Memorial ceremony for Judge Ross

On March 24, 2014, a joint session of the United States Court of Appeals for the Eighth Circuit and the United States District Court for the District of Nebraska was held in memory of Judge Donald R. Ross, my mentor. The ceremony materials are now on the web. See The Historical Society of the United States Courts in the Eighth Circuit (click on Ross page). In particular, I recommend viewing the video.

Remembering that Ross won the Distinguished Flying Cross twice, the ceremony begins with “Amazing Grace” performed on a trumpet by Staff Sergeant Carl Eitzen of the United States Air Force. It ends with the Sergeant performing the “Air Force Song.”

In between, there are remarks by (a) Chief Circuit Judge Riley and Chief District Judge Smith Camp (whose father was one of Judge Ross’ law partners);  (b) three appellate colleagues (Judge Myron Bright, Judge William Webster and Judge Roger Wollman); (c) one of Judge Ross’ remarkably talented children, Becky Ross, who is a distinguished trial lawyer and managing litigation partner at a large national law firm; (d) and the judge’s son-in-law, the highly regarded Justice Ken Stephan of the Nebraska Supreme Court. I was privileged to serve as master of ceremonies.

In particular, the remarks of Judge Ross’ friend Judge William Webster, former head of the FBI and then the CIA, is worth listening to (beginning at about 18:34) if only to hear one truly remarkable man speak about another truly remarkable man. But, if you have time, listening to the other speakers will give you an even better idea of a man who quietly became a national power broker and later a judge who, despite his past political affiliation, played things right down the middle as an appellate judge.

This was one of the most important events of my life. At the conclusion of the ceremony, I had fulfilled a solemn promise to a man I revered. Some things are more important than others.





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As expected, my hair began to fall off such that Joan complained that I was worse than our old shaggy, long dead, and much beloved dog whose ashes we keep in a cedar box in the den. She was horrible dog, but we loved her dearly. My mind wanders.

Given the wifely complaints, I shaved the rest of my hair off. I am now as bald as Korey Reiman, a great young criminal defense lawyer who is bald (I hope) for reasons unrelated to ill-health.

I start the second cycle (round) of chemo on Tuesday. The first cycle (28 days) was pleasantly tolerable. The severe pain in my left leg is gone. I stress this point only to piss off the few crazoids who wish fervently for the cancer to eat me up. My mind wanders.

The worst part of the treatment is fatigue. While I work most everyday, I go home in the early afternoon when the fatigue rolls in like morning fog. A kindly nurse at the clinic told me that the fatigue caused by chemo drugs must be experienced to be understood. She is right. When the fatigue hits speaking out loud feels like lifting heavy weights. Walking seems like a death march. You put one foot forward but doubt that you can lift the second one to continue.

Five more months to go.




Why does Kopf believe cops most of the time?

I told Scott H. Greenfield at Simple Justice that I would answer the question posed in the title. And so I shall.

The following is not intended as an excuse. Indeed, it may be viewed as an indictment. With the foregoing keenly in mind, and in no particular order, here are some of my thoughts on why I have tended to believe cops most of the time.

  • I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.
  • As an empirical matter, the vast majority of defendants are guilty. Therefore most defendants arguably have a more intense incentive to lie compared to the incentive of a cop.  This is particularly true when it is doubtful (save for the instant case where the cops were caught on video) that the real “truth” will ever come out.  Both the defendant and the cop know that there is little likelihood that their testimony will ultimately be proven true or false. Prison for the defendant is far worse than dishonor for the cop. Ergo, most defendants lie more frequently than most cops.
  • I have very seldom been faced with a situation where the defendant testifies and so does the cop. In suppression hearings, for example, defense lawyers keep their clients off the stand in most cases. Consequently, credibility testing on a one-sided record lacks the data necessary to make an informed credibility determination.
  • Cops are frequently armed with credibility enhancers like written consent forms, in-car or on-uniform cameras or audio receivers, drug dogs, damning Miranda interview statements buttressed by written advisement forms and more than one cop saying the same thing.
  • The cops I tend to see in federal court are very experienced and most often extremely well-trained. For example, a state trooper making an interdiction stop of a car with 20 kilos of cocaine in a secret compartment will almost always be an expert at making the stop and subsequent consent search bullet proof.
  • I was a magistrate judge for about five and half years. Making good credibility determinations when cops are involved requires practice. In the District of Nebraska, we use magistrate judges to handle all pretrial criminal motions. The district judges review those rulings on the record made before the magistrate judge. Whatever talents I had as a magistrate judge in 1992 to judge credibility of cops has deteriorated over the ensuing two decades. Frankly, this had made me cautious.
  • While I have never personally taken the MMPI (Minnesota Multiphasic Personality Inventory), I would guess that I would score high for respect for rules (authoritarianism). Put more simply, my personality, formed as white middle class child, strongly incorporates a positive but stereotypical view that we need rules and cops follow them. Even more simply, I believed the Dick and Jane books.
  • I used to represent county sheriffs in federal civil rights actions when they were sued in their individual capacities. While I also had my fair share of criminal cases, my county sheriff clients were far more honest than my clients who were defendants in criminal cases. Experiences like that are hard to erase when one looks at the world.
  • While I do not think of myself as “pro prosecution,” I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order.

