A PS to the posts on “casual cruelty” plus something more

The first law clerk I hired was Mary Buckley. With an advanced degree in linguistics and honors from the Creighton Law School, Mary worked with me when I was a magistrate judge. That was so long ago that Mary was the one who taught me how to use a computer. Do you remember DOS commands?

Anyway, Mary read my posts on “causal cruelty” and sent me an e-mail about her experiences. You should know that Mary is a brilliant person who has always been committed to doing good in this world. (See photos of Mary and her children near the end of the link.) After she left me, she worked for Chief Judge Bill Cambridge on our court, then worked as a federal public defender, and concluded her career with the feds as a clerk to Chief Judge Smith Camp. Mary wrote:

Though I spent 18 years in judges’ chambers, I still forget that you all exist in a sheltered world. Douglas County is notorious for being horrible about getting inmates their meds. At least between 1994 and 2001 it took an Act of Congress to get a guy his pills.

And I had a horrible situation with [the] Sarpy [County jail] and the Marshals once. My client appeared for his plea. His entire head was red, scaly and swollen, and he had a gross cloudy liquid coming out of his ears. I didn’t recognize him. The prosecutor and I went and talked with WGC [Judge Cambridge] prior to the hearing about the situation. Apparently, the nurse said the situation got to that point because my client was using too much dandruff shampoo. WGC repeatedly asked the Marshal, John LNU, why my client had not been taken to a doctor, and John kept repeating, “He saw a nurse. And he caused the situation himself.” Finally WGC yelled at John in his loudest voice, “I want this guy to see a doctor today, do you understand me?” And voila, it finally happened.

No need to respond – I just think someone needs to hear these horror stories – maybe someday it will have an effect and local inmates won’t be treated like cattle, or worse.

While Mary’s horror stories regarding “causal cruelty” are worth the retelling, I find the first line of her e-mail the most important. She is right. Federal trial judges “exist in a sheltered world.” After doing this work for decades, I still need to be reminded of that truth. Young federal trial judges, especially, should take heed of Mary’s insight. It is terribly important.

RGK

Women trial lawyers

I graduated law school in 1972. Our class had several lawyers who ended up making their living as trial lawyers. One of them, Bill Riley, is now the Chief Judge of the Eighth Circuit and member of the Executive Committee of the Judicial Conference of the United States. The foregoing said, the Class of 1972 at the University of Nebraska College of Law did not include a single woman.

Elaine Mittleman, an experienced federal appellate practitioner, recently sent me an article about the retirement of a woman litigator. Grace Day called it quits this fall from one of Missouri’s preeminent law firms. Ms. Day practiced just down the road in St. Joseph. I am sorry to say that I never had occasion to cross her path. By all accounts, she was a kind but tough trial lawyer and the fact that she practiced law for 63 years is just the tip of the iceberg when it comes to her many accomplishments. See Marshall White, Attorney Grace Day leaves a legacy for women attorneys, St. Joseph News-Press (Oct 25, 2013).

 Photo by Jessica Stewart | St. Joseph News-Press

Photo by Jessica Stewart | St. Joseph News-Press

The accomplishments of Ms. Day, and the fact that I graduated law school 23 years after she did but without one woman in our class, started me thinking about woman trial lawyers, and particularly those who practice in federal court. I first thought about our Chief Judge, Laurie Smith Camp, and what a great litigator she was until she took the bench as the first female federal district judge in the District of Nebraska. I then thought of Marnie Jensen, a litigation partner at a national law firm with offices in Nebraska, and former law clerk on our court. My thoughts then turned to Sara Fullerton, a federal prosecutor here in the District of Nebraska. All three of these women are or were superb federal trial lawyers and wonderful people to boot.

While my law school education was excellent, I wish Grace Day, Laurie Smith Camp, Marnie Jensen or Sara Fullerton or others like them would have been among my classmates. I am much the poorer for their absence.

Update

Thanks to Elaine Mittleman and the Polsinelli law firm, I have been privileged to see a video tribute to Grace Day that includes Ms. Day speaking about her experiences. It is well worth viewing. See here.

