A “thank you” to my wonderful former and present colleagues

Over the last weeks when I was hospitalized and while recovering both of my former law partners, Ed Cook (the best lawyer I have ever known) and Judge Jim Doyle, called to “buck up” their old partner. Their calls brought back wonderful memories of our time together, and my love of these fellows. Never once when I practiced law with Ed and Jim did I feel alone. In common parlance, they always “had my back” while always insisting that our clients came first.

My judicial colleagues have done the same thing during my recent health scare. They looked after me with care and concern but with the proper perspective that our litigants came first. After I declared a mistrial before going into the hospital (because my ego forced me to try to play the “hero child” in beginning the trial in the first place), Chief Judge Laurie Smith Camp, Judge Joe Bataillon, and Judge John Gerrard stepped in and, with my complete agreement, took over most of my caseload. This not only burdened them personally, but raised all sorts of tedious and complex administrative issues that Magistrate Judge Zwart handled with nary a hiccup.

Maybe a three person law practice or small federal court is unique. All I know is that I owe a debt of gratitude that I shall never be able to repay to my former law partners and present judicial colleagues. Carrying for another lawyer/judge who is sickly in a small operation like my former law practice or my present court is tricky. In the balance is the concern for one’s fellow law partner or judge on a personal level contrasted with a rock solid commitment that the interests of the client/litigant always comes first. Striking the proper balances requires a well-developed sense of decency and principle.

Thanks to Ed and Jim for teaching me about what a law partnership can really mean when operated by lawyers truly committed to each other and their clients. The same goes double for the judges (and staff) of the United States District for the District of Nebraska, particularly Laurie, Joe, John and Cheryl. I am very fortunate and very thankful.




Two (silly?) questions about the cell (smart?) phone cases

In this post, I ask two questions about the Supreme Court’s recent “cell phone” cases.  To be clear, I express no opinion on the merits of pending or impending matters that appear or may appear on my docket as a result of those cases. That said, because it is practical and rule based, I like the Court’s simple approach–get a warrant.  I do have questions though.

First, what is a “cell phone?”  Is a “cell phone” a “smart phone?” Is a “flip phone” that can send and receive phone calls and text message but perform no other function save for maintaining a call log and a contact list, a “cell phone” within the meaning of the Court’s new jurisprudence? If so, why?


Second, virtually all smart phones can be locked.  That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute.  At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.)

If a digital device is easily locked and therefore protected against prying eyes when locked, there is little doubt that the owner has a reasonable expectation of privacy in the massive storage capacity of that device provided the locking mechanism is enabled. A warrant therefore would be required to search the contents of a locked cell phone no matter how one views the Fourth Amendment.

But, if the phone is not set to lock, why should a warrant be required when the owner has not taken a simple and easy step that would protect his or her privacy when out and about in an auto with his smart phone? Why is the search of this vast “open container” lawfully seized by the police, but without a warrant, unreasonable?


These are probably silly questions. Nonetheless, humor me. What say you?





Another riff on my lack of an Article III toilet

A highly regarded Lincoln trial lawyer wrote me a note yesterday. She told me that I ought to rethink my constant bitching about the fact that I don’t have my own Article III toilet.  She pointed me to this article, and photo, in the ABA Journal, entitled Exploding courthouse toilet is blamed on recalled product. Because I continue my sophomoric view of the world, I just loved the idea of an exploding toilet in some state courthouse. It gave me the opportunity to write about “shit” without using the word.

However, I realized that if I were not careful, I might further a misimpression. Sadly, and like many others, my correspondent failed to recognize that federal Article III toilets, including the entire bathroom, are made of gold and not cheap porcelain like the one used in the Montana courthouse that is the subject of the article.  This is a common error made by mere trial lawyers who never have the opportunity to see (or use) what stimulus spending can do when put to proper use. What a shame.

Here is a pretty close approximation of what I am missing (and what I am entitled to):

Photo credit: Mike Clarke / AFP / Getty Images and Time.  See http://content.time.com/time/specials/packages/article/0,28804,2016258_2016259_2016264,00.html

Photo credit: Mike Clarke / AFP / Getty Images and Time. See here.

No, Jeanelle, I shall not stop complaining. If I have to I will play the C (cancer) card. I hope it doesn’t come to that. But the Administrative Office of the United States Courts in Washington is herewith warned.


Riding the Bronch and the magic of words

I got out last Sunday late in the afternoon. After seven days in the hospital, I have eaten all the jello that I ever care to eat. I spent this week at home “recovering.”  So, here is kind of status update, plus an observation about things that would appear unrelated to most people but seem related to this quirky old fellow.

