Don’t get cute at a deposition with your witness–by using objections to coach the witness and also to interrupt opposing counsel’s interrogation–even if you win at trial

My pal, Judge Mark Bennett from up the road in Sioux City, was a great trial lawyer and is a great trial judge. He is also a wonderful writer. Recently, the judge imposed sanctions on his own motion on a lawyer who defended a deposition because Judge Bennett thought the lawyer’s conduct at the deposition was improper. This order followed a successful defense at trial. Whatever Judge Bennett writes is worth reading, but this opinion is especially deserving of your attention, particularly if you are a federal practitioner who tries civil cases.

Here it is: Sanctions Order


Googling prospective jurors during voir dire–what’s wrong with that?

The Federal Judicial Center just published the following article on the use of social media during trials. It is fascinating on a lot of fronts, and I will briefly writ about one of those aspects in a moment.

But first read the article:

Social media use by jurors, and the problems resulting from it, remains a relatively infrequent occurrence, according to a survey of U.S. district judges.

Nearly 500 judges in all 94 districts responded to a Federal Judicial Center survey assessing jurors’ use of social media. The findings were published in May 2014.

Among other questions, the survey asked the judges for their strategies for curbing social media use by jurors in trials and jury deliberations. For the first time, too, judges were asked about the use of social media by attorneys.

Of the 494 judges responding to the survey, the majority of judges explained to jurors in plain language why social media is banned. This strategy must be effective; only 33 of the 494 judges reported any detectable instances of jurors using social media – and then in only one or two of their cases and mainly during trials.

Jurors access Facebook and personal blogs more often than instant messaging services. Six judges reported that a juror divulged confidential information about a case. Additionally, three judges reported that a juror communicated or attempted to communicate directly with participants in the case and two jurors revealed aspects of the deliberation process.

Judges generally learned of the inappropriate use of social media from other jurors, court staff, or attorneys in the case. Most judges cautioned a juror when social media use was discovered, but some removed the juror from the jury, while still others dealt with the juror post-trial. One juror was held in contempt of court.

For the first time, social media use by attorneys was assessed. Most judges stated they did not know whether attorneys were using social media during voir dire, and most do not address the issue with attorneys before voir dire. Only 25 judges reported they knew attorneys had used social media in at least one of their trials, usually during voir dire. Attorneys may have used social media to look at prospective jurors’ Facebook pages, to run names through search engines, or to look at online profiles, blogs or websites. Of the 466 judges responding to this survey question, 120 do not allow attorneys to research prospective jurors online during voir dire.

For more on social media use in the courtroom, the Federal Judicial Center has posted this study, as well as a 2011 survey of social media use.

Survey Finds Infrequent Social Media Use by Jurors, Federal Judicial Center (July 29, 2014).

There are interesting aspects to this study, among them being that social media use by jurors does not seem to be a big problem, particularly when judges caution the jurors. But, what I found astounding, and on the face of it silly, was this finding: “Of the 466 judges responding to this survey question, 120 do not allow attorneys to research prospective jurors online during voir dire.”

So long as the use of social media by a lawyer in the courtroom picking a jury is discreet, why in the world would a federal judge interfere with a lawyer using social media to obtain information about jurors during the jury selection process? That doesn’t make any sense to me? But, I’ve only been doing this for about 25 years, so I am open to eduction?

Civil and criminal federal practitioners, what say you? Is there any good reason some crusty old broken down guy like me ought to stop you from using Google (or some other search engine) while you are selecting your jury just because I think the Net is like voodoo?*


*In our court, we provide WiFi free to lawyers and counsel tables have computer hook-ups. 


I suppose I trust her judgment about supervision matters so much because she has been there and done that. From a juvenile parole officer in the state system, to a federal pretrial services officer in our court and now a federal probation officer who does supervision here in the District of Nebraska this former collegiate volleyball player has the trust of the cops she works with, most of the offenders and all the judges. Her name is Jen.

Jen, United States Probation Officer  (July 29, 2014). She is wearing a paper badge for a blood drive that she helped coordinate. The feds have gotten cheap, but Jen's official credentials are not yet made of paper.

Jen, United States Probation Officer (July 29, 2014). She is wearing a paper badge for a blood drive that she helped coordinate. The feds have gotten cheap, but Jen’s official credentials are not yet made of paper.

One of the things I particularly admire about Jen is that she is tough but with no bluster. She does not think carrying a gun is cool. After 12 years of service as federal officer, she is a member of our District’s search team. That is not a job for the faint hearted. Going into a house, with a firearm at your side, with narcotics cops from the Tri-City Task Force (Grand Island, Hastings and Kearney), seeking to execute a warrant for a convicted meth freak who is tweaking and dealing again despite being on supervised release is dangerous business.