Can I still function as a decent federal judge in a criminal case where a cop’s credibility is at issue? My answer is yes.

I am aware of my inclinations (implicit bias if you like) and I have done, and will continue to do, my level best to hold these impulses in check.  That is not a perfect answer, but it is the best I can do with what little I have.*


*For what it is worth, in 1984 and as an active Republican (serving as county chairman), I prosecuted Nebraska’s Republican Attorney General in an impeachment proceeding before the Nebraska Supreme Court.  Here’s a New York Times article on that affair. I add this to illustrate that I have not been hesitant to take a swing at high-ranking law enforcement officers even though the personal consequences of doing so were not pleasant.

Scott Greenfield and “Why Judges Won’t Condemn Cops”

At bottom, I like to think this blog is about legal realism.  That’s why I want everyone who reads this damn thing to go over to Simple Justice and read Scott’s post “Judicial Incentives: Why Judges Won’t Condemn Cops.

Because I have always believed that I could handle the truth, Greenfield’s post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.

What do you think about the post? Let Scott or me know. And, “no” I have not conspired with Scott on this matter. I leave conspiracies to right-leaning academics and drug dealers.


PS. Scott features Professor Will Baude’s take on lying cops. Guess where brother Baude teaches? Guess who received an undergraduate degree in Mathematics with a Specialization in Economics?  The foregoing said, and as Scott makes clear, you don’t have to buy into the “law and economics” stuff to accept Scott’s point.

Justice Douglas and his first day on the job

As some of you know, I am privileged to serve as Chair of the Board of Directors of The Historical Society of the United States Courts in the Eighth Circuit. In that capacity, I receive all sorts of very interesting historical information.

Yesterday’s in-box brought me the semi-regular Jackson List and an article entitled A New Justice (1939). authored by John Q. Barret, Professor of Law, St.. John’s University, New York, NY. This offering describes Justice William O. Douglas’s first day on the bench after taking the spot previously held by Justice Brandeis.

On the day Douglas was sworn in and took the bench, eight Justices took their seats first—they were, as viewed left to right from the audience, Associate Justices Felix Frankfurter, Hugo L. Black, Harlan Fiske Stone and James C. McReynolds, Chief Justice Hughes, and Associate Justices Pierce Butler, Owen J. Roberts and Stanley Reed.  At the ripe old age of 40, Douglas took the oath and his seat to Reed’s left.

We have a contemporaneous account of what Douglas thought on his first day in the form of a diary. Here, in his own words, are a portion of Douglas’ recorded recollection that I find particularly fascinating:

April 17, 1939.  I took the regular oath in the conference room a few minutes before noon, the C.J. administering it.  As we filed in from the conference room to the court room, I bringing up the rear as the junior[,] I could not help recalling with a smile Stone’s words of greeting when I was nominated – “Welcome to the chain gang.”  Shortly after I took the oath in open court was escorted to my seat, my son, who was seated with my wife, daughter, sister  brother, caused great merriment on the bench by insisting on leaving the courtroom for the very obvious purpose of going to the toilet.  He had violently objected to attending the ceremonies because they would cause him to miss gym at his school.  My daughter less violently objected because she would miss French at school.  I told Felix that I thought each of them showed excellent judgment and revealed a sense of relevancy and importance of events.

