Update on Baby Jason

UPDATE:

With a tip of the hat to Adam for his research (and, yes, Adam, now get back to billable hours), here is more about Baby Jason:

[I]n googling more about the murder you mentioned, I came across an article from New York Magazine about the investigator on the case and its effect on him. See  http://nymag.com/nymetro/news/people/features/11476/index2.html
 
Westlaw shows a total of 7 orders at various stages of the case. He was ultimately convicted and received sentence of 26 years 2 months to life. He has parole hearing in August 2016 and an earliest release date of December 2016.  See  http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130
I just can’t get enough!
RGK

Where are they now?

Oprah had (or used to have) a TV program entitled “Where are they now?” The show features celebrities like Tom Green or Nicole Richie who may have seemingly dropped off the face of the earth. The production provides an update on that person. This post is sorta like that, although much, much darker.

In 1984, Jeff Jacobsen and I represented Platte Valley Harvestor in a difficult farm case about alleged damage to dairy cattle. Picture the big blue silos you see on farms. That’s what our client built and installed after buying the parts from the manufacturer. The dairy cattle were feed out of that structure.

Jeff is one of the best and most experienced trial lawyers in Nebraska and perhaps the funniest lawyer I know. He had the insurance defense on the negligence claims. Because there were warranty claims that were not covered by insurance and the claims were large enough to sink the business and then some, I defended our client on those issues.

We had a long and contentious jury trial in Furnace County, Nebraska. I am not proud of the fact that Jeff had to restrain me from punching our opponent in the mouth after trial one day. The essential claim against our client was that the big blue structure our client built for the farmers had poisoned the dairy cattle such that they milk production was dramatically reduced. Throughout the trial the plaintiffs mentioned their “baby Jason.” By the time of trial, the kid was certainly no longer a baby. He was about 13 years old.

The jury came back for the farmers on the negligence claims, but the judge pitched the warranty claims. Jeff appealed and a young and  very bright associate of Jeff’s by the name of Steve Russell wrote the portion of the brief that dealt with the negligence claims and I wrote the portion of the brief dealing with the farmers cross appeal on the warranty issues. The Supreme Court reversed the jury verdict for the plaintiffs, and affirmed the trial judge on the warranty claims.

In short, we won a complete victory. See Agristor Credit Corporation, a foreign corporation, Appellee, v.Fernan Radke and Estella L. Radtke, Third-Party Plaintiffs, Appellants and Cross-Appellees, Platte Valley Harvestore, Inc., a corporation, Third-Party Defendant, Appellee and Cross-Appellant, A.O. Smith Harvestore Products, Inc., a corporation, Third-Party Defendant, Appellee, 356 N.W.2d 856 (1984).

With the foregoing by way of introduction, I now turn to the “where are they now” portion of the post. I suppose I could write about some of the other participants, but I instead concentrate on only two.

Steve Russell: Not long after Steve wrote the great brief, he left Jeff’s firm when he was recruited to be an Assistant United States Attorney in the Lincoln office. For well over 20 years now, Steve has distinguished himself as one of the three or four best federal prosecutors we have in Nebraska. Tall, good-looking, well spoken but in the language of common people, Steve gets tough cases and almost always convinces the jury to convict. Among other thinks, I particularly respect about Steve is that he is eminently fair to defendants and their counsel. Even if he has an advantage he won’t press it if he believes it would be unfair to do so. He believes in cutting square corners. Yet, he is tough as nails.

Baby Jason:  My writing skills, such as they are, cannot adequately do justice to Baby Jason. So, I will simply quote part of the New York Times article about him that describes his activities about six years after our trial. While you should read the entire account, the beginning of the article reads this way:

A 19-year-old man who had moved to Queens from Nebraska two weeks ago was charged yesterday with killing his 6-day-old son, dismembering the body and then feeding it to a German shepherd he was training as a guard dog, the police said.

Detectives said yesterday that the baby’s crying early Friday morning woke the father, Jason Radtke, who took the infant out of a crib and began to walk him. When the baby suddenly wet him, Mr. Radtke became enraged, the police said, and threw the child to the floor, killing him.

