The inexcusable silliness of Garrett Epps

In addition to teaching law students creative writing and constitutional law, Garrett Epps, a former reporter with the Washington Post, is a student of judicial body language.  Please take a look at his piece that ran yesterday in the Atlantic.  It is entitled, “Justice Alito’s Inexcusable Rudeness; A justice of the Supreme Court should not act like a high schooler on the bench; when the target is a fellow justice, the offense is even greater.

Assume Justice Alito did exactly what Epp alleges.  That is, while Justice Ginsburg was summarizing her dissent on Monday addressing his majority opinion, “Alito pursed his lips, rolled his eyes to the ceiling, and shook his head ‘no.'” Why should anyone care?

The Justices are human beings and very weary ones right about now.  A grimace, grin, nose wrinkle, ear tug, eye roll, a silent “no” and the like in response to your colleague’s dissent from an opinion you worked your butt off to craft is hardly worth writing about in the Atlantic–unless, of course, you teach creative writing and you really don’t like someone.  God, how I hate Washington.


PS  Several times, I have had occasion to spend a little time with Justice Alito. He strikes me as a serious but painfully shy man.  Several times, I have had occasion to spend a little time with Justice Ginsburg.  Reserved but gracious, she strikes me as someone who needs no defenders.

O Chanada

Photo credit:  s.yume's photostream (Canada's golden moment) per Creative Commons license.

Photo credit: s.yume’s photostream  (Canada’s Golden Moment, Vancouver Olympics, 2010) per Creative Commons license.

My first grandchild, Petra, loves Chanada even though at four years of age she can’t pronounce “Canada” properly yet. She can’t pronounce ‘merika either, even though she spells it like Michael Moore.  Her daddy Karel grew up, and her paternal grandparents live, in Canada. Karel, Petra and the rest of the family now hang their hats in China, across the bay from Hong Kong.

Anyway, behind the scenes, I can see how many folks from a specific country visit this blog.  I was surprised to see the number of hits from Canada today and yesterday.  They were way up.  Now, I am worried. I made some snide comments about Canada in my post regarding the movie Battle Earth.

To be clear, I love Canada, I love Petra and I love my son-in-law, Karel.  Karel is a helluva hockey player. He particularly endeared himself to me when he got into a good old-fashioned Canadian fist fight with a player from a Chinese national hockey team during a scrimmage in China.  Karel was skating for an ex-pat team of has been hockey jocks.

So, to Chanada, let me say I am sorry.  That said, I still think Canadian Bacon was the best movie ever made.  But, then again, John Candy was a Canadian.  So, everything is OK, right?


Image credit:  bhaggs’ photostream (John Candy Lives On) per Creative Commons license.


Robert Bork, Michael Dolan and me

When Judge Robert Bork was up for confirmation before the Senate for a seat on the Supreme Court, an enterprising reporter by  the name of Michael Dolan convinced the local rental place to give him a copy of the movies Bork had rented.  That bit of reportage became legendary in the annals of judicial confirmation sleaze.  It was also pretty funny.

Anyway, as I write this, I am thinking of Judge Bork and Mr.  Dolan.  Last night, I watched Battle Earth.  (“A squad of Canadian soldiers survive a helicopter crash deep behind enemy lines during an alien invasion of Earth, now they have to survive the night.”)

This is a film about the invasion of earth where the “squid” threaten to take over the world, most particularly Canada.  In my pantheon of worst movies ever, this one has risen to the top.  It has it all.  Canada defending the world.  Cinematography by Handicam.  Special effects that are not special like really bad fake helicopters.  Monsters suits that don’t fit.  And, the best cinematic device of all is the head-brain of all the squid, captured by our intrepid Canadian fighting men and lugged around in a tackle box.  I am absolutely certain that the brain was an American football covered in Saran wrap.

One critic put it perfectly, “this is barely filmmaking.”  So, if some summer evening you are worrying about the end of the earth, and desperately need to feel secure, rent and watch Battle Earth.  O Canada!

By the way, I am very interested in hearing from readers about their nominations for the worst currently rentable movie.   There may be a prize, perhaps your very own DVD of Battle Earth.