But what I admire most about Jen, and what I believe is representative of most of our probation officers who do supervision, is that she truly wants offenders to succeed. She busts her guts trying to see that they do. As evidence, reproduced below are two e-mails I got from Jen.

While I will redact the name of the offender, you need to know that I would not have bet a nickel that the offender would have succeeded on supervised release. Sentenced to 60 months in prison for selling meth to a CI, she cooperated and I later cut her sentence to 30 months plus five years of supervised release pursuant to a Rule 35(b) motion. To give you some flavor for this offender, consider this: At the time I sentenced this woman she desperately needed a dentist, all her siblings were doing time, and she had three convictions for assault by mutual consent (that is, three fist fights, I’m guessing in a bar).

Here is Jen’s first e-mail to me:


Attached to this email is a letter written by [the offender] requesting early termination. In this letter, she outlines the basics of her success and compliance. This information is true and informative. Please review the well written letter for details.

[The offender] was released from the BOP [on a date certain] with her supervision expiring on [a date certain]. To date, she has nearly completed 4 out of the 5 years of supervision without any violations to note. What is even more impressive, is what she has done in the community to ensure she will always have support available. [The offender] has not only made her own map of success, she drew it out with little direction from the US Probation Office. There is no doubt that she will stay in contact with the support systems in her community, and when and if, additional support is needed, she will seek it out. [The offender] has rebuilt positive relationships with her family members. [The offender] and her mother work together as a unique unit to co-parent and support one another.

I was lucky enough to be invited by [the offender] to [a non-profit employer’s] Annual Banquet to see her be awarded the Perseverance Award. [The offender] was so proud, and her mother was equally proud. I would relate it to the type of emotion someone has when they achieve a high school diploma or college degree.

Here is a note from the [non-profit employer], summarizing her success:

[The offender] has faced overwhelming challenges in her life to develop a sense of security, stability, and wellness that has brought her family back together over the last year. She has a hopeful and positive attitude while attending groups at . . . and facilitating support groups. She finds joy in each day as she tackles obstacles towards a hopeful future.

With the above being said, [the offender] has made a successful re-entry. Her criminal thinking appears to be nearly non-existent. The risk to the community is very low, and I would concur that she is “more than ready to be released from probation.” At the least, [the offender] has received the maximum benefit of supervision. I have also discussed this case with [the AUSA] who has no objection to early release.

In the event you feel early termination is appropriate, I have attached the Prob. 35. Thank you in advance.

I was behind answering my e-mails. So, after work, I fired up the government’s laptop that I keep at home, did my due diligence and ordered early termination. The e-mail transmission that night to the Clerk’s office for filing the next day also included Jen as an addressee. This is what I got in return at about 10:00 PM that evening: “Judge, I know your busy but just had to say thank you!! I cannot wait to share this info with [the offender]!”

I need not write anymore.



A judge and a prosecutor “collude” to do the right thing

A helpful reader has called to my attention this article that appeared yesterday in the New York Times involving Loretta E. Lynch, who is the United States attorney for the Eastern District of New York. We hear a lot about prosecutorial abuse. We seldom here about prosecutors doing the right thing. In the unique case mentioned in the article which involved a crime of violence, you will see a fine example of prosecutorial discretion used to treat an offender–who made a stupid mistake by rejecting a plea agreement–with a degree of fairness that is remarkable.  You shouldn’t be surprised to know that District Judge John Gleeson plays a prominent role in this story.*


A thoughtful reader commented:

Interested in whether you have any concern, as a judge, that the U.S. Attorney had no more legal authority to undo this injustice than did the judge. At least, I can think of none. Unless I am missing something, all the U.S. Attorney did or agreed to do here is (a) not object to the judge’s doing something unlawful — again, otherwise right and just, but nevertheless, unlawful — and then (b) not appeal. The underlying injustice arose from a technically correct application of a stupid, cruel and badly written law (18 USC 924(c)), aggravated by one of the worst, hypertechnical, and thoroughly obtuse statutory construction decisions in modern Supreme Court history, Deal v. United States, 508 U.S. 129 (1993). Deal was authored by Justice Scalia, but it was a six-vote majority. Deal mandated (quite unnecessarily and mistakenly, as Justice Stevens’ dissent shows) this sort of “stacking” of consecutive sentences.

Comment by pdgpa, July 29, 2014 at 9:45 AM (italics added by Kopf).

I read Judge Gleeson’s (Gleason) opinion. He used a Rule 60(b) motion to reopen a prior 28 U.S.C. § 2255 proceeding  (Keep in mind that section 2255 proceedings are technically civil in nature.) Rule 60(b)(6) provides that the judge may grant relief from a final judgment “for any other reason that justifies relief.”  Since the United States consented to the vacation of counts of conviction that were “stacked” for sentencing purposes, and section 2255 explicitly gives district judges the power to vacate sentences that “are otherwise subject to collateral attack,” Judge Gleeson arguably had the legitimate power to vacate the underlying sentence.  While reasonable minds can differ about whether Holloway should catch a break while many others who are similarly situated will not enjoy similar treatment, it appears that Judge Gleeson acted lawfully.


