Merciless

Yesterday, I linked to SL&P and asked that you read Doug Berman’s post regarding President’s Obama’s newly announced policy, heralded by General Holder, to expand clemency for nonviolent drug dealers. Today, I write about my one utterly depressing experience with DOJ and the commutation process. I also criticize President Obama and Attorney General Holder for their tardy response to a national disgrace.

Preface

I loathe “crack.” I suppose that hatred comes from seeing up close the destruction of black communities caused by that cheap and effective drug. Having an aging and poor crack whore hang herself in a cell adjacent to the courtroom where I just pronounced a long sentence upon this poor woman perhaps provides a context for my strong views. Bestowing mercy on those predators who dealt drugs to that gal, even ones who are “nonviolent” (a term I find misleading), rubs me wrong and strongly so. But I also understand why Presidential clemency helps our criminal justice system dispense a needed degree of mercy by leavening sentences that now appear too long even for those who are unquestionably criminals whose behavior has done great harm.

Stephanie Lomax, now known as Hamedah Ali Hasan

In 1993, after a jury trial, Hamedah Ali Hasan was found guilty of the following Counts in the Superseding Indictment: I (conspiracy to distribute and possess with intent to distribute cocaine), IV-VIII (distribution of and/or possession with intent to distribute cocaine), IX (interstate travel in aid of racketeering), and X (use of a communication facility in furtherance of a conspiracy). She committed the offenses between 1988 and 1991.

She had no criminal history and she had no misconduct while on pretrial release in 1992 and 1993. She had two children and was pregnant with a third at the time I sentenced her. Hasan, who is black, was fleeing an abusive relationship when she moved from Oregon to Omaha to operate a drug business with two relatives. She was in her early twenties.

Hasan was held responsible for 5.9 kilograms of cocaine base, placing her at base offense level 40. She received a three-level upward departure for her role as a manager in the conspiracy.  On October 20, 1993, I sentenced Hasan to the following concurrent terms of imprisonment: Counts I and VII — life; Counts IV and V — 480 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.  I wrote a very long opinion explaining why I felt bound to impose the life sentence even though I thought it was far too harsh.

On November 1, 1994, Amendment 505 to the Sentencing Guidelines eliminated base offense levels 42 and 40 from the drug quantity table in U.S.S.G. § 2D1.1. The amendment was made retroactive. In 1998, Hasan filed a motion to reduce her sentence under 18 U.S.C. § 3582(c)(2)[1] in light of retroactive Amendment 505. Hasan also asked the Court to consider her post-sentencing rehabilitative conduct during her imprisonment as grounds for a downward departure under U.S.S.G. § 5K2.0. In resentencing Hasan in 1999, under § 3582(c)(2), I applied Amendment 505 and reached a new total offense level of 41. I also departed 8 levels downward to offense level 33 based on her post-sentencing in-prison rehabilitative conduct under U.S.S.G. § 5K2.0.

I, therefore, granted Hasan’s motion to reduce her sentence and sentenced her to the following concurrent terms of imprisonment: Counts I, IV, V, VI, VII, and VIII — 144 months; Count IX — 60 months; and Count X — 48 months. The Eighth Circuit initially affirmed the sentence; however, the panel’s opinion was vacated and the case was heard en banc. United States v. Hasan, 205 F.3d 1072, 1075-76 (8th Cir. Feb. 29, 2000), vacated, 213 F.3d 1049 (8th Cir. 2000). The original panel  majority concluded the opinion stressing Hasan’s extraordinary rehabilitation in prison, and stated, “Although the Government does not argue Hasan’s rehabilitative efforts are not extraordinary, we agree with the district court that they are. We thus affirm the district court’s resentencing order.”

There was never any doubt that Hasan had been rehabilitated.  The evidence presented at my hearing and otherwise proved her rehabilitation beyond question. It is accurately itemized in detail in her counsel’s 2010 letter supporting the second application for commutation which may be found here on pages 8 through 11. So far as I know, no government official has ever disputed any of this evidence.

