to cooperate in the investigation.
Committee Opinion, at pages 38-39.
However, the Committee reversed the Judicial Council’s decision stripping the judge of his cases for two years. The Committee wrote: Continue reading
I just returned from the Peoples Republic of Portland. The experience was jarring.
In Portland, there are no homeless people. There are, however, houseless. What that means is that homeowners cannot complain if the houseless shit on your front yard as your children skip off to the gender fluid schools. After all, where else would you expect these folks to leave their droppings?
The people of Portland are wildly woke. The City recently banned investment in evil corporations. Caterpillar is particularly evil because the Israeli defense force has armored bulldozers purchased from Caterpillar. Damn Jews.
Joan and I attended the drop dead gorgeous wedding of her nephew. It was held in a vineyard with an amazing view of Mount Hood. I especially liked the Subaru driven by the Chef. I have even photographed it for you. If you are a millennial, then you are likely attracted to the photo. In that same vein, and for the bride and groom, I extend my best wishes to them and my fervent hopes for a world protected by a really fat guy by the name ALGORE whose primary accomplishment is proving that a breakfast of biscuits and gravy is an inconvenient truth.
Anyway, with a sense of extreme relief, I got back to Nebraska. Nebraska is nice. In fact:
Yet, upon returning, I found that Nebraska is under attack. See Mitch Smith, Nebraska’s Flag Lacks Pizazz. The Hard Part Is Changing It, New York Times (August 10, 2017). Our dear flag is, according to the Times, the worst of the worst.
The author of this slander writes:
For several days this January, the state flag outside Nebraska’s Capitol fluttered upside-down in the frigid sky. And for several days, as lawmakers and lobbyists shuffled past, no one noticed.. . .
John M. Hartvigsen, president of the North American Vexillological Association, said the state seal on a solid background is a product of a different era when state flags had a more limited role.. . .
Mr. Hartvigsen’s organization suggests principles for successful flag design: simple concepts, a distinct look, bold colors and no words. Nebraska’s banner violates nearly all of them.
“It’s a flag that would be easy to fly upside down with nobody noticing,” Mr. Hartvigsen said.[i]
I now call upon Admiral Greenfield to take action. Like Admiral Nelson at the battle of Trafalgar, his Excellency Greenfield is now charged with defeating the armada of those who would sully the flag of his adopted kinsmen (and women, of course). Even though Nelson was shot through the spine by a sniper high atop the rigging of an enemy vessel, he lived long enough to know of his victory. It is not too much to ask the same sacrifice of Admiral Greenfield.
By the way, if you take a crap on my lawn, you may find yourself wrapped in the flag of Nebraska and hoisted aloft upside down.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] I pause only to note that Oregon has a beaver on the reverse of the state flag.
That caused one wag to write and illustrate the following:
Even though it was written in the dark ages (1955-56), if you have not read “Howl” by the poet Allen Ginsberg, it is way past time you do so. You can read the poem here or listen to Ginsberg read it here.[i]
The poem starts like this: “I saw the best minds of my generation destroyed by madness, starving hysterical naked, dragging themselves through the negro streets at dawn looking for an angry fix . . ..”
I recently heard twin echoes of “Howl” at a sentencing of a Native American who accidentally killed his African-American friend. And it is about that profound experience that I now write. Continue reading
I am still chuckling about making the Appellate Twitters explode with angry twits (I mean tweets) about my advice to young practicing lawyers not to complain about work/life imbalance (and lots of other stuff that the twitters (tweeters?) ignored). In that vein, as my daughter, her husband and my three grandchildren, all from China, are here, I am obligated to show up at home.
After all, down deep where the wild things are, I am a true believer in work/life balance particularly because (1) I now have no clients to blow off and (2) I also no longer have a child whose psychosexual development will be grievously impaired if I absent myself from an award ceremony where a prestigious participation trophy will be presented. Of course, and because I love it so, I will make time for sending folks to prison.
