Don’t tell Grampa, it’s a secret

Every summer when our grandchildren, Petra and Milan, return from China to visit us we try to have an early birthday party. Their birthdays are in late summer and early fall.

This year Joan sent the kids a video of various cakes they might like, and asked them to pick the cake they liked the best. We just received the return video with their selections. See attached. Some things are more important than others.

My dirty little secret: How I obscure the suffering of the defendant during allocution

Mark W. Bennett, U.S. District Court (Northern District of Iowa), and Ira P. Robbins, American University – Washington College of Law, are extraordinary thinkers, writers and researchers. Their new work, entitled Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, (March 10, 2014), is required, and I mean required, reading for any lawyer who represents a federal criminal defendant facing sentencing.

The last thing that takes place before a sentence is imposed in federal court is the defendant’s personal statement to the judge–allocution. After more than 20 years, and a 1,000 plus allocutions, I have a dirty little secret to admit.

Sometimes, when the allocution is raw with begging and bargaining and terror and fear, I will take my glasses off as I look directly into the defendant’s eyes. When I do, the defendant’s facial features becomes fuzzy and obscured and indistinct even though I appear to be focused on the face. I know that doing so is cowardly. But when I reject the plea for mercy, it helps to get me through the long nights that follow. After all, it’s all about me.

RGK

Finally, a firm type and stage for the cancer and a treatment plan together with a case management approach

1. The nodule in my lung is probably a fungal infection that occurs frequently in this part of the country. The UNMC pathologist gave that tentative opinion this morning following a biopsy of my lung at UNMC on Friday. If that turns out to be true, the infection will be ignored for the time being and I will start treatment of the lymphoma.

2. From the bone biopsy last week, we now know that the bone marrow is free of the lymphoma.

3. Given the above, my cancer was firmly typed and staged today. I have stage III classical Hodgkin’s lymphoma.

4. Dr. Armitage, at UNMC, one of the world’s leading experts on lymphoma, and Dr. Green, my treating oncologist, both agree that I should start a chemo protocol developed here in Nebraska for people over 60. I will receive treatment in Lincoln.

5. I will go through six cycles of treatment. Each treatment cycle lasts 28 days. I receive chemo drugs on the 1st and 8th days by infusion into my port. On days 1-14, I also take chemo medications by mouth. Days 15-28 are for rest and no chemo is administered. Radiation is not usually required.

6. I will start the protocol as soon as the final pathology report on my lung is received by Dr. Green confirming that I have a fungal infection and not cancer in the lung. That is, I should start chemo in a week or so presuming the present shortage of some cancer drugs does not delay things.

7. Dr. Green advises that I should not plan on conducting trials during the first cycle. That is, for about a month after I start chemo, I should not plan on conducting trials because I could be very sick.* On the other hand, if the first cycle goes well, I might able to handle trials thereafter, particularly during the last 2 weeks of each cycle. But my functionality as a trial judge (always suspect in the minds of many) is yet to be determined.

8. With the marvelous help of Magistrate Judge Zwart and my judicial assistant Kris Leininger, we will manage my caseload with the foregoing in mind. At any time, concerned counsel should feel free to contact Kris or Judge Zwart with questions and concerns.

It is my intention to be utterly transparent throughout my treatment. I intend to keep the bench and bar advised as things progress.

All the best.

RGK

*Today, I asked Chief Judge Smith Camp to reassign a civil case set for April 7, 2014 that has twice been bumped. Judge Gerrard agreed to take that case and to do his best to try the case on the firm trial date I previously established. Of course, Judge Gerrard has my thanks.

On unintended consequences and the odd relationship between a traumatic pneumothorax and making marijuana legal

In Ports and pot, I asked Doug Berman rhetorically: Could it be that the new legal regime in the Rocky Mountains is a “win-win” for both the cartels and the State of Colorado? Doug responded. As usual his views were vigorously argued.

Needing a CT guided needle biopsy of my left lung, I stalled for time to address Doug’s trenchant remarks. At about the same time, Scott Greenfield, at Simple Justice, asked if everyone could play. I said sure. Now, Scott has posted an extremely well-reasoned response to my question. See Is The Rocky Mountain High A Win-Win?