Mr. Radtke is believed to have then dismembered the baby’s body with a razor and left the remains ”in a position to be consumed by the German shepherd,” Capt. John Creegan of the New York detectives said.

I wrote this post in ABQ. That’s where “Breaking Bad” was filmed. By the way, I have long ago concluded that “the Moon is [not]  in the seventh house.” Nor do I believe that “Jupiter [has] align[ed] with Mars.” But, that is probably just me.

Oh, and have a nice day

RGK

My idea of the proper “emoticon” for this post is shown below:

Sentencing a bad cop

I’m going to have a busy day today. Blood tests at the clinic followed by a short meeting with a nurse to discuss the numbers.  Then off to the southwest on United through Denver. But before I leave, I urge you to go over to the Southern District of Florida Blog and read point 3 of news and notes. It describes a bad cop’s sentencing in federal court. This cop falsely arrested a woman. Why?

The local newspaper gives this account of what happened to the victim, Ms Romeo:

Benjamin did it as a favor to Rothstein [a lawyer, banker and fraudster] and Romeo’s ex-husband, Douglas Bates, who was trying to gain the advantage in a custody battle over Bates’ and Romeo’s children. Bates, who had his own law firm, has been disbarred and is now serving five years in prison for his role in the fraud.

Also in court was the couple’s son, Andrew, who has autism. His prescription medication was among the pills that Poole and Benjamin used to set up Romeo’s arrest. State prosecutors later declined to prosecute Romeo because the pills were all legitimately prescribed for her and her son.

“They utilized my autistic son’s medication to pull this off,” Romeo told the judge. “I don’t understand how educated men can abuse their powers so grossly.”

I am not much for beating up defendants at sentencing. The huge majority of the time I merely recite my standard litany on the section 3553 factors to satisfy the Court of Appeals, and exit the bench quickly. Other judges use sentencing to berate the defendant for his or her crimes. That’s simply not my style. But, I’m not saying it is wrong to do so.

In the Florida case, Judge James I. Cohn imposed the maximum sentence (five years), lashed the defendant verbally and then had the ex-cop handcuffed behind his back in the courtroom. The victim and everyone else saw justice being done in a very stark way and the judge made clear that the handcuffs-in-the courtroom routine was intentional.*

All of this brings me to the question of the day? When, if ever, is it proper for the federal sentencing judge to whip up on the defendant (verbally, of course) at sentencing?

RGK

*This case reminds me that there really are bad cops. I know. Duh! While claiming to be a realist, at times I think more like a silly romantic. Oh, well, I have plenty of time to change–for the uninformed, that’s ironic.

A disturbing anecdote about how some in the legal academy treated Professor Chris Fairman when he wrote his serious law review article entitled “Fuck”

A reader of my recent posts could not be faulted if he or she concluded that I have it in for all law professors. That is not true. But if you read this long post, you will find a disturbing anecdote that should give the reader pause about the health of law teaching.

I have enormous respect for those who devote the themselves to teaching the law. If I have a complaint, it is that many law teachers ignore the legal profession and the judiciary. But for those who devote their scholarship to areas that make a difference to the legal profession and the judiciary, the legal academy provides a critical service. Let me mention a few professors for whom my respect is particularly high.

Nancy Gertner retired from the federal district court bench and now teaches at Harvard. Her insights are penetrating and deserve the attention of federal judges and practitioners if only because she is brilliant, has “been there and done that” and pulls no punches when it comes to legal realism and the federal courts.

My law school–the University of Nebraska College of Law–is the proud first home of Roscoe Pound and sports numerous professors whose committment to the practice is evident and very much in the spirit of Pound. Dean Susan Poser‘s scholarship and teaching regarding legal ethics provides one good example. Kevin Ruser, the M.S. Hevelone Professor of Law at the College, and Steve Schmidt (who I had the pleasure of teaching), Associate Professor of Law and Courtesy Associate Professor of Forensic Science, are responsible for the very high quality clinical side of legal education at the College.