The foregoing explained, this is a roundabout way of telling you that this post will be short. Here goes.
Attorney General Sessions* has decided to reinvigorate the war on drugs. That is slightly stunning because, according to leakers[i]; he has been extremely busy giving away the nuclear codes to the Russians. I don’t know where he finds the time. Anyway, the reinvigoration of the war on drugs by Sessions stimulated my aging synapses and the following spilled out. Continue reading
Letters to a Young Scientist was written by Edmond O. Wilson, the Pulitzer Prize winning biologist and the foremost expert in the world on ants. If you get nothing else from this post, buy and read that book.
I thought I might try my hand at writing something roughly similar, albeit far less beautiful and far harsher. If you are a young practicing lawyer, I hope that this post will curl your toes, but resonate with you too. Consider please the following advice from an old, straight, white man who was once a practicing lawyer.
Dear Young Practicing Lawyer,
You are young and immature. You instinctively know that you cannot comprehend what your youth and immaturity mean. So, I am going to mentor you from the vantage of 70-plus years. Don’t be mad or sad. Just read and reject or accept as you think best. After all, you are alone in this immense universe. In the end, the choice is yours and yours alone. Continue reading
Judge Joseph R. Goodwin is a highly regarded and long serving United States District Judge in the Southern District of West Virginia.[i] He has written an opinion[ii] rejecting a plea agreement that deserves to be read by federal prosecutors and federal CDLs alike, no matter where they practice. It sets forth a thoughtful schema for rejecting regular plea agreements, not just Rule 11(c)(1)(C) plea agreements. With sincere respect, the good judge is quite wrong.
Charles Walker is a very small-time drug dealer. He was charged in a six count indictment. Four counts related to the distribution of heroin. Two counts related to the distribution of fentanyl and one count charged that Walker was a felon in possession of a firearm.
There were seven controlled buys resulting in small quantities of drugs. According to Judge Goodwin, Walker sold a total of 0.729 grams of heroin, 0.071 grams of fentanyl, and 0.17 grams of a furanyl fentanyl during these buys. After these controlled buys, an arrest warrant and a search warrant were executed. According to the judge, the agents searched the defendant incident to arrest and discovered an additional 9.7 grams of marijuana, 2.081 grams of powder cocaine, and 0.845 grams of a heroin and fentanyl mixture.[iii]
The agents then executed a search warrant and recovered a set of digital scales, one bag of a white substance, one box with a suspected methamphetamine pipe, one bag of suspected marijuana, five boxes of 45 caliber ammunition, two pistols, miscellaneous medical items containing the defendant’s name, and a cell phone used during the controlled buys. Continue reading
Even when you, the offender, help the government by providing really important substantial assistance in the investigation or prosecution of another person, if the prosecutors and the case agents are pissed off at you because you played games with them, it is very hard to get a sentence-reduction motion. See, e.g., United States v. Scarpa, No. 16-303 (2d Cir. June 22, 2017) (while it was undisputed that Scarpa, a “made member” of the Colombo crime family, had provided substantial assistance in locating Terry Nichols’[i] long-hidden cache of explosive components, because the defendant was otherwise a lying sleaze ball[ii], the district court lacked authority to compel the government to file a substantial-assistance motion and reduce the defendant’s sentence by 10 years; a district court “may not override the government’s refusal to make a [sentence-reduction] motion on the basis of the court’s own balancing of the costs and benefits of making such a motion.”)
Nonetheless, as I have learned over the last 25-plus years, sometimes a federal district judge must get down and dirty with intransigent prosecutors. The judge must slap the government upside the head.
Attribution (as requested): WorldArtsMe
This post is about Mary Ann Rounsavall. It is also a post about my long wrestling match with a line prosecutor over his refusal to file a motion to allow me to go below the statutory minimum because of Rounsavall’s substantial assistance in the prosecution of her brother. Continue reading