As the stomach turns and the Congress dithers . . .

As the stomach turns* and the Congress dithers, every federal judge in the nation today received instructions from the Administrative Office of the United States Courts on measures that should be taken in the event of a government shutdown. As I previously indicated, I have a complex 12-day criminal jury trial scheduled to start on October 2, 2013, one day after the shut down would start. What a train wreck!**


*Fittingly, “as the stomach turns” began as the title for a parody of TV soap operas.

**For example, I look forward to telling jurors that they will get paid, we just don’t have any idea when.


Freddie insisted that there be no hoopla. So, he came to my chambers, took the oath and started work as US Probation Officer, but not before I insisted on a photo.

Freddie insisted that there be no hoopla. So, he came to my chambers, took the oath and started work as US Probation Officer, but not before I insisted on a photo.

Yesterday, I swore Freddie in as a United State Probation Officer for the District of Nebraska. He previously spent 17 years as United States Pretrial Service Officer for the District of Nebraska. Before that, when he was a little kid, he was my neighbor in Lexington along with his three brothers.* He is one year younger than my daughter Marne and one year older than my daughter Lisa. The kids were good friends.

If I disclosed what I know about the four hellions–meaning Freddie and his brothers–there is a good possibility that Freddie would have to give up his federal law enforcement credentials, surrender his service weapon and then enroll in the witness protection program. But, I won’t.

Instead, I will happily watch as he takes on the especially difficult responsibility of supervising felony offenders in a large part of the Third District of Nebraska. He has had that territory as a Pretrial Officer, so the transition, part of our planned consolidation of Pretrial and Probation, will be smooth. That said, the job is daunting. Freddie will look after offenders on supervised release in an area compromising nearly 40,000 square miles and covering two times zones. Freddie is a strong, tough, supremely fair, no-nonsense, very smart and extraordinarily experienced young man who is unusually well-suited to handling difficult people in potentially dangerous situations in remote places and without backup. There aren’t many US Probation Officers who face the challenges that will confront Freddie.

Freddie's territory.

Freddie’s territory.

By the way, Freddie hates attention and he hates being called “Freddie.” He goes by “Fred” except when I think or write about him. In my thoughts, Fred will always be Freddie. He will just have to get over my use of the diminutive. After all, it’s better than Fredericka! Now, there’s  an idea . . . .

Anyway, be safe Freddie.


*Freddie’s parents are saints. Only saints could have dealt with those four boys.

Judge Joe Bataillon announces he will take senior status October 3, 2014

Our Clerk’s office issued a press release today. In pertinent part, it reads as follows

District Judge Joseph F. Bataillon today announced his plan to retire from regular active service as a United States District Judge for the District of Nebraska, effective October 3, 2014. Judge Bataillon will take senior status on that date, but will maintain a full caseload.

Commenting on Judge Bataillon’s years of service to the federal court, Chief District Judge Laurie Smith Camp stated, “Judge Bataillon’s has had a very distinguished judicial career since his appointment in 1997, including seven years as this district’s Chief Judge, and twelve years in national leadership roles–guiding the federal judiciary’s policy on budget, finance, economy, security, and space and facilities. We are grateful that Judge Bataillon has chosen to remain with the Court in senior status, continuing to build on his impressive legacy.”

Judge Bataillon’s retirement to senior status will create a vacancy on the district court bench. President Obama will nominate Judge Bataillon’s successor, who then must be confirmed by the United States Senate. The district court judges have stressed to Nebraska’s two United States Senators, Mike Johanns and Deb Fischer, the importance of nominating and confirming an able successor to replace Judge Bataillon. Currently, Nebraska’s criminal felony per-judge caseload ranks eighth out of the nation’s 94 districts. For the 12-month period ending June 30, 2013, the average federal district judge handled 121 criminal cases, while the average Nebraska federal district judge handled 237 criminal cases. Nebraska ranks seventh in the nation for supervised release hearings in criminal cases. The average federal district judge handled 37 supervised release hearings,while
the average Nebraska federal district judge handled 106. In light of these statistics and Nebraska’s loss of its fourth active federal district judgeship in 2007, upon the retirement of the late Judge Thomas Shanahan, Judge Bataillon’s successor will need to assume and manage a busy docket.

Judge Joe has been an especially able United States District Judge and a power for good at the local and national level regarding the administration of the federal courts. In my opinion, he was the best Chief Judge our court ever had. Most importantly, he is a really fine person.


Crazy and cruel

Photo credit: This photo is taken from the superb 1991 movie Fisher King with Robin Williams and Jeff Bridges. Williams' character lives in a hole in the wall, talks to invisible "fat people," and believes a fire-emitting, mounted knight is constantly pursuing him. When the movie literally depicts the knight chasing Williams' character through the streets of a major city on a huge black horse, you see what schizophrenia actually looks like, including, most especially, the terrifying auditory and visual hallucinations that are frequently present.

Photo credit: This photo is taken from the superb 1991 movie The Fisher King with Robin Williams and Jeff Bridges. Williams lives in a hole in the wall, talks to invisible “fat people,” and believes a fire-emitting, mounted red knight is constantly pursuing him. When the movie literally depicts the red knight chasing Williams’ character through the streets of a major city on a huge horse, you see what schizophrenia actually feels like, including, most especially, the disorganized thoughts and the terrifying auditory and visual hallucinations. It is horrible.

A guy walks into the Washington Navy Yard . . . . Sounds like beginning of a demented joke. And, it is, sorta.

To understand that the “joke” is on us, you must read The real Navy Yard scandal by Charles Krauthammer. As an aside, you don’t have to buy Krauthammer’s right-wing views about guns to appreciate his insights as a Harvard trained and board certified medical doctor and psychiatrist. Here is the heart of his article:

As was the case in the Tucson shooting — instantly politicized into a gun-control and (fabricated) tea-party-climate-of-violence issue — the origin of [the Navy Yard] crime lies not in any politically expedient externality but in the nature of the shooter.

