A bit of introspection

I know enough psychology to know that fear is often the root emotion of anger.  My posts on the sequester exhibit more than a little anger. Rage is not too strong a word.  Why am I so terrified? I tremble at the barbarians’ rejection of what I had always assumed were unquestioned verities like the sanctity and beauty of our federal judicial system.

It remains to be seen whether this old man’s terror is well-founded, but I won’t have to wait long for an answer. The answer is coming quickly like the metaphorical train in the tunnel.


When using peremptory challenges in a civil case, is it OK to strike a juror because he or she is butt ugly?

Say you are involved in an antitrust suit representing a defendant drug manufacturer. The plaintiff is another drug manufacturer. The antitrust dispute is about a drug used to fight AIDS. After voir dire, and during jury selection, the lawyer for the defendant moves to strike juror 10 using a peremptory challenge. Plaintiff’s counsel objects and claims that juror 10 is likely a homosexual based upon how that prospective juror answered certain questions regarding marital status during voir dire. Plaintiff’s counsel claims that a Batson challenge is appropriate even though the motivation to strike a juror simply because of the juror’s sexual orientation has never been ruled out-of-bounds by the Supreme Court.  No neutral explanation is given by defense counsel.

To make the hypothetical better, assume that defense counsel asserts that “my client simply doesn’t want gay people on the jury” and “my client’s desire is not founded upon anything having to do with how the drug is used” and “I don’t have to give any rational explanation in support of my client’s position.”  The judge agrees with defense counsel, refuses to reverse the strike, and the matter is appealed (to the Ninth Circuit) after an adverse jury verdict.  Who wins?  Why?

Again, let’s change the facts but only slightly. The drug is a face cream with a powerful antioxidant that conditions the skin. The juror is terribly ugly. No other facts change. How do you rule, and why?


PS  For a description of the real case, see ADAM LIPTAK, Court to Decide if Lawyers Can Block Gays From Juries, New York Times (July 29, 2013).  Thanks to How Appealing (July 29, 2013).

Photo Credit:  L. Marie's photostream per Creative Commons license.

Photo Credit: L. Marie’s photostream per Creative Commons license.

Tit for tat

I have an idea and then a proposal.  Here’s the context.

I took an assignment of a difficult death penalty case in Arkansas.  Last week, I authorized the withdrawal of an Assistant Federal Public Defender in that difficult matter involving, as it does, the death of a child at the hands of a man who suffered a serious injury to the frontal lobe of his brain.

I wrote:

Deborah Anne Czuba has filed a motion to withdraw as counsel. She is a
victim of the sequester. I now extend my personal thanks to Ms. Czuba for her
excellent and zealous service in this most difficult of cases. She has every reason to
be proud of herself. Congress has every reason to be ashamed of itself.

I got to thinking this weekend about how one could illustrate and then begin to rectify (or at least balance) the utter depravity that drove Ms. Czuba’s firing as a result of the sequester.   You first need to know a bit about Ms. Czuba.

She is not a rookie. She had been a public defender for 18 years.  Until she was canned, this was her bio from the Cornell University Law School:

DEBORAH ANNE CZUBA is an Assistant Federal Public Defender in the Capital Habeas Unit of the Arkansas Federal Public Defender’s Office. Prior to this, Deborah worked with the New York Capital Defender Office, and later served as Deputy Director for Investigation and Mitigation and Senior Staff Attorney with the Georgia Capital Defender Office. Deborah graduated from Wellesley College in 1992 and from Cornell Law School in 1995. During law school, Deborah worked as an intern with the South Carolina Death Penalty Resource Center, and as a research and teaching assistant for death penalty courses at Cornell Law School. Deborah has spoken at numerous national conferences on the death penalty (including NLADA’s Life in the Balance and for the NAACP Legal Defense Fund), specifically on the topics of mental retardation and the death penalty, and mitigation investigation.

With the foregoing keenly in mind, here’s my proposal.

Unless the House Judiciary Committee is run entirely by hypocrites, I think the Committee ought to fire one of its lawyers every time a federal public defender gets the axe as a result of the sequester.  Perhaps Mr. Branden Ritchie, Deputy Chief of Staff and Chief Counsel for the House Judiciary Committee, would be a good candidate for the first sequester generated pink slip.

I don’t know anything about Mr. Ritchie. I assume that he is a very competent lawyer and a really good person. But, hey, shit happens.


Have robe, will travel

Let’ s say you are prosecuting or defending a criminal or civil case in your local federal district court, and, out of the blue, your case get reassigned. Not only do you have new judge, but the new judge is a senior status district judge from far away.  A reader–and former law clerk to a federal district judge–asks: How does that happen? Here’s a primer.

