Nebraska plays Miami tonight, and “Ray Rice’s Indefinite Suspension Should Be Reversed on Appeal”

Photo credit: Ted Kirk/Lincoln Journal Star. Nebraska's Jeff Smith has a two-point conversion pass from Turner Gill batted away in the fourth quarter against Miami in the 1984 Orange Bowl.

Photo credit: Ted Kirk/Lincoln Journal Star. The Huskers’ failed two-point play in the fourth quarter against Miami in the 1984 Orange Bowl.

Some of you are old enough to remember when Tom Osborne went for two, seeking a win against Miami rather than a tie. Had Dr.Tom simply kicked the extra point, his Huskers would have been national champions that year. But Osborne did  not think or play that way. The Huskers went for two points, a defensive back from Miami swatted the short pass away from the Husker receiver, and Miami won. If sports can teach young people, this was one of the greatest teaching moments of the modern era.

Tonight, the Huskers play Miami again here in Lincoln, under the lights and on national television. Our little town in our little state is all a twitter. And, that, of course, brings me to Ray Rice.

I love football. I love high school football.* I love college football. I love the NFL. I don’t care much about Ray Rice or whether he will win his appeal of his indefinite suspension. But, I do care about good legal writing.

Levi S. Zaslow

Levi S. Zaslow

Levi S. Zaslow is a young lawyer in Maryland. He has written a terrific piece explaining why Ray Rice should win his appeal of the indefinite suspension for beating his wife after he was first punished by the Commissioner of the NFL with a two game suspension. See Levi S. Zaslow, The Legal Appeal of the Ray Rice Appeal: Despite a Broken Process, Ray Rice’s Indefinite Suspension Should Be Reversed on Appeal (September 18, 2014). It is very nice piece of legal writing about due process and the strange world where the NFL and the League’s detractors confront the realities of labor and employment law. Go read it, and, go Huskers!


*As I have mentioned before, one of the best moments of my life was when Dr. R. Keller Kopf, then 18, ran onto the turf at Memorial Stadium while pictured on the big screen at the beginning of the Class A state football championship. As the “small tight end,” Keller made me proud. I knew how hard he had worked to build his body and mind to a point that would allow him to play in such a game. The perseverance he learned in that endeavor served him well later on, and serves him well even now.

R. Keller Kopf, Institute for Land, Water & Society, Charles Sturt University, New South Wales Australia

R. Keller Kopf, Institute for Land, Water & Society, Charles Sturt University, New South Wales Australia


Two implications for older men from the lead paint theory regarding prison sentences and supervised release


Design and Image Credit: Stantasyland and Cafepress

Design and Image Credit: Stantasyland and Cafepress

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Reverse trigger warning: I don’t have Ebola

Yesterday, I had my last blood test prior to my PET scan scheduled for next Tuesday. I am done with the chemo infusions until we see the results of the scan next week, on Thursday. My blood counts are low, and that is to be expected. There is a small problem, however,

At the most inconvenient of times, like having lunch with the clerks at the Mexican joint across the street, my nose begins to spurt large quantities of blood. I have been taking Xarelto to thin my blood to make sure the blood clots I developed in Sioux City last year don’t come back.  While the bloody nose problem is not new, it has gotten far worse this last month. And now with an Ebola patient at the University of Nebraska Medical Center, most people are not particularly sanguine (pun) about being around a guy who has a tendency to spray blood all over. Hell, I cleared out the Mexican joint when the law clerks and wait staff went running for large paper napkins to staunch the flow and mop up the mess. That made me feel bad so I had a Margarita.

Anyway, I don’t have Ebola (so far as I know). So, if you appear before me at sentencing or the like, remember the world greatest philosopher, Bobby McFerrin. Don’t worry, be happy.



The Supreme Court takes a civil case on the sanctity of jury deliberations

As I have said before in these pages, I have interviewed each jury after each jury trial I have conducted since I started as a Magistrate Judge way back 1987.  My intent was to learn how I could do a better job, and also to help the jurors decompress. I always end the interview by telling the jurors that they may speak with the lawyers if they wish to provide counsel with a critique of the lawyers’ performance. I caution the jurors not to speak about the substance of the deliberations; that is, what the jurors said or did as they deliberated. I avoid that information as well when I interview the jury.

The Supreme Court has now taken a case from the Eighth Circuit that broadly speaking raises the question of what information lawyers are entitled to know regarding what was said during jury deliberations. The case comes from the Eighth Circuit and was written by Judge Bye and concurred in by Judges Wollman and Colloton.  Anyone who knows about the Eighth Circuit knows that the panel was about as diverse ideologically speaking  as one could draw.

The plaintiff’s lawyers wanted to use a post-verdict affidavit from one juror about the statement of another juror during deliberations. During the deliberations, one juror said that another juror revealed that her daughter has been at fault in a fatal car accident. “She related,” so said the affiant said, “that if her daughter had been sued, it would have ruined her life.” Other jurors echoed her statement, he said.