On Aug. 7, that same Alexis had called police from a Newport, R.I., Marriott. He was hearing voices. Three people were following him, he told the cops. They were sending microwaves through walls, making his skin vibrate and preventing him from sleeping. He had already twice changed hotels to escape the men, the radiation, the voices.

Delusions, paranoid ideation, auditory (and somatic) hallucinations: the classic symptoms of schizophrenia.

So here is this panic-stricken soul, psychotic and in terrible distress. And what does modern policing do for him? The cops tell him to “stay away from the individuals that are following him.” Then they leave.

(Emphasis added.)

Here is what should have happened:

Had this happened 35 years ago in Boston, Alexis would have been brought to me as the psychiatrist on duty at the emergency room of the Massachusetts General Hospital. Were he as agitated and distressed as in the police report, I probably would have administered an immediate dose of Haldol, the most powerful fast-acting antipsychotic of the time.

This would generally have relieved the hallucinations and delusions, a blessing not only in itself, but also for the lucidity brought on that would have allowed him to give us important diagnostic details — psychiatric history, family history, social history, medical history, etc. If I had thought he could be sufficiently cared for by family or friends to receive regular oral medication, therapy and follow-up, I would have discharged him. Otherwise, I’d have admitted him. And if he refused, I’d have ordered a 14-day involuntary commitment.

About 35 years ago, I had more than a few experiences similar to those recounted by Krauthammer. Serving as the chairman of the mental health board or representing people who appeared before the board, I saw many  schizophrenics in a florid state. Some readers may recall that I have written about two of those tortured people here and here.

I also dealt with one of these poor souls in a situation roughly similar to the Navy Yard shooter. My man was in his early 20s and, like so many of his fellow sufferers, he became seriously disturbed when he stopped taking medications.

One afternoon, the young man’s mother, a good client, a long-time school teacher and a very dear person, came to the office upset and concerned about her son. He was squirreled away in the family home, refusing to leave for any reason. As happened from time to time, he was off his meds. He was terrified because of the delusion that people hidden in the walls of the house were talking about him and planning to do him harm.

I knew the young man, and he knew me. Despite his schizophrenia, it was clear to me that he would never intentionally harm anyone. That didn’t mean, however, that he wouldn’t hurt himself or someone else if his hallucinations became severe enough.

I went to the home, and he let me in. He was shaking from fright and held two antique pistols that his late father had collected. I couldn’t tell if they were loaded. He was very glad to see me. He talked non-stop and excitedly about the voices coming from the wall. Additionally, he earnestly recounted that “they” were probing for him with x-rays that came from behind the wall. He had taken protective measures he told me and the tin foil he had placed all around the sofa partially blocked those rays.

Because he was so far gone, I dove into the kid’s hallucination and agreed with the him that I too could hear the voices and even see the tingling of the x-rays as they bounced off the tin foil. I suggested that we had to make a run for it, and get to the police station right away before the bad men could get him. He agreed.

So I opened the front door. I urged him to creep quietly toward the door. I  whispered to him to leave the guns on the sofa so the x-rays wouldn’t pick up the moving metal on his person as we escaped. He did. Then, we ran out the door to my car.

When we got to the police station, I told him the police would protect him by putting him in a room where no one could hurt him. They would also stand guard outside to stop the bad men from getting to him. I assured him that no x-rays could enter the police station because of the special shielding the police used to stop such things. He willingly allowed the police to put him a holding cell. Soon thereafter he was transported to the Regional Center where he was treated with Haldol and released after several days. He was a different person when he got out.

Why didn’t that same thing happen to the Navy Yard shooter? In our modern zeal to respect the civil rights of the mentally ill, we have so over-legalized our approach to the incapacitation of the floridly psychotic that we place ourselves and those poor souls in grave danger. We require a recent overt act showing danger to self or others before we forcibly treat these extremely demented people. Invisible men bent on killing the patient and killer alien rays are not enough. That’s crazy and cruel.


Do the costs of incarceration influence sentence length?

In an earlier post, I suggested that efforts at cost containment at the federal level might create a perverse incentive for federal judges.  That is, to preserve the balance sheet for the federal judiciary, judges might select shorter supervised release terms in an effort to save money. This is because, unlike the cost of incarceration, the federal judiciary is required to undertake the costs of supervised release.

After the post went up, Magistrate Judge Andrew Wistrich called to my attention a fascinating law review article that he and his coauthors recently published in the UCLA law review. Among other things, these highly regarded researchers attempt to get at what happens to the length of sentences when sentencing judges are given detailed cost information and explicitly directed by the law to consider that cost information at sentencing. See Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie, Altering Attention in Adjudication, 60 UCLA L.REV.1586, 1591-1597 (2013).   (Jeffrey J. Rachlinski is a professor of law at Cornell Law School; Andrew J. Wistrich is a magistrate judge in the U.S. District Court for the Central District of California; and Chris Guthrie is the Dean of Vanderbilt Law School.)

Using Missouri law as the predicate, where judges are explicitly tasked with considering the cost of incarceration when choosing a sentence, the authors set up two scenarios with each scenario having three different cost-of-incarceration parameters.Thus:

[W]e asked 133 judges attending the annual meeting of the American Judges Association in September 2010 to sentence a hypothetical defendant identified as“Hector Campbell, an unemployed drummer.” The judges were split into two groups—one received a scenario charging Hector with possession of cocaine, while the second received a scenario charging  Hector with rape.

Id. at 1596.

What do you think the researchers found? I won’t spoil the ending, but you will be surprised. More importantly, you will be intrigued.


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