Initially, I should qualify what I next write.  My experience as a senior status district judge taking “outside” cases is limited by the fact that I have only been on senior status for about two years.  So, I don’t know much about this topic. For those familiar with this blog, that caveat will be deemed redundant. Anyway, here goes.

First, let me tell you about the cases I have (or have had) in other districts and with my court of appeals.  I have had cases within my circuit but in other districts.  For example, I have a death penalty habeas corpus case in Arkansas, and, until it settled, I also had a significant environmental case from that state involving a river and a power plant.  I got the death penalty case because the judge who had been handling the case died, and the other judges had too many death penalty cases.  I got the high-profile  environmental case because the judge who was handling the case recused and it was then thought that a judge from outside the district was needed. In Iowa, I have an employment-related civil rights case against the Justice Department. I got that case because of recusals of the other judges.  I have a tax case in South Dakota, and I got that case because all the judges recused.

Outside my own circuit, I have had cases in California and New York.  I got the California case because the district court was overwhelmed with a backlog of cases.  Unfortunately, I had to withdraw from the California case (a civil rights matter where the manufacturer of a stun gun was the primary defendant) shortly before trial when my wife was diagnosed with cancer.  My cases in New York were all habeas corpus cases. I got those cases because that New York district handles a particularly large volume of habeas cases and the district needed help with its backlog.

I have also sat with my court of appeals as a senior status district judge.  That occurred in January of this year, and involved a whole variety of cases, both criminal and civil.  While the 8th Circuit does not need a lot of assistance from visiting judges, I got the assignment because a Circuit judge suddenly fell ill.

Second, there is a formal method for securing work outside your circuit and an informal method as well.  In order to go outside your own circuit, the Chief Justice must authorize you to do so. The formal method involves signing up to take cases outside your circuit with the Judicial Conference Committee on Intercircuit Assignments. That committee takes requests from courts for help, and then seeks senior judges willing to help.  The committee matches senior judges with district courts that need help.  That is how I received the California designation.

There is also an informal method and that is how I received the gig in New York.  That is, I worked with the clerk from that district on a national advisory committee dealing with pro se law clerks. From that committee work, I learned that the New York district needed help with habeas cases and I offered to take some of those cases. The clerk contacted his chief judge and then worked with the circuit executive of his circuit and staff in Washington to secure the intercircuit assignment.

Note that a senior status judge must also receive permission to take additional cases from his or her chief district judge. That check is in place to make sure the senior status judge is current with his or her regular docket of cases.

Third, assignments within a judge’s circuit take place much less formally.  Typically, a senior status judge informs the chief judge of his or her circuit that the judge is willing to sit elsewhere.   When the chief judge of a district needing the help of a visiting judge contacts the chief judge of the circuit for help, the circuit chief judge then simply makes the designation.  In my experience, the circuit chief judge always contacts the senior status judge before making the assignment to make sure the judge remains willing and able to provide assistance. Again, a senior status judge must also have the permission of his or her chief district judge to take these assignments.

Fourth, the motivation to take extra cases, whether within the judge’s circuit or otherwise, is varied. Some judges like to travel. (I don’t.) Some judges like to take on new challenges. (Me, not so much.) Other judges want to build up or maintain their caseloads in order to keep a full staff. (That’s my motivation.)

Keep in mind that senior status judges are working “for free” and they have a statutory right to turn down cases. More recently, however, the federal judiciary as a matter of policy has begun to strictly insist that senior status federal judges work hard enough that the outlay of personnel money for their staffs is justified. In the 8th Circuit, that means a senior status judge must have a weighted caseload equivalent to the weighted caseload of an active district judge in the least busy federal district court in the nation.

I currently take a draw of Nebraska cases equivalent to the draw taken by my active district judge colleagues, and that is more than enough to provide me with staff. Nonetheless, I began to take outside assignments to gain experience with the process. If I ever needed to increase my caseload to keep my staff, I would know how to do so.  Why do I want to keep my staff? Well, they need the work, and I care deeply about each and every one of them.

In summary, it is not simply a matter of bad karma if you draw an old fogey from far away. There is a process at work. By and large, the process adds value to the federal judiciary at minimal cost.


Despite what Jeralyn says, I’m not a leftist

Yesterday was a long day.   The morning was devoted to meetings with the other judges, and the afternoon was devoted to sending folks to prison.  Normally, the latter activity lightens my mood. There is nothing more–how I shall I say it, oh, yes–invigorating  than sending poor people to prison. But, when I got home and checked the internet my heart sank.