The en banc Eighth Circuit Court concluded that the I abused my discretion in granting a downward departure under § 5K 2.0 in a § 3582(c)(2) resentencing. United States v. Hasan, 245 F.3d 682, 684-85 (8th Cir. 2001). The Eighth Circuit explained that a district court under the relevant circumstances must make two determinations: (1) the sentence that it would have imposed had the new sentencing range been the applicable range at the time of the original sentencing; and (2) whether to give the defendant the benefit of that reduced sentence. Id. At step (2) the district court may consider any applicable factors listed in 18 U.S.C. § 3553(a) only insofar as it considers where within the new guideline range to sentence the defendant; § 3553(a) may not serve as a mechanism for a departure below the guideline range. Id. at 685. Therefore, the Eighth Circuit concluded that I abused my discretion in departing below the new guideline range under § 3553(a) because a downward departure was not granted at the original sentencing. Id. at 686 (discussing U.S.S.G. § 1B1.10). Since post-sentencing conduct could not have been a factor at the original sentencing, the Eighth Circuit stated that the below-the-guideline sentence could not stand. Id. at 686-90. The court reversed my grant of the downward departure motion and remanded the case for imposition of a 324-month sentence. Four judges dissented, stating that the earlier panel decision explained their reasoning. Id. at 690-91. Hasan’s petition for certiorari was denied. Hasan v. United States, 534 U.S. 905 (2001).

On remand in 2002, and pursuant to the mandate of the Circuit, I resentenced Hasan to the following concurrent terms of imprisonment: Counts I, IV, V and VII — 324 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.

Several years later, Hasan filed motion, and a supporting brief, relying on the then recent retroactive amendments to the existing crack cocaine sentencing guidelines set out in U.S.S.G. § 2D1.1 as well as U.S.S.G. § 1B1.10. The government filed no brief in opposition. I recused himself from that case.  On July 8, 2008, I wrote that:

ORDER as to defendant Hamedah A. Hasan Hamedah Hasan has filed a motion to reduce her sentence due to the amendment of the crack cocaine Guidelines which have now been made retroactive. I am no longer impartial when it comes to Hamedah Hasan. I asked the President to commute her sentence* and I appeared in a film** about her, urging that she be given relief. More recently, I was advised by the Justice Department that the commutation request was denied by the President, and I expressed my disgust about that decision to her lawyer.*** Therefore, IT IS ORDERED that I recuse myself from Hamedah Hasan’s case . . .

The case was reassigned to Judge Smith Camp.  Although initially agreeing that Ms. Hasan’s sentence ought to be reduced, Judge Smith Camp ultimately denied the motion on June 24, 2009 concluding that the law was against Hasan because of the highly intricate way the statutes defined “original sentence” for purpose of determining whether the amendments applied. Judge Smith Camp’s decision was correct in all particulars, although her heart was certainly not in it.

The second application for clemency followed on or about February 11, 2010 and a national campaign was begun to free Hasan. See, e.g., here (scroll down). So far as I know, that clemency application was never ruled upon.

On November 7, 2011, and applying the 2011 amendments to the “crack” Guidelines, and based upon the government’s stipulation, Judge Smith Camp reduced Hasan’s sentence of 324 months (my 2002 sentence compelled by the en banc opinion of the Court of Appeals) to 262 months. With credit for good time, Hasan was released a few minutes before 9 a.m. on Feb. 7, 2012. See here for a poignant account of that release. She had served between 18 and 19 years in federal prison having convinced everyone with knowledge that she had been fully rehabilitated long before. The child that Hasan gave birth to in prison was nearly an adult. The clemency provisions of the Constitution and our laws on clemency had failed Hasan and the rest of us. Her treatment was merciless rather than merciful.

President Obama and Attorney General Holder

It is worth remembering that clemency is entrusted to the President under the Constitution. Article I, Section 2, Clause 1 of the Constitution. (The President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”) Clemency is not some incidental matter found in some long forgotten phrase in some dusty statute.

President Obama and Attorney General Holder have known for a long time that the clemency process was a sham.  For example, in 2010, Margaret Love, former U.S. Pardon Attorney (1990-1997), warned President Obama and Attorney General Holder that “To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been ‘drained of its moral force.'” Margaret Colgate Love, THE TWILIGHT OF THE PARDON POWER, 100 Northwestern University, School of Law, Journal of Criminal Law & Criminology, 1169 (2010). Ms. Love asked: “Why has the president’s pardon power essentially ceased to function?”**** She provided objective and detailed answers to that question. Until this week, President Obama and Attorney General Holder ignored the red flags and did nothing.