Judge Bye’s opinion is clear and well written.  Basically, Judge Bye said that Federal Rule of Evidence 606(b) means what is says–you don’t get to use information from jurors to get after the verdict unless the exceptions apply.  None did. That was true even if the statement was intended to prove that the juror was not forthcoming during voir dire. The Supreme Court has taken the case for review. See Adam Liptak, Challenging the Privacy of Statements Made During Jury Deliberations, New York Times (September 15, 2014) (hat tip to How Appealing). The Court apparently took the case because of a split in the Circuits. The Ninth Circuit, and perhaps others, held that statements which tend to show deceit during voir dire are not barred by Rule 606.  On the other hand, the Third Circuit in an opinion written but then Judge Alito and the Tenth Circuit went the way of the Eighth Circuit.

I am betting that the Supreme Court affirms the Eighth Circuit. The fact that Justice Alito sided with the Eighth Circuit’s reasoning when he was a Third Circuit judge provides extra “umph” to those who would interpret Rule 606(b) strictly. What do I think is the correct result?

I think Judge Bye got it right. Moreover, I have a visceral reaction against lawyers using post-verdict statements from jurors. What do you think? In commenting, please also tell me whether you make it a practice to interview jurors after the verdict and tell me whether you learn anything of value?


There is news and then there is The New York Daily News

Through How Appealing at 9:44 a.m. today, I see the New York Daily News is savaging federal Judge Frederick Block in what the paper hypes as an “exclusive.” While handling a civil jury trial, the judge was in the private hallway behind the courtroom and adjacent to chambers, and was talking to Judge Weinstein in the hallway. Judge W asked Judge B how things were going, and Judge B replied something like,”‘I’m OK, I’m doing a little stupid trial’” as someone else walked by the two men. Block realized after the fact that the passerby was one of his jurors.

The judge took the bench and told lawyers that he had committed a “faux pas.” After the juror was interviewed, and it was learned that he or she heard the remark but had not repeated it to the other jurors, the juror was excused and the remaining jurors allowed to deliberate. The case was apparently both little and stupid. About 15 minutes following the commencement of deliberations, the jury returned a verdict for the defendant. Among other claims, the plaintiff had asserted that his former employer had treated him badly because, so says the New York Daily News, “the ‘family meal’ prepared for employees contained sliced ham and pancetta, which he couldn’t eat because he’s Muslim, and the chef refused to accommodate his religious diet.” Oh, the horror!

Handling the physical movement of jurors, particularly given the poor design of many courthouses, is always nightmare for a judge and court staff. The first jury trial I had in Lincoln required a mistrial because a police detective shot his mouth off in front of all my jurors while they were walking in the private hallway to go lunch and the detective, who was a trial witness, was passing by them while talking with an AUSA. Stuff happens in the real world and you would think the New York Daily News could and would recognize a non-story from a real one.*

I don’t know Judge Block, and have no opinion whatever about his abilities as a trial judge.** On the other hand, the New York Daily News ought to learn what is and is not news.


*Apparently, the paper and the judge have a history. In the instant article, the paper recounts gleefully that it has previously referred to Block as “Judge Blockhead” because he “ridiculed federal prosecutors during a racketeering murder trial for seeking the death penalty against a drug kingpin.”

**For what it is worth, the Almanac of the Federal Judiciary,  a subscription service that costs a lot of money, interviews lawyers throughout the country to get their candid take on each federal judge about whom the lawyers have experience. Anonymity is promised to the lawyers. The several page write-up that follows is then sold to other lawyers so they can get detailed insight into each federal judge before whom they may appear and about whom they are unfamiliar. Overall, here is what the Almanac most recently wrote about the judge: “Lawyers interviewed said Block is experienced and knowledgeable.” I also know that the judge has written a candid book entitled, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.  David Lat and Scott Greenfield give the book (and Judge Block) favorable reviews.

Typhoons and tornadoes

Typhoon Kalmaegi (the Korean word for seagull) shut down Hong Kong, and Lisa and Karel who live right across the bay felt the impact. In fact, they apparently captured a rare event in a photo. From their high-rise apartment, they took the following pic seemingly showing a tornado floating down from the typhoon’s storm clouds.

This photo was taken from Lisa and Karel's 16th floor apartment in Shekou.  It shows a very unusual weather event.  A typhoon and a tornado.  Schools were closed. By the way, if it looks like there are trees on the building in the forefront of the photo that is because there are trees on top of that building.

This photo was taken from Lisa and Karel’s 16th floor apartment in Shekou. By the way, if it looks like there are trees and bushes on the building in the forefront of the photo that is because there is rooftop garden on that building. In the summer, it is pretty.



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