RGK

Casual cruelty–part two

More than a few commentators responded to my earlier post Casual cruelty about the fellow who was deprived of his medications because of a silly rule at Douglas County Corrections. One of the concerns was that I had failed to see to it that he would get his medications. I cleared this up in a comment on Simple Justice. My comment read as follows:

SHG,

I knew that he would be taken back to D&E where they would administer the medications D&E authorized. As a result, I was not required to enter a order directing that he get his medications. I also offered to sentence the guy in Lincoln the next time around so we wouldn’t have to go through this nonsense again since D&E is located at the main line prison in Lincoln.

All the best.

RGK

Scott responded:

Judge,

That circumvented the problem, but neither dealt with the problem of an act of casual cruelty toward a prisoner nor saved the next human being, who might not be so lucky as to make it to your courtroom alive. I understand that the courts and BOP have to get along, but isn’t there a limit?

The sense from your post is that a judge is powerless to protect this prisoner. Is that so? Why?

Scott deserves a response.

One of the dirty little secrets in the federal judicial biz. is that federal courts such as ours are at the mercy of local jails to house our prisoners. The US Marshal spends a great deal of time trying to manage these relationships because ultimately we harm prisoners and their lawyers if the local jails refuse to take our prisoners.

Case in point: The local jail in Lincoln takes very few of our prisoners. At one point it took none of our prisoners. As Chief Judge, I begged the Lancaster County Commissioners to take more prisoners and we even offered to partially fund the building of a new jail. They were polite but not responsive. The result is that our defense lawyers must travel hundreds of extra miles to see their clients. At one point, we were holding prisoners as far away as Wisconsin. Why was the local jail administrator acting this way? Years ago, the Department of Justice, through the Marshals Service, did a contract audit and DOJ cited the local jail for violations of the contract standards. After that, I am told that the local corrections official has maintained a hard-on for the feds lasting far longer than four hours.

In fact, the only reason we can now use D&E at the prison in Lincoln as a partial substitute is because our US Marshal, a long time and highly respected cop, has a good relationship with state prison officials. By putting prisoners at D&E, the Marshal has done a huge service to prisoners and defense lawyers alike by avoiding the very serious problem of housing prisoners in far off places while providing prisoners with decent and local short-term facilities offering satisfactory medical care.

Now, let’s get back to Douglas County Corrections in Omaha, the jail that refused the medications issued by D&E to my prisoner. Douglas County Corrections does not need our business. If they cut us off, prisoners will be held all over the mid-west. So, if I order the US Marshal to land hard on Douglas County Corrections for a relatively minor problem with one prisoner’s meds spanning one day, the cost of doing so is ultimately paid by federal prisoners and defense lawyers alike.

With the foregoing in mind, this is the path I took in this case and the one I have taken in other cases when I have a problem with local jails:

  • First, I fix the problem for the prisoner. In this case, I sent him back to D&E where I knew he would get his meds. I also arranged to change the sentencing venue to avoid the problem for that prisoner in the future.
  • Second, I make noises to the US Marshal in the hopes that the US Marshal will exercise his power of private persuasion to convince Douglas County Corrections (or any another offending jail) to alter a stupid policy to avoid similar situations in the future.
  • Third, I do not shrink from upsetting corrections officials if there is no other option. Indeed, angering the Governor, I blew up the State of Nebraska’s “double bunk” policy that placed prisoners in cells without screening for safety concerns. But, I don’t exercise that type of power in situations like this one unless the benefits clearly outweigh the costs to prisoners and defense lawyers.

More than 40 years ago, I read Abraham S. Blumberg’s 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession The premise of the article was that judges, prosecutors, defense lawyers and others in the criminal justice system make all sorts of compromises to make their lives easier. They do so at the expense of the defendant. Throughout my judicial career and otherwise, I have been acutely aware of that tendency, and I have sincerely struggled to avoid knowing participation in those selfish conspiracies. That said, the perfect must never become the enemy of the good. Perhaps I delude myself, but, as I see it, my handling of this bit of casual cruelty was one of those situations

RGK

Casual cruelty

Yesterday, while in Omaha, I was to sentence a guy in a drug case. He was going to do a lot of time. We got all the way through the sentencing process save for the defendant’s opportunity to speak. When the defendant spoke, the first thing he said was “I don’t feel so well” or words like that. He was sweating profusely, he seemed shaky, and he appeared to be nauseous..