*Long ago, I unsuccessfully tried a similar tactic in the infamous case of Hamedah Hasan where she too made a horrible mistake, rejecting a plea agreement, and ending up with a mandatory life sentence (later reduced through no help of the United States Attorney or the Justice Department). See, and here.

Blackstone’s Curse

If I refer to “checks and balances” I bet you think of the inherent tension between the Executive, the Legislative and the Judicial branches of the federal government.  The words “checks and balances” might also bring to mind the inherent tension between the federal government and state governments.

I don’t know about you, but I had never thought of criminal, civil and grand juries as being coequal with the Executive, Legislative and Judicial branches of the federal government and I never thought that such juries were coequal to state governments. In other words, I never thought of the jury system writ large as being in tension with and a “check and balance” to the three branches of the federal government and to the state governments as well. 

Professor Suja A. Thomas in Blackstone’s Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States, SSRN-id2424881 (Last revised: May 15, 2014) (free download) makes precisely that argument. She argues that all three types of juries used to serve as “checks and balances” to all the branches of the federal government and to state government as a historical matter, but, she asserts, they no longer exercise the power that juries once commonly enjoyed:

When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies. This [article]. . . tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority.*

Dear reader, assume Professor Thomas is right as a historical matter, and that criminal, civil and grand juries were much more active and powerful in the early days of the Founding than now. Aside from nostalgia for bygone days, why should we care that juries are now less active and the power previously exercised by all types of juries has lessened and shifted? Furthermore, assuming Professor Thomas is correct as a historical matter about the powers previously exercised by juries at or about the Founding, why would we ever desire to replicate that past now?

If you have answers to these questions, I’m anxious to hear them.


*Professor Berman at his Sentencing Law and Policy blog first highlighted Professor Thomas’ article in April of this year.





A “Rich” life

We all suffer travails. On balance, however, most of us, me especially, have rich lives.

My life is rich in intellectual stimulation. For example, Professor Akhil Reed Amar recently delivered the Chautauqua Institution’s 10th annual Robert H. Jackson Lecture on the Supreme Court of the United States.  The lecture, entitled “Robert Jackson and the Judicialization of the Judiciary,” was fascinating, insightful and a crowd-pleaser. You can watch it all here on YouTube: It is lectures like this that make my life especially rich in the world of ideas.

Then there is the joy of family like Petra traveling to Hong Kong with her mother to see the doctor and learn how the yet to be born baby is doing and proudly filling out her own her own travel papers before she boarded the ferry between the PRC and Hong Kong.

Petra filled out her own papers before boarding the ferry. She prints in big block letters much like her goofy grampa.

Petra filled out her own papers before boarding the ferry. She prints in big block letters much like her goofy grampa.

Petra and dolly on the ferry to Hong Kong

Petra and dolly on the ferry to Hong Kong.

Petra in the alleyway shops in Hong Kong

Petra in the packed and bustling alleyway shops in Hong Kong.

That’s it. There is no more, but that’s plenty.

RGK (Rich)

It’s time to rewrite or junk entirely 18 U.S.C. § 3553(a)

The pendulum swings.

It is now fashionable to be “soft on crime” rather than “hard on crime.” This is largely because being hard on crime has become ridiculously expensive. I get that, and, in fact, agree with it. However, before we provide group hugs to the special little snow flakes (each one is unique don’t you know) who will reside in our federal prisons, we ought, at least, to know what goals we seek to achieve when we send them to federal prison.

From 18 U.S.C. § 3553(a), here are what judges are supposed consider now regarding the goals of sentencing:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.1

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.

If  you believe that federal judges are like Platonic guardians imbued with the powers that only the elite can possess, these goals are perfect. Essentially, the federal judge is told to do the right thing. The Supreme Court’s line of cases (e.g., Booker) punctuates that point by making the Guidelines irrelevant for the sentencing judge inclined to sentence without meaningful external constraint. On the other hand, if you believe, as I do, that federal sentencing judges require specific direction from Congress because (1) that is the democratic way and (2) federal judges are no more smarter when it comes to sentencing than the reasonably well-informed lay person, then it is clear that we must junk or rewrite section 3553(a).

In sum, I don’t care whether section 3553(a) is rewritten or junked entirely. If Congress elects to rewrite the statute, so long as the statute sets consistent sentencing goals, I don’t care what goals Congress picks. If Congress junks the statute (or leaves it unchanged), and, by so doing, proclaims that we federal judges are to pick the goals that we think best, then that’s fine too. I just want to know what I am supposed to do at sentencing. Is that too much to ask?
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