A cautionary tale–one more thing on Kopf’s sucky sentencing instincts

 Tea: a cautionary tale. By _nickd per Creative Commons license.

Tea: A cautionary tale. By _nickd per Creative Commons license.

The gizmo that runs this blog tells me that many of you have read the post about Shon Hopwood. Everyone loves a redemption story.

Please do me a favor.  That is, read an earlier post of mine on a related sentencing subject. Here it is. Then, as Linda Richman used to say, “talk amongst yourselves.” After considering both posts, tell me what you think. I sorta really mean it ’cause when I consider the two posts the feeling of schizophrenia rears its head (again) and this is cheaper than therapy for me.


4 responses

  1. Rich, I mean this in a reassuring (not snarky) way, but I find this sort of unremarkable. So naturally I remarking. Maybe I need the therapy. You fell for a sob story that was B.S. You (arguably) thought a sob story (though that’s maybe not the correct description of Mr. Hopwood’s statements at sentencing, but it will have to do) that wasn’t B.S was B.S. I’ve probably made the wrong call hundreds of times with students, faculty members, etc. I just don’t get all the fun that goes with getting flogged publicly. Plus, I done got tenure, and that means you really never have to say you’re sorry. Best, Pat.

  2. Pat,

    Thank you. I truly appreciate your kindness.

    After comparing both situations, I hope the reader more fully understands why many judges tend to be very cautious and all judges need to be very humble. An Article III appointment is a terrific thing for the ego (perhaps like tenure), but you learn quickly how much judging is like playing roulette with the lives of others.

    All the best.


  3. Yeah, a clerkship is helpful in that regard. I remember a death penalty habeas case where there was undeniable instructional error in the state court. This was before the “Anti-terrorism and Effective Death Penalty Act” so federal habeas came much closer the “Devil’s Dictionary” definition of an appeal — putting the dice in the box for a second roll. It was my case among the three clerks and Kennedy’s case, as he had assigned it to himself as the senior judge on the panel.

    The only real issue was whether the error was harmless. Plus there was the added bonus that the instruction in question was during the guilt phase, not the penalty phase. I spent days with the record reading it, trying to condense it for the judge, all the while trying to be utterly fair to both the petitioner and the government. Sometimes you talk yourself into thinking: “OK, what’s the big deal with a new trial? If he’s really guilty, then the government should be able to prove it again.” But the government probably never could have put that case back together. It was well over a decade since the original trial, and the witnesses weren’t all exactly choir boys and girls. Half of them were probably dead or “whereabouts unknown.” Plus a second trial was going to be hell on the family of the victim. He was going to walk, not just get sentenced again, if the panel ruled that the instruction was faulty and not harmless. Even as a pup I could figure it out.

    However, the petitioner/defendant was probably going to be executed or not based on what the panel decided. I slept poorly for days working on the bench memo for this case. I honestly don’t remember what the panel decided. I believe it got called for en banc review, as death cases often did. I was strangely relieved knowing that the panel’s opinion wasn’t the last stop on the road.

    It was really valuable but painful experience.

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