He said he had not been given his medications at Douglas County Corrections. The US Marshals had delivered the fellow’s medication to Douglas County when they transported the guy from the Diagnostic and Evaluation Center (D&E) at the state prison the day before. The fellow apparently had herniated discs that required surgery, and he was evidently anxious and depressed.

The fellow kept apologizing to me about being sick. He wanted to be sentenced. He wanted to get to a Federal Medical Center for a thorough work-up. He had no apparent motive to delay sentencing.

When I asked the US Marshals what had happened, they advised that Douglas County Corrections (where we “store” prisoners in Omaha) won’t administer medications prescribed at other correctional institutions like D&E (where we also “store” prisoners) until Douglas County Corrections is independently satisfied that the prisoner needs the medications. Until then, the prisoner does not get the medication. In this case, there was no weaning him off the medications–Douglas County Corrections simply refused to give him the stuff at all. I suppose they would have gotten around to the medication issue at some point.

I suggested that this seemed silly since the Nebraska Department of Corrections, the entity that operates D&E, is far more sophisticated than a county jail and Douglas County Corrections could probably trust the State of Nebraska that the drugs were necessary. The US Marshals, who are, in my experience, both humane and professional, replied that it was not their policy that had deprived this man of his medications. Indeed, they had done absolutely everything they could to see that he got his prescribed drugs including hand delivering them to Douglas County Corrections.

I don’t like sentencing people to prison when they are sick. That is particularly so when their sickness results from the casual cruelty of correctional bureaucrats. So, I continued sentencing. No big deal.

RGK

Picture in your mind

Picture in your mind a dad, a boy and a dog on a frozen lake. They are ice fishing. The white dog’s head is completely submerged in the fishing hole. The dog is chasing a bluegill that the fisher kings threw back. That’s the copyrighted photo in the paper today. Wonderful!

Off to Omaha to bring holiday cheer and impose prison sentences in criminal cases. Is that an omen for 2014?

RGK

December 26, 1986

In September of this year, and as the first of a two-part post, I wrote “You didn’t do them any favors.” As a prelude to that earlier post, I added: “This will be a post in two parts. This is the first part. I hope I have the courage to write the second. If I do, the second part will appear on December 26.” Here is that second installment. It will make much more sense if you read the first.

_______

I had been selected to become a United States Magistrate Judge in November of 1986. Judge Ross, and my law partners, worked hard to make that happen. My wife, Verdella, was overjoyed at the prospect of living in Omaha. We would move into our new home some 225 miles to the east of Lexington in early January, and the kids, Marne, 14, Lisa 11, and Keller, 6, would start school.

Verdella was my high school sweetheart. She was tall, like daughter Lisa. While not exactly beautiful, Verdella was striking in the way stately blue-eyed German girls are striking. Everyone loved her. She was kind, funny, and the life of the party. She taught high school kids drama and French. Despite the fact that her father had been raised in Franklin, Nebraska, Verdella grew up down the street from me in Maumee, a suburb of Toledo, Ohio. Her father, Bill, had died in May of 1986 after a long and distinguished career as a surgeon.

Mark called me, and said he was out of prison. He asked whether he could come over. On the evening of December 26, 1986, Mark arrived. At six-foot three, he was as muscular and good looking as ever. Verdella fixed a crab and cream cheese snack, and the three of us talked while Marne and Lisa watched TV in the other room. Keller was asleep in his room. The Christmas tree shone brightly. It was a happy time.

Mark was great. Eight years in prison had not harmed him. In fact, he seemed more centered and at peace than at anytime I had seen him before. He spoke excitedly about moving to a southern state with his parents where they would raise cattle on a new farm. He was excited.