PS.  I’d sooner give out my DSM-IV diagnosis (yes, I know there is a DSM-V, but I am a conservative) than I would release a list of movies that I have rented.  You can see why.

How long should it take to pick a jury in a murder case?

I have previously written about the English method (frequently seen in the federal courts) and the American method (frequently seen in the state courts) for jury selection.  With that in mind, I see that a jury of six women has been picked in the State of Florida’s prosecution of George Zimmerman for the shooting death of Trayvon Martin.  They started with a pool of 40 people.  Jury selection took two weeks.

The time it took to select a jury in the Florida case illustrates the differences in how judges from different venues view jury selection.  While I have absolutely no criticism of the Florida judge, and while I realize that the national publicity regarding the Florida incident makes that case unique, I thought it might be useful to look at how long it took to select a jury in a roughly comparable case here in Federal court.

Let’s take, for example, United States v. Hoover,   After a nine-day trial, Jeffrey Hoover was convicted, and sentenced to life in prison, on two counts of using a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), resulting in the first degree murders of Harold Fowler and Duane Johnson.  Hoover was white and the victims were men of color (Black or Native American).  Hoover, using two teenage kids to help him, executed Fowler and Johnson, with a rifle at close range, after they stiffed him on a $850 marijuana deal.  He shot one of them in the genitals.

The prosecutors and defense counsel involved in the Hoover case were the best in the business.  One of the defense lawyers was appointed precisely because of his great skill and vast experience dealing with murder cases.  He talked Main Justice out of seeking the death penalty.  The nearly two-week trial saw 30 government witnesses and five defense witnesses.

In the Zimmerman case, it took two weeks to select a six person jury from a pool of 40.  In the Hoover case it took two hours to select a 12 person jury plus an alternate out of a pool of 40.  Perhaps you can see now why I prefer the English method of jury selection–short and sweet even in big cases.


The selection of federal bankruptcy judges is a credit to the federal courts

Federal bankruptcy judges are selected and then reappointed on merit by the Court of Appeals for the district where the BK judge will sit.  The Judicial Council of the Circuit oversees the process.

I have sat on the Eight Circuit’s Council, and I have been involved with the selection of BK judges.  We have fantastic BK judges, and I believe the process used in the federal courts is largely responsible for the high quality of these judges.

Now, an independent study has come to a similar conclusion.  See A CREDIT TO THE COURTS The Selection, Appointment, and Reappointment Process for Bankruptcy Judges, Institute for the Advancement of the American Legal System, University of Denver (2013).  It is worth reading.


Fish, Fetuses, Fletcher and the Idea of Pain

Illustration showing fish hook and “pain” receptors in trout

Illustration showing fish hook and “pain” receptors in trout derived from Lynne U. Sneddon, Trigeminal somatosensory innervation of the head of a teleost fish with particular reference to nociception,Vol. 972, Brain Research pp. 44-52 (May, 2003) (Figure 1).

Many years ago, as fathers and sons are apt to do, Keller and I came together over a fishing rod, or more precisely, a cane pole. Our sojourn took us to a small pond in the hinterlands of the high plains of America. A fish was caught by the boy as the father looked on. Years passed.

The son became a fish biologist in Nebraska, New Zealand and then Australia. The father became a federal judge. The son studies fish and became interested in whether those creatures suffer pain during fishing*, and the father studies law and became interested in whether fetuses suffer pain during abortion.**

As it turns out, fish, fetuses and the idea of pain have more in common than one might think. Not surprisingly, we talked about our work and how our inquiries intersected. What follows is a thin thread from that discussion, but it represents only my thoughts, and not Keller’s.