In the presence of McReynolds none of the judges smokes.  Roberts gave me a bit of advice.  He said that at his first conference he light[ed] a cigar.  In a moment McReynolds passed him a note saying “Tobacco smoke is personally objectionable to me.”  Van de Vanter [retired Justice Willis Van Devanter], so I am told, used to move over once in awhile to a far corner of the conference room and take a puff or two on a pipe – McReynolds or no McReynolds.  Apparently tobacco smoke is not the only thing McReynolds dislikes.  He seems to dislike all of his colleagues, judging by his crusty manner.  He thoroughly disliked Brandeis.  Why even this is told which I am certain is true.  During conference whenever Brandeis spoke, McReynolds would get up and leave the room and stand outside the door leaving it barely open so that he could tell when Brandeis had finished.  Then he would return.  He also disliked [former Associate Justice John H.] Clarke whom I never knew.  He was a paramount reason for Clarke’s resignation [in 1922].  What torture he could not apply by complete disregard of Clarke’s presence he made up for by badgering.  McReynolds also dislikes thoroughly the Roosevelt administration.  As I was talking to him about a mutual friend, [Professor] George Bates of Harvard [Business School], he let loose some cracks about the New Deal, terming its program as nothing but “moonshine.”  I said to myself, “What a great state of mind for a judge!!”

Ah, legal realism.




“If it was good enough for a King, it is good enough for a killer.”

Lethal injection as a method of execution has become a hot button issue for those who deal with death penalty cases.  Since I handle death penalty habeas cases, I express no opinion on the merits of the current practice of lethal injection. That said, I ran across a historical tidbit that I found fascinating and informative.

In January 1936, King George V was given a fatal dose of morphine and cocaine in order to hasten his death. At the time the King was suffering from cardiorespiratory failure, and the decision to end his life was made by his physician, Lord Dawson.  This remained a secret for over 50 years.

Dawson wrote in his diary:

At about 11 o’clock it was evident that the last stage might endure for many hours, unknown to the patient but little comporting with the dignity and serenity which he so richly merited and which demanded a brief final scene. Hours of waiting just for the mechanical end when all that is really life has departed only exhausts the onlookers and keeps them so strained that they cannot avail themselves of the solace of thought, communion or prayer. I therefore decided to determine the end and injected (myself) morphia gr.3/4 and shortly afterwards cocaine gr. 1 into the distended jugular vein.

J.H.R. Ramsay,  A king, a doctor, and a convenient death, 308 British Medical Journal 1445 (May 28, 2011) (abstract freely available; full article requires subscription).

The King’s nurse refused to give the injection. As Ramsay wrote in 2011,

To her credit, Sister Catherine Black of the London Hospital, who was present and who had nursed the king since the 1928 illness, refused to give the lethal injection, which is why Dawson had to give it himself. Nevertheless, faced with conflicting loyalties, she kept quiet about what had been done and her autobiography published in 1939 made no mention of what must have been the most poignant and unforgettable episode in her long and distinguished career.


Why did Lord Dawson really decide that night to kill the King by lethal injection? “The reason for his action, which Dawson frankly admits in his diary, was to ensure that the announcement of the king’s death should appear first in the morning edition of the Times and not in some lesser publication later in the day. ” Id.

After reading the account of Lord Dawson’s use of lethal injection to kill King George V, the sardonic might well say “If lethal injection was good enough for a King, it is good enough for a killer.” But that would facile, wouldn’t it?


Is “irony” the right word?

About the time my cousin George, who converted to Judaism (יהדות) upon his retirement from the State Department, was sending me (and others) an e-mail update about his rich experiences teaching and living in Haifa, Israel, a former “Grand Dragon” was going on a shooting spree at the Jewish Community Center and nearby retirement village in Kansas City.* The shooter killed three people.** Two were Methodists and one was Catholic.

The oldest victim was a physician and a grandfather who was taking his grandson, the second victim and a 14-year-old singing sensation, to an audition at the Center. The third victim was a Catholic woman who worked as an occupational therapist assisting the visually impaired. She was visiting her mother at Village Shalom. Thankfully, no Jews were killed or injured.

To any sane person, that the shooter set out to slaughter Jews but mistakenly ended up mowing down Christians stretches the meaning of irony to the breaking point. And that is a good thing.


*According to the Southern Poverty Law Center, the shooter had gone to prison in the past on weapons charges after plotting robberies and the assassination of SPLC founder Morris Dees.