Why do they act now?  I have my own cynical speculations, but they are only speculations. What I do know is this:  President Obama and Attorney General Holder deserve no credit for doing the right thing at this late date. The federal criminal justice system has been sullied and harmed by their sloth-like approach to this pressing national problem of Constitutional dimensions. They deserve no praise. On the contrary, they deserve the same merciless treatment that Hasan received. It is time for them to shut up, stop crowing, and get on with fixing the problem once and for all.

RGK

*In 2003, I advised the Pardon Attorney that I vigorously supported the clemency application of Hasan. However, that application was denied by the Bush administration.

**I appeared in Reverend Melissa Mummert’s 2008 award winning documentary “Perversion of Justice” where I decried the failure to release Hasan. As the film documents, the title “Perversion of Justice” are my words. The link provides a short version of the documentary.

***That lawyer was Korey Reiman, whose young head is as bald as my old one. Korey began to help Ms. Hasan as a law student and continued to assist her throughout the nearly 20 years that followed. Korey makes me proud to be lawyer.

****For clemency statistics for each President, see here.

29 responses

  1. Judges could have stopped the problem by speaking out and refusing to sentence people. Oh yes, we will follow the law, they all say even if we don’t agree with it. That thinking deprives the judge of the option of doing justice. Fairness falls by the wayside. Of course, if the only people selected as judges are those who agree with the law, then the sentences will remain draconian. It’s a subtle form of genocide, designed to keep the poor, mostly black, in jail and prohibit them from participating in life. I had choice but to sentence sounds like what some Germans said when they turned on the gas.

    Now, how did this happen. Let’s return to basic civics, which we all know only scratches the surface when it comes to what really goes on. Citizens elect legislators. Most citizens don’t vote, even if they are registered to do so and even if it wouldn’t be difficult. The ones who do prefer the status quou. They elect their own kind, some of whom want to preserve their status, assuring their constituencies that there will be order. They run on platforms stressing longer sentences and more law enforcement. Then they pass bills containing long sentences which will provide jobs in jails, courts and law enforcement, rather than schools hosWith the aid of willing executives, they appoint prosecutors and judges to carry out their plans.

    • Lorin,

      I suppose I do share blame because as you point out there is a bit of “the law made me do it” in my long sentencing opinion. I could have departed, but honestly think that if I had done so at the time of sentencing (1) I would not have been justified in doing so under the prevailing law; and (2) the sentence would have been reversed. For what it is worth, I just carefully reread my original sentencing opinion with your comment in mind. I still think I did the legally correct thing. Whether what I did was moral, is quite another but very important question. As I have said before, most of the time I think my job requires me to do law and hope that justice follows.

      All the best.

      RGK

    • Tyranny is “the exercise of power beyond right.” John Locke, Second Treatise of Civil Government § 199 (1695). James Madison echoes this understanding, in observing that

      …preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are
      governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.[1]

      Though concurrences by the Framers and revered philosophers read like a Brandeis brief, the pithiest formulation was that of Christopher Hitchens: “The essence of tyranny is not iron law. It is capricious law.” Christopher Hitchens, “I Fought the Law,” Vanity Fair 70 (Feb. 2004). The discretion of the judge “is the first engine of tyranny,” 4 Gibbon, The History of the Decline and Fall of the Roman Empire 153 (6th Am. Ed. 1830) (1780), which is why the Framers and their British forebears worked so hard to limit judicial discretion.

      If Article III judges were doing their jobs in the way the Framers intended, they would give this instruction to every jury, civil and criminal:

      It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.[2]

      The right to a trial by jury preserved by the Seventh Amendment is that which existed at common law at the time the Amendment was adopted. Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). In 1794, even in the rarefied air of the United States Supreme Court (which was a court of original jurisdiction for certain classes of cases and, technically, still is), a civil jury was understood as being ultimate master of both fact and law. Georgia v. Brailsford, 3 U.S. at 4.

      To the Framers’ generation, the right to a jury trial, with one’s peers deciding both the facts and law, was a sacrosanct privilege of citizenship: they fought a revolution to secure it; several Framers refused to sign the Constitution because it did not adequately preserve it. Justice Rehnquist drives this point home: “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343, (1979) (Rehnquist, J., dissenting).

      Whereas the politician has to appear tough on crime to get elected, the jury stares into the face of crime. In a marijuana-related criminal prosecution, you likely would have a jury in which two-thirds or more have indulged. Whereas the judge is and really ought to controlled by the mete-wand of the law, it is “the most transcendent privilege which any [English] subject can enjoy, of wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 4 Wm. Blackstone, Commentaries on the Laws of England 379 (1765).