It is the weekend. No medical stuff is scheduled. I no longer have an excuse for failing to defend my views about the idiocy of Colorado’s pot policy and my concern that such a policy may be a “win-win” for the cartels and Colorado (at least so far as sin taxes are a “painless” way of raising state revenues).  So, here goes.

Preface

First, today, I am not addressing medical marijuana. Indeed, I am glad that the Obama administration announced Friday that it was extending to the University of Arizona a waiver to study the potential medicinal benefits of marijuana. That said, if I were the King, and it was determined that there was in fact medicinal benefits to the drug, I would dictate that registered pharmacists dispense the drugs as opposed to street corner vendors.

Second, with regard to the broader question of making marijuana freely available, I found the February 26, 2014, editorial of the Christian Science Monitor, entitled “Warning signs on Colorado’s marijuana legalization” to be well worth reading. As the editorial points out, there is good reason to believe that Colorado’s experiment is dangerous and especially for children. Perhaps surprisingly, and as the newspaper recounts, the Governor of Colorado expresses many of the concerns highlighted by the Monitor.

Third, I thank Doug and Scott for their engagement.

Introduction

I have shamelessly used my illness as a foundation for recent posts to this blog. This iteration continues that ploy.

On Friday, I went to the University of Nebraska Medical Center for a CT guided needle biopsy of nodule in my left lung. The friendly and skilled assistant professor of medicine, Dr. Cris Vargo, who did the procedure, warned me of the risk of unintended consequences like a collapsed lung, referred to medically as a traumatic pneumothorax.

As I remember Dr. Vargo’s warning, about 25 percent of the time the procedure I underwent produces a pneumothorax from punching a needle through the chest and into the lung. Such a problem is not fun to fix if it does not naturally resolve. Nonetheless, the risk was clearly worth taking in my case. The chance of a lung cancer of a type different that my Hodgkin’s lymphoma diagnosis was real. If I had a second type of cancer that was  not discovered before I started treatment for lymphoma, that would not be good. So, I undertook the risk willingly.

Guess what? Yep. A traumatic pneumothorax developed. As it turned out, it resolved itself without intervention about three hours after the procedure. So, I was allowed to leave UNMC and we drove home. As I prepared to respond to Doug and Scott, the words “unintended consequences” rang loudly in mind.

Doug’s Comment

I asked Doug to answer the rhetorical question of whether Colorado’s experiment might be a “win-win” for the cartels and Colorado.  Doug’s answer was a non-answer. He simply slipped the punch, lamely, in my view, writing that there were “[l]ots of uncertain market variables in play . . . .”   Come on, man!

Doug then threw out a bunch of (disjointed) distractions.  He wrote that I should:

consider that legal sellers now have a reason to want to rat out the illegal ones and cops have more resources to focus on scofflaws. (Also, if Feds fix banking problems, legal folks can take plastic and not just cash.). Moreover, if Colorado citizens think use/sale of pot should be legal, cartels selling pot there only are just shady businesses avoiding regulation, not evil doers. Finally, as the moonshine comment highlights, legal sellers can and should be able to provide a more consistent and predictable product.

Doug apparently does not want to address the question directly, and for good reason.  As the Monitor’s editorial points out, President Obama and others are justly worried that: “If we start having a situation where big corporations with lots of resources and distribution and marketing arms are suddenly going out there, peddling marijuana, then the levels of abuse that may take place are going to be higher[.]”  Doug, I think the cartels are far closer in skill, money and guile to big corporations than they are to the mere “scofflaws” recounted in your response. Don’t you?

Doug then asserts a shopworn non sequitur. That is, “Why do you think ending pot prohibition is any more idiotic, RGK, than was ending alcohol prohibition?” Well, unlike booze, this country never had a cultural tradition of smoking dope. Alcohol prohibition ran against the grain of our history, no matter the justifiable health reasons behind the policy. For over 1,000 years, our descendants consumed alcohol as a part of cherished rituals. As a result, trying to put a stopper in that bottle was doomed to failure. Not same, same with dope.

