A “Rich” life

We all suffer travails. On balance, however, most of us, me especially, have rich lives.

My life is rich in intellectual stimulation. For example, Professor Akhil Reed Amar recently delivered the Chautauqua Institution’s 10th annual Robert H. Jackson Lecture on the Supreme Court of the United States.  The lecture, entitled “Robert Jackson and the Judicialization of the Judiciary,” was fascinating, insightful and a crowd-pleaser. You can watch it all here on YouTube: https://www.youtube.com/watch?v=-OR0IFnKWHA&list=PLZQsNvvrHNbT1c5AGYRdedEKTG5qjamvx. It is lectures like this that make my life especially rich in the world of ideas.

Then there is the joy of family like Petra traveling to Hong Kong with her mother to see the doctor and learn how the yet to be born baby is doing and proudly filling out her own her own travel papers before she boarded the ferry between the PRC and Hong Kong.

Petra filled out her own papers before boarding the ferry. She prints in big block letters much like her goofy grampa.

Petra filled out her own papers before boarding the ferry. She prints in big block letters much like her goofy grampa.

Petra and dolly on the ferry to Hong Kong

Petra and dolly on the ferry to Hong Kong.

Petra in the alleyway shops in Hong Kong

Petra in the packed and bustling alleyway shops in Hong Kong.

That’s it. There is no more, but that’s plenty.

RGK (Rich)

It’s time to rewrite or junk entirely 18 U.S.C. § 3553(a)

The pendulum swings.

It is now fashionable to be “soft on crime” rather than “hard on crime.” This is largely because being hard on crime has become ridiculously expensive. I get that, and, in fact, agree with it. However, before we provide group hugs to the special little snow flakes (each one is unique don’t you know) who will reside in our federal prisons, we ought, at least, to know what goals we seek to achieve when we send them to federal prison.

From 18 U.S.C. § 3553(a), here are what judges are supposed consider now regarding the goals of sentencing:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.1

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.

If  you believe that federal judges are like Platonic guardians imbued with the powers that only the elite can possess, these goals are perfect. Essentially, the federal judge is told to do the right thing. The Supreme Court’s line of cases (e.g., Booker) punctuates that point by making the Guidelines irrelevant for the sentencing judge inclined to sentence without meaningful external constraint. On the other hand, if you believe, as I do, that federal sentencing judges require specific direction from Congress because (1) that is the democratic way and (2) federal judges are no more smarter when it comes to sentencing than the reasonably well-informed lay person, then it is clear that we must junk or rewrite section 3553(a).

In sum, I don’t care whether section 3553(a) is rewritten or junked entirely. If Congress elects to rewrite the statute, so long as the statute sets consistent sentencing goals, I don’t care what goals Congress picks. If Congress junks the statute (or leaves it unchanged), and, by so doing, proclaims that we federal judges are to pick the goals that we think best, then that’s fine too. I just want to know what I am supposed to do at sentencing. Is that too much to ask?

On regional jets and wheelchairs

I live in “flyover” country. That means two things when I book a flight out of Lincoln. First, I will be flying on a “regional jet” which is airline-speak for small, cramped, and run by a company that is nearly bankrupt but holds on by supplying the big carriers with passengers from “flyover” country” while pretending to be part of the big carrier. Second, you will always find that the “regional jet” parks at an arrival gate that is far, far away from the center of the airport. And such was our experience this time as Joan and I flew to Denver and then on to ABQ (Albuquerque) and back.

One of the good things about flying a regional jet is that the air crews are often composed of decent people rather than the devils in human form featured in the old Saturday Night Live bit, “Total Bastard Airlines.” This time the pilots were funny and informative–and you could even hear them over the audio system.

For example, despite our late departure out of Denver returning to Lincoln the captain demanded that we refrain from calling his airplane a “toy.” He bragged that he could fly as fast and as high as a Boeing 737 and his plane was more stylish. Despite our late departure, he promised that we would be on time (we were supposed to arrive at midnight). As the pilot predicted, a “screaming tail wind” pushed our little space capsule to 600 miles per hour over the ground and allowed us to get to Lincoln exactly as scheduled. (Will someone take it real slow and explain to me once again the difference between “air speed” and “ground speed” and why I should care?) This triumph occurred despite the fact that, as our captain warned, the landing might be a abrupt “’cause we will be using the short runway–the one that’s not all torn up.” He also instructed us to blame the first officer for any herky-jerky landing complaints.