      If I were on the jury, I would have the discretion to say that the folks upstairs are crazy, and vote to acquit like the Zenger jury did. And that is where the power ought to be: in the hands of your bosses. If tyrannical judges had not usurped the legitimate authority of the people in the first place, there would be no need for judges to whinge over these obvious injustices.

      ENDNOTES:
      [1] James Madison, Address to the General Assembly Of the Commonwealth Of Virginia (undated), reprinted in 2 James Madison, The Writings of James Madison (1783-1787) at 122-23.
      [2] Georgia v. Brailsford, 3 U.S. 1, 4 (1794).

    • Denise,

      This post took no courage. I don’t care if annoy the President (Republican or Democrat) or his or her Attorney General. In Nebraska, however, we have had a history of good and decent (and tough but fair) US Attorneys. Same same with their AUSAs. I do care about annoying Nebraska federal prosecutors because on balance they cut square corners.

      That said, I appreciate your kind remarks. All the best.

      RGK

  2. But…but….what about Ford’s pardon of Nixon? Or Bush’s pardon of Casper Weinberger? Or Clinton’s of Marc Rich? Or Bush’s commutation of Scooter Libby’s sentence? Weren’t they justified on grounds of compassion for the grave injustices which the system imposed on them where reluctant judges reluctantly had no choice? The pardon power is alive and well, no?

    Oh right, I forgot, they were rich and white and powerful and well-connected. The rest of you can spend the rest of your lives in prison for selling or using drugs. And circuit courts will always be around to make sure that compassionate district judges toe the line.

    A brilliant and courageous post, Judge Kopf. Thank you. And thank you for the link to the Love article.

  3. A passion for liberty must go hand in hand with the understanding that the judicial process is imperfect. That is why clemency exists, and why it is so important it is written into our Constitution. The Great Emancipator, Abraham Lincoln, is a sharp contrast to the current atmosphere:

    http://www.mrlincolnswhitehouse.org/inside.asp?ID=226&subjectID=3

    Given the fact that modern presidents are in charge of a nation of almost 314 million people. compared to Abraham Lincoln’s 31 million in 1860, one would expect a ten-fold increase in the number of pardons. Abraham Lincoln (mostly personally) pardoned 343 people.

    George W. Bush pardoned 189.

  4. SLC,

    Don’t you wish for another Abe? A real lawyer, with sterling political judgments and even better character. That’s why I treasure my bust of President Lincoln (sculpted by a real former lawyer) that sits in my office (wearing a PBR cap).

    All the best.

    RGK

    • Personally, I’d settle for more federal judges displaying a scintilla of personal character. Sadly, the few good judges–who understood and respected the limitations of the office (need I mention Standing Bear?)–we had are gradually dying off (need I mention Judge Arnold and the famous Anastasoff decision?), replaced by partisan hacks who solicit the job for the tyrannical power they believe it invests them with.

      The judiciary has devolved into a detestable institution, so besotted by power that they are willing to bless decisions that even offend Russian jurisprudence under Vladimir Putin. About 99% of federal judges are either Jerry Sanduskys who sodomize the Constitution in plain sight, Mike McQuearys who stand by in silence because they don’t have the character to speak, or Joe Paternos who actively cover up the sins of the Sanduskys.

      Judicial courage is a rare commodity, indeed. Would it be that we could have a few Abe Lincolns on the bench!

      As Gandhi said, you must be the change you want to see in this world. For those judges out there reading this, I challenge you to man (or woman) up and show some ‘nads for a change.

  5. Lets review:
    US Attorney in Nebraska prosecutes case. Seeks upward departure-
    US Attorney in Nebraska wants even more draconian sentence so appeals your sentence and asks for hearing en banc-
    Eighth Circuit en banc agrees that Ms. Hasan should receive even more prison time.-
    U.S. Supreme Court refuses to get involved.-
    Federal judge in Nebraska refuses to reduce sentence- agreeing with US Attorney who opposed reduction-
    President Bush and his administration refuse to grant clemency –
    June 1, 2011 A.G. Holder testifies in favor of making Fair Sentencing Act of 2010 retroactive-
    April 21, 2014, Obama administration announces major clemency reform, which may favorably impact thousands.-
    April 24, 2014 You harshly criticizes only President Obama and A.G. Holder stating they should receive merciless treatment. (And praises all who live in Nebraska).