A former DOJ trial lawyer, the legendary Professor Mike Fenner at the Creighton Law School has devoted his decades of acclaimed teaching and penetrating scholarship, on evidence and other federal matters, not only to his law students but to lawyers and federal judges alike. Same, same for Pat Borchers. He is a former law clerk to Justice Kennedy when the Justice was on the Ninth Circuit and, after that, Pat was a litigator of important cases in California. Pat, the former Dean of Creighton Law School, is now Professor of law and head of the Werner Institute on conflict resolution at Creighton. Among other things, Pat brings his subject matter expertise on the federal courts to that important new endeavor, an endeavor that is already having a huge impact on federal practice and the federal courts.

But the “superstar” when it comes to helping the federal bar and federal judges is Professor Doug Berman at Ohio State’s Michael E. Moritz College of Law. His blog entitled Sentencing Law and Policy has been the most important contribution a law professor has made to the federal courts in my lifetime. He singlehandedly took a new medium and turned it into an interactive teaching and information tool of incalculable value to solving the real world problems facing federal practitioners and federal judges.

I want to make clear that the reader should not assume that any of the professors cited above agree with anything I have written in this blog. I have cited these scholars as examples of professors I highly respect. They may think I am a jerk and an idiot. That said, let me next turn to turn to the precise point of the post.

Until now, I have believed that law school professors thought of themselves as a community of scholars engaged in the joint enterprise of seeking the truth. I assumed that there was a warm collegiality that fostered investigation into legal subjects that the rest of the world might ignore or find too disturbing to contemplate. I earnestly believed that among this community of scholars that there were no taboos. Intellectual honesty was the only requirement for the law professor and scholar. If the following anecdote is representative (and I fear that it is), my assumptions were dead wrong.

Like Doug Berman, Christopher M. Fairman teaches at Ohio State. He is a full professor–the Alumni Society Designated Professor of Law–and the Associate Dean for Faculty. He graduated Phi Beta Kappa from the University of Texas. After nine years as a high school history teacher in the public schools in Texas, he received his J.D., in 1994, with Honors, including Order of the Coif, from the University of Texas School of Law. Professor Fairman teaches Civil Procedure I and Legal Writing and Analyses to 1L students and Civil Procedure II, Professional Responsibility, and a seminar on ADR Ethics available to second- and third-year students.

Fairman knows his way around the state and federal courtrooms. He was law clerk to the Honorable J. Woodfin Jones, Texas Court of Appeals for the Third District, Austin, Texas (1994-95).  He was a law clerk to the Honorable Fortunato P. Benavides, United States Court of Appeals for the Fifth Circuit, Austin, Texas (1995-96). He was a litigation Associate at Weil, Gotshal & Manges LLP, Dallas, Texas (1996-2000).

According to his faculty page, “Professor Fairman’s scholarly interests can be easily summed up: Words matter.” Professor Fairman first book is entitled Fuck: Word Taboo and Protecting our First Amendment Liberties (Sourcebooks 2009). The book builds on his scholarship in taboo language found in his highly popular law review article, “Fuck,” 28 Cardozo Law Review 1171 (2007).*

Christopher M. Fairman Associate Dean for Faculty; Alumni Society Designated Professor of Law

Christopher M. Fairman
Alumni Society Designated Professor of Law and Associate Dean for Faculty

The reader will recall that I favorably cited Fairman’s law review article in an earlier post. In my view, that law review article was written by an accomplished legal scholar and former practitioner with a proper sense of the real world. After carefully analysing the historical, linguistic, etymological, legal, and other sources, Fairman came to believe that the word “has no intrinsic meaning at all . . . .” I found the ending remarks of Professor Fairman’s article particularly important:

Regardless of its source, when taboo becomes institutionalized through law, the effects of taboo are also institutionalized. If we want to diminish the taboo effect, the solution is not silence. Nor should offensive language be punished. We must recognize that words like fuck have a legitimate place in our daily life. Scholars must take responsibility for eliminating ignorance about the psychological aspects of offensive speech and work to eliminate dualistic views of good words and bad words. Taboo language should be included in dictionaries, freely spoken and written in our schools and colleges, printed in our newspapers and magazines, and broadcast on radio and television. Fuck must be set free.