Photo credit: Raihan Ahmed pursuant to Creative Commons Attribution-Share Alike 3.0 Unported license. We flew back to Lincoln on a fifty seat Embrarer ERJ  145 with 12 passengers braving the experience. The photo shows an Embraer ERJ 145 preparing to take off from its hub Shahjalal International Airport in Bangladesh.  The fact that the Brazilian built Embraer is used by airlines in Bagladesh is certainly a comfort.

Photo credit: Raihan Ahmed pursuant to Creative Commons Attribution-Share Alike 3.0 Unported license. We flew back to Lincoln on a fifty seat Embrarer ERJ 145 with 12 brave souls aboard. The photo shows an Embraer ERJ 145 preparing to take off from its hub Shahjalal International Airport in Bangladesh. The fact that the Brazilian-built Embrarer is used by airlines in Bangladesh is comforting.

As for the flight attendant, and despite the fact she was obviously exhausted,  she was pleasant and talkative. She told us she was from Georgia and asked us to forgive her heavy accent. She was clearly tickled by the pilot’s banter. Before we got to Lincoln, she asked over the intercom if anyone knew where the nearest “Jimmy John’s” to her hotel might be found. It turns out that there was one near the Holiday Inn where the crew stayed, and she beamed with delight. It was then that I knew the flight crew had their priorities in the right place. “Freaky fast.”

I turn next to the second part of this post. Although to be honest, both parts are related. I just don’t how.

The Denver airport is huge. It is populated with young and old people in perfect health. That is true even for old folks. It is not unusual to see a perfectly tanned very old man in spandex, running shoes, a huge backpack with water bottles hanging off it, fast-walking through the airport and eschewing the “people walkers.” I hate those guys. Especially the ones with the “arm candy.” (If she is reading this, that’s not to say that you, Joan, aren’t “arm candy.” It’s just . . . .)

Before returning to Denver, I decided that I needed a wheel chair when we got to the mile high city. I’m still short of breath and unsteady on my feet from the chemo and the stint in the hospital. Our regional jet was scheduled to use a gate that was at the very far end of the airport, and our Lincoln gate had not yet been assigned. What was worse, we were going to have to exit on the tarmac, walk off the tarmac to a long corridor underneath the main concourse and climb a set of stairs to the main level. There we would find out our next gate. I didn’t think I could handle that trek.

As I exited the plane, and limped down the stairway (festooned with a tarpaulin topped with fringe), I noticed the other passengers staring at me. I could read their minds. Surely, I must be faking it. Even Joan seemed to melt away, distancing herself from me much like you would distance yourself from a traveling companion who displayed a neon sign that flashed “Kiss me, I’m a leper.”

Averting the eyes of my fellow travelers, I climbed aboard the wheelchair and the very nice man assigned to the task pushed on. In truth, I am glad I called for the wheelchair. Nonetheless, it was a humiliating experience. “Bogus” requests for wheelchair assistance have become such a problem that the Wall Street Journal ran a feature article on the subject. See Long Lines Lead to Rise of Wheelchair ‘Miracles’, Wall Street Journal (updated April 5, 2013) (“At Los Angeles International Airport, airlines and companies that provide wheelchair service estimate 15% of all requests are phony, said Lawrence Rolon, coordinator for disabled services for Los Angeles World Airports. Airport officials estimate nearly 300 wheelchair requests a day are bogus. ‘It’s just a big mess,’ Mr. Rolon said. ‘Abusers are really impacting the operation.””) As I glided away on my wheeled magic carpet, the word “schmuck” rang continuously in my ear.


So, that’s my riff on regional jets and wheelchairs.  Like the Indians used to say (before we killed most ‘em off or consigned them to reservations that are the perfect example of hell), “walk [or in my case wheel] a mile in my shoes” if you desire to know me. On second thought, don’t bother.










Update on Baby Jason


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!

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 things 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


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?


*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.


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