Finally, Doug asks: “Just curious what drives your disaffinity for free markets and free people.” My flip answer is that I am German. I am all for free markets and free people except when I’m not.

More seriously, I think culture matters.  As a matter of fact, I think a productive cultural tradition is central to good government and a healthy society.  By and large, our culture has produced good government and a healthy society. We have never before had a history or tradition of smoking dope. I don’t believe that a marijuana culture produces good government or a healthy country and that being true, our government ought not help to normalize such a culture.

In this vein, there is a real, present and specific danger that by normalizing dope consumption, we will harm a lot of young people. As the Monitor editorial points out, “With easier access to the drugs [there is] a subtle message that pot is not dangerous, . . . . According to the National Institutes of Health, 1 in 6 16-year-olds who tries marijuana will become addicted to it.”

Why in hell would you want to tell a kid that smoking dope is just fine?  “Do as I say, and not as I do,” won’t work. After all, in Colorado dope is legal, profitable, and helps support Colorado’s treasury. That being so, it is inevitable that adolescents will view pot consumption as perfectly acceptable. To the degree that legalizing marijuana increases consumption among young people, and that seems a given at least to some extent, Colorado’s experiment is not only idiotic but it is a public health disaster.

Scott’s Post

Unlike Doug, Scott takes the challenge head-on. That is, he explains in great detail why Colorado’s legalization experiment will not be a “win” for the cartels. Scott’s reasoning is not easy to dispute, but Scott’s analysis requires that certain economic predictions turn out to be true. Essentially, he argues that price pressure will ultimately move the cartels to other venues and other products.*  Scott may be right, but, as he acknowledges, that may take a good deal of time and, even then, Colorado’s fixation on driving price up by regulation and taxation gives the cartels plenty of room to profit in the short and medium term.**

Ultimately, here’s what concerns me the most.  Pretty quick, someone is going to get real serious about scaling up marijuana production, wholesale distribution and retail sales in the legal market place that Colorado has created. According to the Monitor, Obama and his Justice Department fear that legit corporations will see the profit potential and gradually move into the market in a big way. (When that happens, Birkenstocks will be out!)  If that fear is real, and I believe it is, there is simply no reason to think that the cartels will not find ways to invest in this legal business as well. Indeed, the members of the cartels are certainly the most experienced “businessmen” in the marijuana trade. Just as the Mafia found ways to invest in and profitably use legitimate business (gambling, trash hauling, construction), there is no reason to think that the cartels are any less adept at doing the same or similar things with the legal pot business in Colorado and elsewhere.***

So, Scott, you’re analysis makes much sense. But, if it were me, and unlike you, I would not bet against the cartels.

Conclusion

Both Doug and Scott may be right, and I sure could be wrong. After all, I started this little discussion after talking dope policy with a Colorado doc who held a scalpel to my chest while I was enjoying the mellow feeling induced by Versed and Fentanyl. How’s that for irony?

The foregoing admitted, I can’t get over my fear that Colorado’s pot experiment will end with unintended consequences that are not good.  But what the hell do I know?

RGK

*“The average drug trafficking organization” can “lose 90% of its profit and still be profitable[.]” OrianaTillman and Lowell Bergman, Do the math: Why the illegal drug business is thriving, PBS, Frontline Series. This makes it easy for cartels to operate in states where pot is legal but relatively expensive. In short, I have big worries that the price will never drop far enough to drive out the cartels.

**See also  Marijuana Legalization Raises Fears Of Drug Cartels, NPR Boston, (Friday, February 21, 2014).

***For a fascinating a look at the cartels’ investment in legitimate non-financial businesses, see Sergio Ferragut, Organized Crime, Illicit Drugs and Money Laundering: the United  States and Mexico, International Security Programme Paper 2012/01,  Chatham House, pp. 9-14 (2012) (non-financial sector businesses).

Ports and pot

RGK's new "port" (plus "turkey" neck)

RGK’s new “port” (plus “turkey” neck)

I had fun yesterday.

At the local hospital, an interventional radiologist installed my chemo port.  (See above.)  In fact, it is super-duper port–a power injectable port.  The port is placed under the skin in the chest and a delivery line (hose) is snaked under the skin to a vein in the neck.  When access to the port is needed, the medical provider simply palpates the chest, locates the port by feeling prongs just under the skin, and then sticks a small needle between the prongs and into the center of the port.