Jeralyn at Talk Left, the politics of crime had written a nice piece about this blog.  What a damnable slap in the face.

I suppose I deserved it–the horrifying leftist flattery and all.  Despite my better (baser?) instincts, a few hours earlier I had varied downward and sentenced a pregnant 20-something Mexican kid to time served in a case about fake documents or something heinous like that.  She came here when she was 14 and later had a child.  Now, she was pregnant with another. Under these circumstances, any card-carrying member of the “League of Fascist Gentlemen” would have hit her with an upward variance. Although there was no evidence of it, I bet she had big calves from carrying marijuana across the border.

Tonight, when I lay me down to sleep, I will put my autographed photo of Richard M. Nixon face down on the nightstand.  I deserve to be punished even though I am not a leftist, despite what Jeralyn says.


Federal trial judges should ditch the black robes for something more regal!

It is not at all clear why it is that federal judges, and particularly federal trial judges, wear plain black robes. Before the Founding, I am told that judges in America wore wigs and robes of various colors. Jefferson (ever the liberal except when refusing to free his own slaves) thought American judges should not wear robes or wigs. Adams, as you might imagine, took the contrary position.  Someone apparently worked out a compromise, wigs were out but black robes were in.

What’s even more historically obscure is why judges have favored black at all.  Historians of the robe have fought to the death over this issue. One group suggests that:

  • In England, before 1694, the most popular colors for judge’s robes were green, scarlet (red) and violet – apparently, you had a choice!
  • In 1694, Queen Mary II of England died and was buried in Westminster Abbey in London. At her funeral, all the judges in attendance wore their official judicial robes – but wore them in the color black as a symbol of mourning for their deceased monarch. The mourning period for the passing of Queen Mary was extended over several years and most, if not all, judges continued to wear black robes.
  • By the time the mourning period had ended the wearing of black robes had been established as the norm for judges in the courtroom.


The other group argues that there are images predating 1694 of legal officials wearing simple black.  “Clearly black robes were  ‘in the mix’  so to speak before Queen Mary II died.”

Regardless, black is so, how I shall I say it, pedestrian.  It does not properly reflect our superior status as FEDERAL TRIAL JUDGES. After all, the Constitution makes our salaries immune from the sequester. Personally, we don’t have to make any sacrifice at all while Congress destroys the judiciary.

If we want to throw money around for “real-time” and court reporters because it saves us from working our poor little fingers to the bone writing notes, well, then, great men and women are entitled to their prerogatives. Let the assistant federal public defender–who withdrew from a death penalty case yesterday because she had been fired under the sequester–eat cake.  Some thing are more important than others.  Because some things are more important than others, I think we ought to start wearing better looking robes.

I propose a rig like this one:

Gilbert Stuart’s portrait of John Jay, first Chief Justice of the United States Supreme Court, 1794

Gilbert Stuart’s portrait of John Jay,
first Chief Justice of the United
States Supreme Court, 1794.

What do you think?


A question about the Justice Safety Valve Act of 2013

In an earlier post regarding the Justice Safety Valve Act of 2013, I suggested that it might be a good idea to make the standard of review on appeal from sentences under the statutory minimum less deferential so as to insure that we trial judges don’t go too nuts.  Does anybody know whether there is any discussion about the standard of review on appeal under the Justice Safety Valve Act of 2013?  If someone has an answer, I would be most interested in knowing the details.  While I am all for lessening the impact of statutory minimums in some cases, I am also very, very concerned that our zeal to do the right thing may have the unintended consequence of injecting even more unwarranted sentencing disparity into the calculus.


On matters of perspective and toilets

As a district judge, and a senior district judge at that, I admit that my perspective on what is important is skewed.  That admitted, I find United States v. Strong, No. 12-1842 (1st Cir., July 19, 2013) utterly mystifying and amazing.

In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house.  He claimed to have a problem with his bowels, but the government saw his conduct in a more malicious light.  This is the way the bathroom looked to the cleaning lady shortly after Strong left the bathroom:

The supervisor of the courthouse’s cleaning company,
Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”

The state of the bathroom was so bad that Mason, who had
fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.

Id. at slip op. pp. 5-6.

Strong appealed. If you include the dissent, and the photographs attached to the decision, the discussion on whether the defendant had been proven guilty goes on for 57 pages.  Two judges voted to affirm the conviction, and one judge voted to reverse.

I don’t know much.  But I do know this:  No misdemeanor case about a soiled toilet and a seven-day jail sentence is worth 57 pages of attention from a United States Court of Appeals. That’s true even if you, like me, are a freak about toilets.


PS.  Thanks to How Appealing (July 23, 2013).

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