I had acute Bleomycin pulmonary toxicity (BPT).  Basically, the lungs become inflamed and fail because one of the chemo drugs (Bleomycin (Bleo)) decides to play nasty. People who suffer from Hodgkin’s lymphoma (HL) are typically treated with Bleo as a  part of the chemo cocktail and that puts them at risk. The potential consequences BPT are not insignificant. See, for example, here.

With help of an infectious disease specialist, a lung specialist and my oncologist working together, I was fortunate. They were able to diagnose and treat the problem rapidly and effectively. Without going into detail, both the diagnose and treatment of BPT are tricky and require close coordination between the specialists. After receiving their fine help and enjoying this week’s rest, I restart my chemo regime this coming Tuesday, but without using Bleo. The absence of Bleo in the regime is not a good thing, but there is no substitute for that drug in the current treatment protocols. Besides, there is no hard data that suggests that discontinuing Bleo at my age, and given my otherwise good progress, will make a difference in dealing with the HL.

Now, hold on, I am about to turn abruptly.

Radical legal realists (previously know as the “Crits”), and many language theorists more generally, believe that resolving disputes can never be based upon words having immutable meanings. That is, there is no “right” answer to the meaning of words and consequently the correctness of a legal decision. According to these folks, the judge should pick the meaning of words that takes into account the causes and consequences of legal disputes and legal decisions. Any other approach is “word-magic”or “transcendental nonsense.” JOHN HASNAS, BACK TO THE FUTURE: FROM CRITICAL LEGAL STUDIES FORWARD TO LEGAL REALISM, OR HOW NOT TO MISS THE POINT OF THE INDETERMINACY ARGUMENT, 45 Duke Law Journal 84, 90 (1995) (footnotes and citations omitted).

Tighten your grip, I am about to swerve again.

While I was in the hospital, I rode the “Bronch” (for the purpose of lavage). Basically, what happens is that a lung doctor sticks a scope with a camera down your throat, the doctor visually examines the lung, the doctor injects a saline solution through the tube and into the lung, and the doctor withdraws the saline solution for later analysis. In my case, the doctors, a technician (I think) and a nurse came to my room dressed in “yellow hazemat” suits with their machinery and equipment.  The lung doctor explained the procedure and assured me I would feel nothing since I would be lightly sedated. Below is a pretty good photo of somebody like me riding the “Bronch” from his hospital bed.


The lung doctor asked if I had any questions. I said that it sounded like he wanted permission to “water board” me. Without missing a beat, the doctor replied that he preferred to think of it as “power washing.” We both laughed, and the sedative began to flow. The last thing I remember is drifting off amused by the magic of words.












Update –Hospital slows blogging and causes mistrial

Before Monday morning bench trial checked in at clinic.

Short summary:

1. Pet scan showed excellent results on lymphoma.

2. However, Pet scan showed big problem in both longs–direct admit to hospital.

3. Lung problem probably a result of one of the chemos drugs. This is a known risk of using that particular chemo drug.

4 As a long as I can walk absent human help and my blood oxygen level is .90 or above the plan is to go home Sunday.

5. Atter that, figure out modified cancer treatment going forward without offending drug.

6. I won’t be taking any trials for next sixty days at a minimum. Hearing and sentencing I will continue to handle

I will keep you know as I no more. Blogging will be slow.

All the best.


PS TO LAWYERS: My sincere apologies for mistrial of your important trial. As you know, a new judge will be assigned.  Undoubtedly less goofy!

How do I put this delicately . . .

The clinic wants  me to stop losing weight. So, they gave me samples of stuff with a lot of liquid protean. I drank one after my early morning blood draw yesterday. Hours later, without warning while listening to the testimony of the plaintiff during a non-jury trial, I learned something. You can’t look dignified calling an immediate recess, turning and exiting through the secure door behind you at a run while stripping your robe off at the same time, and then sprinting through the jury deliberation room to find the nearest bathroom. When I returned to the bench, the lawyers and everyone else did their absolute best to keep their faces straight, I mumbled some lame toilet joke, and the trial proceeded apace. That folks is legal realism.


Judiciary Supports Sentencing Amendment Retroactivity with Delayed Implementation, Training

I just got this e-mail from the Administrative Office of the United States Courts:

The federal judiciary, which administers the federal probation system, supports retroactive application of a proposed amendment to the U.S. Sentencing Guidelines that would lower penalties for most drug offenses, provided that:

1. The Courts are authorized to begin accepting and granting petitions on November 1, 2014;

2. Any inmate who is granted a sentence reduction will not be eligible for release until May 1, 2015; and

3. The Sentencing Commission helps coordinate a national training program that facilitates the development of procedures that conserve scarce resources and promote public safety.