While doubting that a fetus is aware of pain in a manner comparable to that felt by a human being, the Royal College of Obstetricians and Gynaecologists acknowledges that there “is disquiet [my emphasis] in denying a rawer, more primitive, form of pain or suffering that the fetus . . . and many animals might experience.” (RCOG, Fetal Awareness―Review of Research and Recommendations for Practice, at p. 6 (March 2010).) Several years back, Annie Murphy Paul beautifully elaborated on this anxiety when discussing the issue of fetal pain. (Annie Murphy Paul, “The First Ache,” New York Times Magazine (February 10, 2008).) As for fish, Professor Victoria Braithwaite’s book (Victoria Braithwaite, Do Fish Feel Pain?, Oxford University Press (2010)) collects and presents solid reasons for a similar unease.

It becomes difficult to reject, out of hand, the idea that fish feel some form of pain, albeit not akin to the human experience, when one realizes that fish can learn to avoid frightening stimuli (such as a plunging net), which in turn suggests long-term memory, or that fish, when injected with acid, rub themselves in an apparent effort to shed themselves of the irritant, or that morphine appears to work on fish, or that some fish have receptors associated with the transmittal of pain in higher vertebrates. Similarly, when one understands that fetuses as young as 18 weeks show a spike in stress hormones and a defensive shunting of blood to the brain when subjected to an invasive procedure, but those responses can be dramatically reduced by the administration of analgesic, one might also question assertions that fetuses are incapable of suffering pain.

While I am persuaded that fish and fetuses probably experience some form of pain, I have no definitive answers about the morality of fishing or abortion. This is partly because the underlying questions are so hard. For example, each time I turn to the question of morality, I trip over a mind-numbing series of conundrums. What do we mean by “pain?” What if a fish (or a fetus) cannot distinguish between pressure and pain but perceives both as the same thing? How does one prove or disprove that organisms such as fish and fetuses are “conscious” of pain, although that pain may be “raw” and “primitive?” That is, must an organism be able to think about thinking to be conscious of pain? Is sentience (the ability to perceive sensation) the equivalent of consciousness? If not, what are the material differences and should those differences matter? And the difficulty of understanding consciousness scientifically is daunting enough without also trying to understand and synthesize how philosophers of morality approach the question for beings like fish and fetuses that are unable to speak. (E.g., Rene´ Descartes, “Animals Are Machines,” in Passions of the Soul (1649).)

Despite these ambiguous views, I have one firm conviction. I gently rebuke the absolutists. For them, complexity and subtlety blunt their enjoyment of outrage. For me, complexity and subtlety engender wonder, yet uncertainty. Call me a relativist if you like, but a skeptic if you please.

It is facile to deride the idea of pain and snicker at those who genuinely fear that fish and fetuses suffer. There is mounting evidence that creatures great and small suffer a sort of pain, and we should not pretend that is not so in order that we may continue as if the infliction of pain were not an integral part of abortion―and fishing. Conversely, it is nonsensical to anthropomorphize fish and fetuses–particularly when weighed against the life and liberty of a living woman–based upon the egocentric notion that those organisms are no different from the human beings who study them. Fetuses do not scream, and Charlie the Tuna is a cartoon character.

We know far too little for bans on fishing or abortion. We know far too much for neglect. Small, incremental steps designed to address pain―but premised only on hard science―hold out the only hope for a rational resolution. That will not satisfy the true believers, but it is the truth.

So, I will end as I began—at a pond. The boy now has a darling little boy, and the father now has a grandson. His name is Fletcher. Someday soon, I will take Fletcher fishing. When I do, it will be with a sense of awe and humility.


*R. Keller Kopf, Ph.D.  Postdoctoral research fellow, Institute for Land, Water and Society, Charles Sturt University, Albury, Australia.  He is the coauthor, with P.S. Davie, of “Physiology, behaviour and welfare of fish during recreational fishing and after release,” New Zealand Veterinary Journal 54(4), 161-172 (2006) and “Phylogeny of Cognitive Development and the Capacity to Suffer,” Australian Department of Agriculture, Fisheries and Forestry (2010).  Again, the thoughts expressed in this essay are mine alone.

**I authored both of the federal district court opinions involving Dr. Leroy Carhart on the subject of partial-birth abortion that were ultimately resolved in the United States Supreme Court.  I have since recused myself from abortion cases for reasons unrelated to this essay.