**It appears likely that the shooter will be charged federally under 18 U.S. Code § 249.

What can happen when a third party pays legal fees in a civil case

Earlier, we discussed the problems that can occur when a third party pays the fees of a defendant in a criminal case.  Mike Cavendish, who writes an interesting blog by the way, is a civil litigator in Florida who has experience in both federal and state courts. He provides an interesting example of the problems that can occur for both the court and opposing counsel when a civil litigant is not paying for that party’s lawyer. The last sentence of his thoughtful comment is particularly worth remembering.

Mike writes:

I had a case wrap up last year, a dispute between two neighboring rural landowners.
We learned that the larger landowner–the alleged tortfeasor, whom I’ll call Elmer Fludd–was getting his fees paid by two different third-party payors, an insurer, and a REIT that’d invested in his land.
The identity of the fee payors became more interesting once Elmer Fludd adopted a lit strategy that a cynic would say was designed to drive the fee expenses of both sides through the roof.
Fludd’s opponents figured that because he’d found a way to not pay his own fees, American rule-style, as the suit progressed, and would likely not himself pay any adverse awards of fees against him, he’d found an asymmetry. An asymmetry from which he could create great financial attrition against his co-parties, while the lit strategy took up loads of the court’s resources.
For me the question was, is this situation where two third-party payors are absorbing all of a litigant’s legal expense going to lead to activities that are outside of the reasonable, necessary, prudent types of legal work that fee calculations and awards ought to be limited to?
A related question I had was, for the other guy, who was paying his own fees, how much of his legal expense was going to be caused by tasks of pure reaction, his lawyer would say the necessary reactions, to the free rider’s initiatives, and shouldn’t that be of concern to the factfinder when a fee award for or against him is considered?
There was a third question. I asked myself, if I am the judge, and I am considering yet another motion by Elmer Fludd, to compel, or for protective order, would I find it relevant if I knew all the expensive legal work leading up to the latest request for relief was costing everyone involved except for him?
In a civil case where neither side is the government, the asymmetry a third-party fee funder can create is something, having lived it, I will always pay close attention to, and bring to the court’s attention, if I think it is threatening due process, or if it trifles with the court’s resources.

(Emphasis added by Kopf)

Thank you, Mike, for your thoughtful comment.  For what it is worth, your concerns mirror mine.


The spring game

Photo credit: MATT RYERSON/Lincoln Journal Star

Photo credit: MATT RYERSON/Lincoln Journal Star

This afternoon the Nebraska Cornhuskers will hold a scrimmage called the “spring game.” Between 40,000 and 50,000 people will pay ten bucks to watch this annual event in Memorial stadium. Radio will broadcast the “game” live throughout all of Nebraska, and the Big Ten network will carry the game on a tape delay this evening. Joan will listen to the live play on radio and, later, watch the “game” on TV. She will be keying on the offensive line and scream filthy words when the pulling guard misses a cut block on the middle linebacker.

I won’t be attending. As expected, my immune system is now officially compromised* and my hair is beginning to fall out. That is to be expected. I am supposed to avoid crowds and particularly sick people and wash my hands like an obsessive-compulsive. Despite my minor affliction, it is all good. How could it be otherwise? Nebraska football is back in our lives.** And the river of life flows on.***



*For those who want to know the numbers, here they are: WBC – Blood L 1.4; RBC Count – Blood L 4.01; Hgb – Blood L 10.6; Hematrocrit L 33.9; MCH L 26.4; MCHC L 31.3; Neutrophil % L 27.8; Lymphocyte % H 59.0; Basophil % H 2.8; Granulocytes / Bands – Blood L 0.4.  (Key: “L” is low and “H” is high.)

**We have season tickets for the fall. We give the tickets away as gifts to friends, family members and my staff. If you are ever out this way, let me know and you can have two tickets free of charge. (I am entirely serious about this offer.) Once in  your life, you must go to a Nebraska game.  It is Americana at its best. Situated right downtown, the packed stadium of 90,000 or so shuts down the capital city of 250,000. Everyone, everywhere wears red even though the wearer may not be attending the game.

***Keller, our son who is now in Australia, played in Memorial stadium when his high school team won the large school state championship.  Seeing his visage on the big screen was one of the highlights of my life.


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