Judge Irene Keeley, chair of the Criminal Law Committee of the Judicial Conference, expressed concern about the impact the added workload would have on public safety, if the proposed amendment is approved. In the past ten years, probation staffing declined five percent, while the post-conviction supervision caseload rose 19 percent.“The driving factor for the Committee’s decision was fundamental fairness,” Judge Keeley said in testimony today before the U.S. Sentencing Commission. “We do not believe that the date a sentence was imposed should dictate the length of imprisonment; rather it should be the defendant’s conduct and characteristics that drive the sentence whenever possible.”

“The release of thousands of additional offenders to supervision when the system is already dealing with diminished resources and an increasingly risky offender population raises several public safety concerns,” Judge Keely said.

“We believe that the delay in the effective date that we have recommended will help the courts and probation offices manage the surge in workload while we try to secure additional resources,” she told the Commission. “We also are confident in the ability of judges to discern suitable candidates for sentence reductions, and that through close coordination between staff in the judiciary and in the Executive branch this important amendment can be implemented effectively without putting public safety at risk.”

By the way, it was not a slam dunk that the federal judiciary writ large would support retroactivity.  For me, I am glad that it has done so.  The additional tweaks seem reasonable and. in any event, unobjectionable.  RGK 

Another vetting vignette

I had been a United States Magistrate Judge, for all of five months or so, when my old boss Judge Don Ross took senior status and then Chief District Judge C. Arlen Beam was nominated to take Don’s spot.  That left an opening on the district court bench, and Judge Ross urged me to “apply.” Unlike in more recent times, “apply” did not mean filling out formal paperwork for the home state US Senators. It meant letting the right people know of your interest.

I told Judge Ross that I was reluctant to apply because I had just become a magistrate judge, and he replied that these opportunities did not come along very often, so I should not be stupid. Judge Ross could be blunt. So, I “applied.” Truth to tell, I “applied” to Judge Ross and he passed along my interest to the powers that be.

I found myself at Main Justice in the summer of 1987 as preparations for the Bork nomination and hearing were in full swing. I think I wore a vested wool suit with vague pin strips and highly polished shoes. Of course, that meant I was covered from head to toe in perspiration as I was ushered into a room for my first appointment. Like Bush 41, President Reagan had the legal policy lawyers at DOJ do the interviews for non-entities like district judges.

I was supposed to have five interviews of about an hour each and then a final interview with the head man. Honestly, the interviews were fun. The DOJ lawyers were extraordinarily smart and asked tricky question. I truly enjoyed the give and take. After the fifth interview, I was told that a sixth interview was added for a guy who normally dealt with appellate judges. That interview went fine too, although of all the interrogators the last one was clearly the smartest and toughest. By the way, stacked in his office were all the papers that Robert Bork had ever written.

By mid afternoon, it was time for the last interview with the big cheese.  This one was brief and to the point. He asked me why the President should nominate me. Throwing caution to the wind, I told him the six fellows that had just interviewed me would tell him, if he hadn’t already asked, that I was the best candidate for the job.

At the point, he cracked a small smile and asked what I had done to piss off Congresswoman Virginia Smith. I told him that I had represented the state in an impeachment proceeding against Paul Douglas, the Republican Attorney General, but that the charges were bipartisan. Nonetheless, Mrs. Smith and many of her supporters were friendly with Mr. Douglas, and they questioned my Republican bona fides in taking on the investigation and ensuing impeachment.

Virginia Smith was small woman with enormous national political influence despite the fact that she represented the third district of Nebraska. The boss man at DOJ was blunt. He said: “We might be interested in your nomination, but we aren’t taking on Mrs. Smith for you. If you can talk her out of opposing you, call me back. Otherwise your done.”

When I got back to Omaha where I was then stationed, I called the one person that I knew could change Mrs. Smith’s active opposition. As it happened, I knew Bud well, he was a lawyer in Lexington. While we were not friends, we had always been cordial. He and his wife were close confidantes of Mrs. Smith and long time friends of the Attorney General. I asked Bud if he might be willing to intercede on my behalf, and he said no. He was not unpleasant, but he was absolutely firm in the view that I had made a choice in proceeding as counsel for the state against a fine Republican Attorney General and I would now have to live with consequences. In short, I was toast.

Mrs. Smith got the White House to nominate a nice fellow from her district, but the ABA would not give him a qualified rating. Then, she convinced the White House to nominate another lawyer from her district, state district judge Bill Cambridge. I had known Bill in the practice and respected him particularly his humility and work ethic. He was easily confirmed, and Bill and I became fast friends. I remained a United States Magistrate for five more years.



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