Having obtained tenure before the article was published, Fairman was proposed for elevation to full professor after the article came out. In that process, Ohio State sends out requests to law professors at other universities inquiring about their views of the candidate. Fairman ran into a buzz saw.

Although his article was the most downloaded article that year on the Social Science Research Network, one silly reviewer said the law review article wasn’t even competent scholarship, much less of high quality. Another law professor known for producing empirical information and analysis regarding the penetration of legal scholarship excluded Chris’s article from the list and analysis even though he was using the Social Science Research Network and the article was the most downloaded from SSRN. The reason? Because it was  “provocatively titled.” Professor Fairman wrote a response to that slight which, in my opinion, revealed beyond doubt that the exclusion was, in my words, stupid and, perhaps, the product of a rank and mean elitism.** Despite all of this, Fairman was promoted. That says positive things about Ohio State.

So, why I have I written this post? Believe it or not, I have written this post because I care deeply about the legal academy. Federal practitioners and judges need law professors to help us. If Professor Fairman’s experience is any indication, a fair number of law professors ought to stop eating their young. If they continue to put obstacles in the path of other young scholars like Fairman, the law schools will become completely populated by professors known by practitioners and the judiciary for their utter irrelevance. That would be disaster.

Update:  Please go and read Scott Greenfield’s piece entitled Teaching Law, for Real

RGK

*I read the article when it first came out. I was particularly interested in the article because of an experience I had with a big law firm in Ohio in the summer of 1971 when I worked as a “summer associate” while also avoiding the draft. I was doing research for one of the partners who, acting for the ACLU, was defending a kid charged with some sort of crime for wearing a tee-shirt in public that read, “Fuck the draft.” I wish I would have had that article in 1971. 

**Professor Fairman rightly asked whether Randall L. Kennedy’s “Nigger!” as a Problem in the Law, 2001 U. Ill. L. Rev 935 (2001) would have been excluded.

“Slippery” Noodles

I love China.

Joan, my wife, was born in Shanghai which is now the largest city by population in the world. Her mother and father had met and married in China during WWII. John was an officer in the Army Air Corps and Florence was a secretary for the State Department. After the war ended, they remained in China and John imported goods from America. Of course, they left when Chairman Mao and the gang came to town.

In the early 1990s, Joan and I traveled to Shanghai. We hired a very experienced guide who spoke English as if she had been born here. She was open about the fact that she had polished her English while in the Chinese Army monitoring American military traffic.

We had a wonderful time, and may have found Joan’s home in the old French Quarter. We parked the car near where the guide thought the home might have been and got out and spread a large old map on the hood of the car.

We soon drew a crowd of friendly Chinese. There were several old people who gave various opinions about whether we had found the home. If we did find the home, it had changed dramatically. It was now a multi-family dwelling that stretched to the street. The front gardens of Joan’s time were gone.

This silk piece hangs in our living room in Nebraska.  It came from Joan's home in the French Quarters of Shanghai around 1947.

This silk piece hangs in our living room in Lincoln, Nebraska. It came from Joan’s home in the French Quarter of Shanghai circa 1946-1949.

Daughter Lisa and her family live in China (Shekou) across the bay from Hong Kong. Lisa and Karel are teachers. Petra, who was born in a Chinese hospital in Guangzhou (formerly Canton), has “her” ayi (阿姨 – āyí) (“aunt” in Chinese) who she loves dearly. This very nice woman (we have “met” her on Skype numerous times), who speaks no English, looks after the kids when Karel and Lisa are gone. As a result, and even though she is not yet five, Petra is picking up Mandarin and a lot of Chinese culture to boot. (Ayi’s grandaughter and Petra are good friends.)

Recently the family went out for dinner at a tiny street cafe near their home. Petra ordered the meal in Chinese for each of the family members. Petra ordered the “slippery”* noodles that she so loves for herself and consumed the meal using chop sticks with no problem. “Slurping” is mandatory.

noodles.

I hope Lisa, Karel and the grandchildren stay in China. There is so much there to learn and the people are wonderful. The “slippery” noodles are good too.

RGK

*“The Chinese like their noodles long and slippery, the better to slurp down noisily.”  The Cook’s Thesarus: Asian (last accessed July 20, 2014).

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