This is latest in chemo-fashion. No unsightly lines dangling from your aging body.

By the way, there is no pain during the procedure. You feel only tugging and shoving.  Excellent drugs allow you to remain awake while pain-free. If you’re lucky, like me, you have a doc who is both very skilled and very bright.

My doc was from Denver.  He flies into Lincoln every so often to relieve the staff docs. The procedure takes about 30 minutes once you are on the surgical table under a huge camera-like device. That time provides an opportunity to talk to the physician as he does his handiwork. Yesterday, we had a fascinating discussion about legalizing marijuana in Colorado and some of the unintended consequences of Colorado’s idiotic (my view) pot policy

The doc told me that in Colorado the “black” market for weed remains strong.  Pot heads go to the local “dispensary” and buy the legal pot. In turn, they get a receipt that proves the weed is legal.  After that, they buy illegal, but high-grade, dope on the streets at far cheaper prices than can be obtained from the regulated dispensaries.  The stoner carries the receipt from the previous purchase of legal pot to fake out the police regarding the illicit pot purchase.

Rhetorical question for  Doug Berman at Sentencing Law and Policy:

Could it be that the new legal regime in the Rocky Mountains is a “win-win” for both the cartels and the State of Colorado?

RGK

Too much of good thing?

Monday, I had a bone marrow biopsy.  Not as painful as some folks claim. No report yet on whether the Hodgkin’s lymphoma has gotten into the marrow

Today, I saw my old neighbor in Omaha, Dr. Jim Armitage, who is one of the world’s leading authorities on the treatment of lymphoma. He is at the University of Nebraska Medical Center. What a gentle, kind man! He will consult with Dr. Nate Green my local treating oncologist. I have great confidence in Dr. Green as well.

Earlier, I had a CT guided needle biopsy of the lymph nodes but the PET scan that followed isolated activity in the left lung as well as activity in the lymph nodes. Dr. Armitage therefore suggested a biopsy of a nodule in my left lung revealed by the PET scan. While it is unlikely, he wants to rule out the possibility that there are two different kinds of cancers taking a bite out of me at the same time. So, off to UNMC on Friday to have a CT guided needle biopsy of the left lung by an interventional radiologist. Thereafter, the pathologists at UNMC, who are also world-class when it comes to lymphomas, will be able to tell if the growth is the product of Hodgkin’s lymphoma or some other cancer.

At the local hospital, I will have the port installed tomorrow through which chemotherapy will be administered.  On Thursday, once again at the local hospital, the ejection fraction of my heart (pumping capacity in lay terms) will be tested so that the doctors have a good baseline. Certain chemo drugs can impair the heart and with a proper baseline that concern can be monitored properly during the administration of chemo therapy.

Hopefully, early next week, Dr. Green will tell me what he and Dr. Armitage have decided is the best course of treatment. After that, I can start planning on how to balance my caseload with the demands of treatment. My wonderful colleagues have offered to lend a hand in any way I might need. But, I can’t make any firm plans until I have a better insight into what may be ahead. In this regard, I am very sensitive to the fact that lawyers need to know where they stand, but feel awkward inquiring. (“Say Judge, I know you have cancer and all, but are you going to be able to try my fucking case that you continued twice already?”) Truly, as soon as I have firm plan of action, I will let my colleagues and members of the bar know what I will be doing.

To conclude, let me ask a question: Can you ever get too much of a good thing?  By the looks of things, I am out to answer that age-old question. More later.

RGK

PS.  I appreciate the many words of support and encouragement.  When I can, I will respond individually. But for now, know that I appreciate the thoughtfulness. That appreciation even extends to David Stickman, Nebraska’s excellent Federal Public Defender. In part, David wrote: “This type of cancer must be like the guidelines, no longer mandating a harsh result. Advisory in the sense it must be properly diagnosed (and treated) but then wholly disregarded!”  David Stickman, March 7, 2014 at 8:46 am. David, you have no shame, but I have always liked that about you.

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