After about an hour, Verdella walked into the kitchen to get something. I don’t recall what it was. Pretty soon, I heard a crash. Mark and I ran to the kitchen. Verdella was laying flat on the ground. Her eyes were rolled up in her head, and she had lost control of her bladder. Marne came running in as I tried to administer CPR. I think I told her to call 911. Mark stood there feeling, I am sure, quite helpless. I told him to leave. Having just been paroled, I didn’t want to cause him complications when the police showed up.

The fire department and police arrived rapidly. Lexington is a very small town. I remember one of the volunteer firemen, who I knew very well. He was trying to keep his facial features neutral, but I saw it in his eyes. The rescue squad took her to the hospital that was only a mile or so away. The guys on the rescue squad asked me to drive myself. I am pretty sure they did not want me to see what they would be doing on the ride to the hospital. A neighbor came to look after the kids. Doctor Joe, our family doc and good friend, met me in the emergency room. He had tears in his eyes. Verdella was dead. She had just turned 40.

I learned later, after the autopsy, that Verdella died of idiopathic myocarditis–an inflammation of the heart muscle of unknown origin but frequently caused by a viral infection like the common cold. Patients who are hit with this illness are often asymptomatic. That was the case with Verdella.

What happened during the following days is all a blur. Verdella’s mom, Merle, and her sisters from Ohio quickly arranged to fly to Omaha on December 27. One of my pilot friends agreed to take his light twin-engine airplane to pick them up and bring them to Lexington. My dear friend, Pat, came over from Kearney and sat with me deep into the night. I called a clinical psychologist, who was a client, and asked for his advice about telling Keller the next morning. Like the psychologist predicted, when I told Keller, using very simple words, there wasn’t much of a reaction. I held him on my lap for a few moments, and then put him down. He sat on the floor and played with his trucks. I think I saw a tear.

We held a memorial service in Lexington for Verdella in the protestant church we had attended in the past. I remember dear Marne acting like a perfect little adult, greeting people and doing exactly what her mother would have done. Little Lisa, who still hates public attention, shrunk into the shadows. The four of us–the kids and me–saw Verdella’s body one more time at the funeral home. It was excruciating.

The seven of us–the kids, Verdella’s two sisters, her mom and I–flew back to Toledo. Verdella’s body followed. She was to be buried next to her father. The funeral was set for January 2, 1987. We were all staying at Merle’s home. On New Year’s eve, Kip, my brother came to see me. We talked quietly, and I told him I was not feeling well. So, he left. I had an awful pain in the stomach. I tried to lie down, but the pain got worse.

Eventually, I got up, and spoke quietly to Brad, my brother-in-law. I asked him to take me to the hospital. By then, I could not sit up straight. By the time we made it to the emergency room, I was beginning to go into shock. The last thing I remember is being wheeled down a long corridor with a nurse trying but failing to intubate me as I vomited.

I awoke late in the afternoon on New Years in what I seem to remember as a dazzling white room. The children were standing next to the bed. I learned that I had been operated on by Bill’s former medical partner. A stomach ulcer had ruptured and the contents of the stomach had spilled into the abdominal cavity. The rupture was about the size of a quarter, and it looked to Bill’s partner to be cancerous. As it turned out, there was no cancer. The hole had been caused by taking too many over the counter medications (Excedrin Extra Strength and aspirin) for migraine headaches.

About four days into my hospital stay, Judge Ross called me. He had Judge Beam on the line with him. Judge Beam was then Chief Judge of the District of Nebraska, and would soon be elevated to his present position as judge on the Court of Appeals. Judge Ross made it clear to me that I must come to Omaha, and that I must not allow Verdella’s death to interfere with the new job. He was gentle and kind but insistent. Judge Beam was supportive too. I took their advice.

I was far too weak and sick to attend the funeral. The children buried their mother without me. I learned later that the wind chill was fierce. You have not experienced cold until you have felt in your bones sub-zero temperatures driven by a wind coming off Lake Erie in January.