    Not your best day.

    • Vince,

      Oh, Please!

      At least I didn’t go back to Clinton and the Marc Rich pardon that Holder facilitated. For Christ’s sake, read the former Pardon Attorney’s law review article that I cited. It gives a good historical summary of how clemency got good and screwed up by both parties.

      This is not about me playing stupid partisan political games. It is about a sitting President and his AG knowing there was a horrible problem and failing to act promptly.

      So, there, my friend. All the best.

      RGK

  6. Either we’re a nation of laws, or we’re a nation of men. The former requires judges to rule in accordance with what the law says, not in accordance with what the judge thinks the law ought to say, regardless of all the good reasons for thinking so, and even if the law drives the judge to an absurd ruling.

    Of course the judge can, and should, rail against the absurdity and inveigh against Congress to correct the matter, but that absurdity is a political decision that only We the People can decide through our legislators. Judges cannot rewrite the law from the bench without destroying the law and converting us from a Rule of Law nation to a Rule by Law nation.

    Within that, it’s utterly idiotic to have a sentencing “guideline” that’s mandatory. I trust a judge exercising case-by-case discretion in sentencing much more than I trust a “guideline” that’s so specific and so mandatory that the Court Deputy can simply run a spreadsheet and printout the answer for the judge to read to the court. Neither felons, nor the felonies they commit, are cookie cutter copies.

    Have sentencing guidelines, certainly; there’s nothing wrong with helping a judge clarify his thinking. But they should be guidelines only, and it should be impossible to appeal a sentence on the basis of the judge…deviating…from them. A sentence is just for the particular case, or it is not, and that’s the only legitimate basis for appeal.

    Eric Hines

  7. As I was reading this post and Ms Love’s article, it reminded me of this sidenote. We were sitting on 12 years in 2000, won the panel decision 2-1 then the 8th Circuit vacated it and set it for en banc argument. (Of course i wasn’t the one sitting in prison so ‘we’ probably is misplaced). As we were awaiting the en banc argument the press was coming out about Clinton was going to commute sentences.
    We discussed filing a petition, but the pardon rules said nothing could be pending in Court, and what did we petition for? “Hey Mr. President, just in case we lose the en banc can you commute this 12 year sentence to a 12 year sentence?”
    President Clinton ends up pardoning some people who did not have the facts for pardon Hamedah had. Months later the crazy 8’s reverse.
    I regret not asking, but back then I thought I was supposed to follow the rules when it came to such matters.
    A lot of people worked very hard to get a just result on this case, and it fell on deaf ears during 43 and 44’s terms.

  8. In the Hassan case, did the prosecutor recommend the application for pardon? Not sure what the new system is going to be, but currently it seems (based on the info that came out in the Clarence Aaron case), prosecutors seem to have some kind of informal veto.

    • On the first application (filed in 2002, I think) I recall asking the U.S Attorney for Nebraska to join. As I recall, they just ignored me. I do not know if they conveyed their thoughts to the pardon attorney directly or not. I might ask the AUSA next time I see her as I’m curious also.

  9. TF,

    I do not know the answer to your question. The “local prosecutor informal veto” idea I have heard before. However, I have also heard that such a veto is not always followed. Perhaps Korey knows as I don’t.

    All the best.

    RGK

  10. Judge:
    I am someone who is 1) extremely conservative re: law and order issues, and 2) has never practiced in federal court. Nonetheless, I respectfully suggest that the problem inherent in this case (and others like it) lay in the Sentencing Guidelines. It is wrong, on principle, to take away a judge’s discretion at sentencing. The problem with this case would never have occurred had the Guidelines not existed at the time of Ms. Hasan’s sentence. As you well know, in the 1980s, many politicians, in their zeal to “play to the cheap seats” and desire to be seen by the electorate as “tough on crime”, enacted the Guidelines as a way to shift power from judges to prosecutors. We should be reminded of one of your colleagues on the federal bench who resigned rather than allow himself to be so dictated: http://articles.latimes.com/1990-09-27/news/mn-1443_1_sentencing-guidelines. It is laudable to do away with disparities in sentencing. But the Guidelines–which I view as nothing less than a threat to judicial independence–are not the answer.
    RT

    • Robert,

      On this–whether on balance the Guidelines are worth the heart burn–we should agree to disagree.

      I do not believe judges are better at sentencing than anyone else if there are essentially no rules–rules that have some binding directive. We judges are good at following rules due to our semantic training. Normal folks not so much. The avoidance of sentencing disparity, for example, between and among judges can be achieved to some degree with rules. It is impossible to achieve in my opinion without rules. If we really want absolute sentencing discretion than I think we should let the juries sentence.

      Anyway, that’s my story and I am sticking to it. But, my friend, your view is the one that most of my colleagues would much prefer. So, it is fair to call me an outlier (and, perhaps, outlaw).

      All the best.

      RGK

      • I do not believe judges are better at sentencing than anyone else if there are essentially no rules…. That may be true, but judges are the ones sitting in that chair, not “anyone else.” I trust the man in the chair to find a measure of justice in sentencing more than I do a mandatory “guideline” that pretends to parse each crime’s circumstance down to a gnat’s patootie.

        Each crime is unique, remember, made so by the uniqueness of the particular instantiation’s circumstances and the uniqueness of the criminal (who’s not even the same man he was the week before he committed his crime). No checklist of a binding guideline can possibly achieve justice across such variability.

        The basic law provides the rules you need, it seems to me: a range of penalties. That’s all that’s necessary.

        In handling variability, the world of psychology offers something of a solution. When an experiment is such that the outcomes must be subjectively measured, the…judges…doing the measuring are trained to the task so that there is achieved a degree of standardization among the judges in their evaluations of experimental outcomes.

        There’ll still be variations across judges, both those of the experiment and those of the judiciary, and within judges from time to time, certainly. That’s what clemency and pardon are for–the final check. And there’ll still be imperfections. If men were angels…, but we’re not.

        And that demands that no checklist made by men be allowed to rule over us.

        Eric Hines

        • E,

          I get your point. In fact, I am thinking about writing a post that might test your point. I have used it as a teaching technique before, but, frankly, it can generates more heat than light. I will do some thinking about whether I should do my test post.

          As always, my friend, I value your insights. All the best.

          RGK

          • Well, you know, more heat comes from cleaner burning. If you want light, you have to crud up the fire with…impurities. [g]

            Seriously, go for it. Advances always are messy affairs, especially in the beginning. It’s what discussions, heated debate, are for–to begin to add clarity.

            Eric Hines

  11. Pingback: The Path To “Merciless” (Update) | Simple Justice

  12. Pingback: Disparity Of Treatment – Courts Of Appeals Edition | Lawyers on Strike

  13. I was appointed to represent Steve Harper who had committed an extraordinarily heinous crime in his federal habeas challenging his death sentence. After a 3 judge panel upheld the district court decision denying relief I requested a hearing en banc. After nearly two months the Petition was denied as having been filed out of time. I mistakenly thought the “mailbox rule” had applied. There was little time to file a Cert Petition.

    I called Attorney General, Bob Spire, and explained my error and asked that he not oppose my Motion to Reconsider. Understandably he said “No, but I want to speak with you.”

    I had a miserable walk to his office contemplating my error. Upon arrival, Mr. Spire stunned me by asking if the following would be an agreeable pleading to seek reconsideration with 8th Circuit:

    “Comes Now the State of Nebraska by and through the Attorney General, Robert Spire and (me). …and jointly request in the Interests of Justice that the Petition for Rehearing and/or Rehearing En Banc be granted….”

    The En Banc hearing was granted.

    Attorney General Spire could have easily and understandably opposed my Motion based on the law and/or procedure. Instead, he did what was right.

    My criticism of your post was directed at your unwillingness to criticize any of the people whose actions and inactions resulted in a draconian sentence.

    • Vince,

      First, thank you for the comment about Bob Spire. He was a wonderful person, a Republican (as you well know), and believer in Senator Bob Kerrey (a Democrat as you well know) so much that Spire became the Senator’s Chief of Staff, despite the fact that Spire was the elder statesman of the Nebraska bar and needed a Washington job not at all. Of course, I think Bob Spire was our best Attorney General ever, but he was so much more than that as you eloquently describe. Thank you for the reminder.

      Second, I probably should have made the post more about the insanity of my original sentence. I encourage you to go to Simple Justice today, and read the post entitled The Path To “Merciless” (Update) and the exchange that SHG and I have on that subject. Scott is a big time criminal defense lawyer in New York, a really smart guy who does not suffer fools, and a great writer. I think you will find his thoughts interesting and somewhat in line with yours.

      All the best, my friend.

      RGK

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