Top ten legal writing hints when the audience is a cranky federal trial judge

I have been asked to post something about legal writing. I don’t know a damn thing about legal writing, as this blog constantly proves.  But, hey, ask and you shall receive.

A word about the literary form:  I prefer the “top-ten” form for trenchant legal analysis. Awhile back A while back (I have no clue which one is correct), and using this form, I wrote a piece about their Eminences and the mess they made of the federal Sentencing Guidelines.  In some circles, it was well-received.  Therefore, and proving that you can’t teach an old judge new tricks (or shticks), I once again adopt the genre for this series of profound musings.
So, here are my top ten hints for submitting briefs to me and other all-knowing beings who ascend the federal trial bench, both literally and figuratively:
10. Get a good editor.  Never send me something unless someone less dumb than you has read it first.  Jan, one of my brilliant career law clerks, is editing this piece.  Sometimes she annoys me though.  Just now, I really wanted to use the word “retarded” rather than “dumb.”  Jan said she’d quit if I did, so I relented.  I can’t stand the thought of doing my own work.
9. Burn anything that Bryan Garner has written.  He really knows his stuff, but Strunk and White’s The Elements of Style said it all.  Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules.  Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.
8. Unless you are retrograde (Jan’s word), or the judge won’t allow it, hyperlink to cases and citations to the record.  Remember, 9 out of 10 times a law clerk—not the trial judge—is the only one closely reading your stuff.  (Oh, don’t pretend to be shocked!)  The easier you make it for the law clerk, the less you have to worry that the clerk will go wild.
7. Justice Scalia writes smack.  You can’t.  Justice Kennedy waxes grand eloquent.  You can’t.  Justice Breyer writes simply.  You should.
6. Is it too much to ask you to read and follow the local rules?  Remember the venerable Latin legal maxim:  Rules are the opposite of sucks.
5. Please don’t “bitch-slap” your opponent.  It only makes me want to do the same to you, but in super slow motion.
4. If you send me a brief knowing that you will lose, but you are hoping to “educate” me, you are, in the words of the greatest of all legal minds, Gene Wilder, one “stupid, ignorant son of bitch, dumb bastard.
3. The best brief disproves the aphorism that “legal writing is to writing as military music is to music.”  When accepting the American Society of Legal Writers lifetime achievement award, Justice Scalia was correct to say that he does notbelieve that legal writing exists.”  Then again, Scalia really likes Jack Benny jokes.
2. I have always appreciated the writing style used in the “Dick and Jane” books.  In addition to being vaguely titillating (which is always a plus), even I could understand the prose without having to read a sentence twice.  I wish that were true of most of the verbiage you send me.
1. It would be nice if you gave me a concise and accurate statement of the facts backed up by citations to the record and addressed to the elements of the case.  The Court of Appeals does not give a rat’s ass about what I think of the law, but it does care (at least a little) what I think of the facts.  Comprende?  (For emphasis, please see use 3, and example 2, in the Urban dictionary.)
Photo credit:  Legal text, written in a Gothic hand.  Penn Provenance Project's photostream per Creative Commons license.

Photo credit: Legal text, written in a Gothic hand. Penn Provenance Project’s photostream per Creative Commons license.

More Peugh

If you practice federal criminal law, you should read this guest post by Professor Todd Haugh at SL&P regarding the Peugh decision recently announced by the Supreme Court.  My earlier post about Peugh is here.

If you are a federal trial judge, and if the professor is correct, you might want to begin throwing up right now.  How many Guidelines’ calculations must you perform before you satisfy the Most Exalted?  Remember, now, the Guidelines are absolutely never, not ever, the law, unless, of course, they are (in which case the Supreme Court won’t tell you until they reverse you).


PS Can’t you just see the dazed look on the typical gangbanger’s face when his lawyer starts doing serial calculations using multiple manuals for a crack conspiracy that spanned five years. Priceless.

The detritus of life, a self-portrait

As some may recall, my smart ass son likes to pimp me about my nose.  Well, there is more grist for that mill.  Today, they shaved off the end of my nose to remove some perfectly benign but hideous thingies.   My only consolation is that my son’s nose will one day look like mine.



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