Eight days after my operation, I was released from the hospital. I was confined to Merle’s home for another week. Then, Merle, the kids and I flew back to Omaha, picked up my station wagon and drove back to Lexington. I was very weak. I had lost a lot of weight. With the help of great friends in Lexington, we packed our things, saw the moving van off,* and drove to Omaha to begin our new lives.

A few days later, I began the new job. I remember barely be able to lug my briefcase into the federal building on the first day of work. I especially remember feeling completely alone. I was 40 years old and the line for “marital status” on the employment papers said “widower.”

What about Mark? I never saw him again. But, I did learn that Mark was subsequently involved in a horrific automobile accident down south. Tragically, it left him paralyzed.

Verdella’s words still linger. Despite my overly earnest representation of Mark, I hadn’t done anyone any favors.

RGK

*As only little boys can do, Keller got friendly with one of the rough guys on the moving van. The fellow had a pocket knife that fascinated Keller because it looked like the moving van. The guy gave Keller the knife. It is pictured below. Joan, my dear wife since 1992 and the only mother Keller has really known, keeps the knife on the window-sill next to the kitchen sink. That way, Keller can’t miss it when he visits from Australia or other far off places. It is an odd but important reminder of his past.

photo (3)

The weasel and the pigeons: A Christmas story about lawyers in general practice

I relate to lawyers in a general practice, particularly a rural general practice. They labor in obscurity and mostly for small pay. But, they do good work for real people. Along the way, they build up strong relationships with their partners and clients. Frequently, they also have real stories worth the retelling.

One of the readers of this blog recently wrote about her father’s firm.  Jill described the genesis of the firm this way:

Firm started with Grandpa Carl who was country lawyer. Liked his beer, cigars, betting horses, and cockfighting. My dad and his bro Ed joined in 1950s. McMahon&McMahon. First office on Broadway in Saratoga Springs [New York]. Moved to present location (location, location) on Lake across from SSPD in 1956, Cousins Pete and John Coseo [later] joined firm . . . . I worked off and on since . . . doing legal and medicolegal research, etc.

She then went on to describe the big news:

Excitement at the law office today! A mink/weasel was trapped in the office! We had been hearing weird noises overhead for 2 days- pigeons cooing, but other scampering noises. It’s an old row building and birds, especially, try to get in and nest. This AM, my co-worker who comes in early heard something when she came in. She ran upstairs to her desk and heard something running up the stairs after her. Then she saw it dashing around and said it looked like a weasel. She shut herself in her office and called Dad and Pete [cousin]. Pete came in from the back lot, left the door open, and rummaged around hoping to drive it outside. Afterwards, they found a ceiling panel knocked aside where it came in from the walls. Also, it chewed the heck out of the blinds in Pete’s office. In case you’re wondering, we were planning to call a “wildlife remover” . . . . [but] Pete had [a deposition] . . . with the thing running around in the walls.*He said it was pretty quiet . . . [so nothing was done to hunt the critter down].

As it turned out, the weasel was still in the office. I heard it on the cellar stairs near my work area. I was the last one out of the building that evening, so I left the mail slot slightly ajar, thinking it could squeeze out that way. We haven’t heard it since. Current thinking is it probably followed the pigeons in, hunted and ate them over 2 days, and left for better hunting grounds. I have seen mink crossing streets late at night. Another 2 or 3 blocks, and they are right downtown. My dad misses the pigeons, sort of. They used to coo when they heard him in his office.

"Pigeon on guard. Looking down from roof above Dad's office. About month or so, ago. RIP."

“Pigeon on guard. Looking down from roof above Dad’s office. About month or so, ago. RIP.”

Now, that’s a genuine story about a general practice.  It has all the ingredients: a family of lawyers, a small town, weird depositions, old buildings with second story offices, scampering weasels, a cellar, fleeing secretaries and pigeons that coo until they meet a violent demise. While there are computers in use, the figurative quill pen, and all that means, is alive.

Legal realism at its finest. Thanks to Jill P. McMahon for helping me remember what it meant to be a real lawyer all those many years ago. It is a very warm memory this cold and grey Christmas day.

RGK

*Observation by RGK: Not the first time a weasel attended a deposition.

%d bloggers like this: