Sentencing a bad cop

I’m going to have a busy day today. Blood tests at the clinic followed by a short meeting with a nurse to discuss the numbers.  Then off to the southwest on United through Denver. But before I leave, I urge you to go over to the Southern District of Florida Blog and read point 3 of news and notes. It describes a bad cop’s sentencing in federal court. This cop falsely arrested a woman. Why?

The local newspaper gives this account of what happened to the victim, Ms Romeo:

Benjamin did it as a favor to Rothstein [a lawyer, banker and fraudster] and Romeo’s ex-husband, Douglas Bates, who was trying to gain the advantage in a custody battle over Bates’ and Romeo’s children. Bates, who had his own law firm, has been disbarred and is now serving five years in prison for his role in the fraud.

Also in court was the couple’s son, Andrew, who has autism. His prescription medication was among the pills that Poole and Benjamin used to set up Romeo’s arrest. State prosecutors later declined to prosecute Romeo because the pills were all legitimately prescribed for her and her son.

“They utilized my autistic son’s medication to pull this off,” Romeo told the judge. “I don’t understand how educated men can abuse their powers so grossly.”

I am not much for beating up defendants at sentencing. The huge majority of the time I merely recite my standard litany on the section 3553 factors to satisfy the Court of Appeals, and exit the bench quickly. Other judges use sentencing to berate the defendant for his or her crimes. That’s simply not my style. But, I’m not saying it is wrong to do so.

In the Florida case, Judge James I. Cohn imposed the maximum sentence (five years), lashed the defendant verbally and then had the ex-cop handcuffed behind his back in the courtroom. The victim and everyone else saw justice being done in a very stark way and the judge made clear that the handcuffs-in-the courtroom routine was intentional.*

All of this brings me to the question of the day? When, if ever, is it proper for the federal sentencing judge to whip up on the defendant (verbally, of course) at sentencing?

RGK

*This case reminds me that there really are bad cops. I know. Duh! While claiming to be a realist, at times I think more like a silly romantic. Oh, well, I have plenty of time to change–for the uninformed, that’s ironic.

A disturbing anecdote about how some in the legal academy treated Professor Chris Fairman when he wrote his serious law review article entitled “Fuck”

A reader of my recent posts could not be faulted if he or she concluded that I have it in for all law professors. That is not true. But if you read this long post, you will find a disturbing anecdote that should give the reader pause about the health of law teaching.

I have enormous respect for those who devote the themselves to teaching the law. If I have a complaint, it is that many law teachers ignore the legal profession and the judiciary. But for those who devote their scholarship to areas that make a difference to the legal profession and the judiciary, the legal academy provides a critical service. Let me mention a few professors for whom my respect is particularly high.

Nancy Gertner retired from the federal district court bench and now teaches at Harvard. Her insights are penetrating and deserve the attention of federal judges and practitioners if only because she is brilliant, has “been there and done that” and pulls no punches when it comes to legal realism and the federal courts.

My law school–the University of Nebraska College of Law–is the proud first home of Roscoe Pound and sports numerous professors whose committment to the practice is evident and very much in the spirit of Pound. Dean Susan Poser‘s scholarship and teaching regarding legal ethics provides one good example. Kevin Ruser, the M.S. Hevelone Professor of Law at the College, and Steve Schmidt (who I had the pleasure of teaching), Associate Professor of Law and Courtesy Associate Professor of Forensic Science, are responsible for the very high quality clinical side of legal education at the College.

A former DOJ trial lawyer, the legendary Professor Mike Fenner at the Creighton Law School has devoted his decades of acclaimed teaching and penetrating scholarship, on evidence and other federal matters, not only to his law students but to lawyers and federal judges alike. Same, same for Pat Borchers. He is a former law clerk to Justice Kennedy when the Justice was on the Ninth Circuit and, after that, Pat was a litigator of important cases in California. Pat, the former Dean of Creighton Law School, is now Professor of law and head of the Werner Institute on conflict resolution at Creighton. Among other things, Pat brings his subject matter expertise on the federal courts to that important new endeavor, an endeavor that is already having a huge impact on federal practice and the federal courts.

But the “superstar” when it comes to helping the federal bar and federal judges is Professor Doug Berman at Ohio State’s Michael E. Moritz College of Law. His blog entitled Sentencing Law and Policy has been the most important contribution a law professor has made to the federal courts in my lifetime. He singlehandedly took a new medium and turned it into an interactive teaching and information tool of incalculable value to solving the real world problems facing federal practitioners and federal judges.

I want to make clear that the reader should not assume that any of the professors cited above agree with anything I have written in this blog. I have cited these scholars as examples of professors I highly respect. They may think I am a jerk and an idiot. That said, let me next turn to turn to the precise point of the post.

Until now, I have believed that law school professors thought of themselves as a community of scholars engaged in the joint enterprise of seeking the truth. I assumed that there was a warm collegiality that fostered investigation into legal subjects that the rest of the world might ignore or find too disturbing to contemplate. I earnestly believed that among this community of scholars that there were no taboos. Intellectual honesty was the only requirement for the law professor and scholar. If the following anecdote is representative (and I fear that it is), my assumptions were dead wrong.

Like Doug Berman, Christopher M. Fairman teaches at Ohio State. He is a full professor–the Alumni Society Designated Professor of Law–and the Associate Dean for Faculty. He graduated Phi Beta Kappa from the University of Texas. After nine years as a high school history teacher in the public schools in Texas, he received his J.D., in 1994, with Honors, including Order of the Coif, from the University of Texas School of Law. Professor Fairman teaches Civil Procedure I and Legal Writing and Analyses to 1L students and Civil Procedure II, Professional Responsibility, and a seminar on ADR Ethics available to second- and third-year students.

Fairman knows his way around the state and federal courtrooms. He was law clerk to the Honorable J. Woodfin Jones, Texas Court of Appeals for the Third District, Austin, Texas (1994-95).  He was a law clerk to the Honorable Fortunato P. Benavides, United States Court of Appeals for the Fifth Circuit, Austin, Texas (1995-96). He was a litigation Associate at Weil, Gotshal & Manges LLP, Dallas, Texas (1996-2000).

According to his faculty page, “Professor Fairman’s scholarly interests can be easily summed up: Words matter.” Professor Fairman first book is entitled Fuck: Word Taboo and Protecting our First Amendment Liberties (Sourcebooks 2009). The book builds on his scholarship in taboo language found in his highly popular law review article, “Fuck,” 28 Cardozo Law Review 1171 (2007).*

Christopher M. Fairman Associate Dean for Faculty; Alumni Society Designated Professor of Law

Christopher M. Fairman
Alumni Society Designated Professor of Law and Associate Dean for Faculty

The reader will recall that I favorably cited Fairman’s law review article in an earlier post. In my view, that law review article was written by an accomplished legal scholar and former practitioner with a proper sense of the real world. After carefully analysing the historical, linguistic, etymological, legal, and other sources, Fairman came to believe that the word “has no intrinsic meaning at all . . . .” I found the ending remarks of Professor Fairman’s article particularly important:

Regardless of its source, when taboo becomes institutionalized through law, the effects of taboo are also institutionalized. If we want to diminish the taboo effect, the solution is not silence. Nor should offensive language be punished. We must recognize that words like fuck have a legitimate place in our daily life. Scholars must take responsibility for eliminating ignorance about the psychological aspects of offensive speech and work to eliminate dualistic views of good words and bad words. Taboo language should be included in dictionaries, freely spoken and written in our schools and colleges, printed in our newspapers and magazines, and broadcast on radio and television. Fuck must be set free.

Having obtained tenure before the article was published, Fairman was proposed for elevation to full professor after the article came out. In that process, Ohio State sends out requests to law professors at other universities inquiring about their views of the candidate. Fairman ran into a buzz saw.

Although his article was the most downloaded article that year on the Social Science Research Network, one silly reviewer said the law review article wasn’t even competent scholarship, much less of high quality. Another law professor known for producing empirical information and analysis regarding the penetration of legal scholarship excluded Chris’s article from the list and analysis even though he was using the Social Science Research Network and the article was the most downloaded from SSRN. The reason? Because it was  “provocatively titled.” Professor Fairman wrote a response to that slight which, in my opinion, revealed beyond doubt that the exclusion was, in my words, stupid and, perhaps, the product of a rank and mean elitism.** Despite all of this, Fairman was promoted. That says positive things about Ohio State.

So, why I have I written this post? Believe it or not, I have written this post because I care deeply about the legal academy. Federal practitioners and judges need law professors to help us. If Professor Fairman’s experience is any indication, a fair number of law professors ought to stop eating their young. If they continue to put obstacles in the path of other young scholars like Fairman, the law schools will become completely populated by professors known by practitioners and the judiciary for their utter irrelevance. That would be disaster.

Update:  Please go and read Scott Greenfield’s piece entitled Teaching Law, for Real

RGK

*I read the article when it first came out. I was particularly interested in the article because of an experience I had with a big law firm in Ohio in the summer of 1971 when I worked as a “summer associate” while also avoiding the draft. I was doing research for one of the partners who, acting for the ACLU, was defending a kid charged with some sort of crime for wearing a tee-shirt in public that read, “Fuck the draft.” I wish I would have had that article in 1971. 

**Professor Fairman rightly asked whether Randall L. Kennedy’s “Nigger!” as a Problem in the Law, 2001 U. Ill. L. Rev 935 (2001) would have been excluded.

“Slippery” Noodles

I love China.

Joan, my wife, was born in Shanghai which is now the largest city by population in the world. Her mother and father had met and married in China during WWII. John was an officer in the Army Air Corps and Florence was a secretary for the State Department. After the war ended, they remained in China and John imported goods from America. Of course, they left when Chairman Mao and the gang came to town.

In the early 1990s, Joan and I traveled to Shanghai. We hired a very experienced guide who spoke English as if she had been born here. She was open about the fact that she had polished her English while in the Chinese Army monitoring American military traffic.

We had a wonderful time, and may have found Joan’s home in the old French Quarter. We parked the car near where the guide thought the home might have been and got out and spread a large old map on the hood of the car.

We soon drew a crowd of friendly Chinese. There were several old people who gave various opinions about whether we had found the home. If we did find the home, it had changed dramatically. It was now a multi-family dwelling that stretched to the street. The front gardens of Joan’s time were gone.

This silk piece hangs in our living room in Nebraska.  It came from Joan's home in the French Quarters of Shanghai around 1947.

This silk piece hangs in our living room in Lincoln, Nebraska. It came from Joan’s home in the French Quarter of Shanghai circa 1946-1949.

Daughter Lisa and her family live in China (Shekou) across the bay from Hong Kong. Lisa and Karel are teachers. Petra, who was born in a Chinese hospital in Guangzhou (formerly Canton), has “her” ayi (阿姨 – āyí) (“aunt” in Chinese) who she loves dearly. This very nice woman (we have “met” her on Skype numerous times), who speaks no English, looks after the kids when Karel and Lisa are gone. As a result, and even though she is not yet five, Petra is picking up Mandarin and a lot of Chinese culture to boot. (Ayi’s grandaughter and Petra are good friends.)

Recently the family went out for dinner at a tiny street cafe near their home. Petra ordered the meal in Chinese for each of the family members. Petra ordered the “slippery”* noodles that she so loves for herself and consumed the meal using chop sticks with no problem. “Slurping” is mandatory.

noodles.

I hope Lisa, Karel and the grandchildren stay in China. There is so much there to learn and the people are wonderful. The “slippery” noodles are good too.

RGK

*“The Chinese like their noodles long and slippery, the better to slurp down noisily.”  The Cook’s Thesarus: Asian (last accessed July 20, 2014).

David Markus is stalking me

On Wednesday, I ascended the bench in the customary manner, that is, both literally and figuratively. It was magic for everyone in the courtroom, of that I am sure. It was a criminal case involving a series of serious supervised release violations.

I had not been the courtroom for about a month due to technical difficulties with my blood. Anyway, I put on my robe and the CRD came to get me. I walked up the back stairs, checked to make sure that no one could see my tennis shoes below my robes, opened the door, and all rose. As I said, it must have been magical for them.

David J. from Broward Boulevard in Fort Lauderdale, FL represented the defendant.  After he entered his appearance, the first thing David J. said was, “David Markus says hello.”  I replied “tell him ‘hello’ back.”

David J. did a wonderful job for this client. Despite the early recommendation from probation that I max out the defendant, the defendant escaped prison entirely after making a big effort to reform. Underlying state criminal charges were dismissed. The probation officer was so impressed with the defendant’s reformation that she issued a second recommendation that effectively meant no prison time.

I had a little gentle fun with the defendant. While taking his admission, I asked whether he was sure he wanted to proceed “with a Fort Lauderdale lawyer.” He grinned, and said: “Yes.”  David J. had coached him well.

I sure enjoyed Wednesday despite the fact that David Markus stalked me. By the way, his blog on the goings on in federal court in Miami and the surroundings is, I am told, required reading for federal practitioners down there where judges can be mistaken for gators.

__________________

I am going to be serious for a moment.

The notion that we lawyers are all brothers and sisters before the bar is NOT old-fashioned. The prosecutor, Mick, in the case described above, is a great guy and great lawyer. Mick used to be a police officer. He has some great stories about walking a beat. He took my rejection of his Guideline sentence request with good nature. That did not surprise me. Mick, like David J., has been around the block.

RGK

 

 

News flash re Sentencing Commission and retroactivity

I just received a message.  Part of the content is very important to federal criminal practitioners.

The United States Sentencing Commission previously approved an amendment to the Drug Quantity Table reducing base offense levels by two. That amendment goes into effect on November 1, 2014, absent action by Congress. This afternoon, by a unanimous vote of 7-0, the United States Sentencing Commission decided that the amendment reducing the offense levels in the Drug Quantity Table by two levels would be applied retroactively. The Commission also determined that the effective date of retroactive application should be delayed for one year. Consequently, inmates granted a custody term reduction pursuant to retroactive application of the guideline amendment can be released no earlier than November 1, 2015.

I have been following this practice, with the agreement of the US Attorney, for quit some time. RGK

Tooting my (tin) horn

I am going to toot my own horn. Please understand, however, that my horn is tin and I can (and, in any event, should) only produce a weak toot.*

Photo credit: www.etsy.com

Photo credit: http://www.etsy.com

Tony Mauro is a Supreme Court correspondent for the The National Law Journal and the Supreme Court Brief. He is a member of the USA TODAY Board of Contributors. He is one of the most highly respected legal journalists in the nation.

Last night, Mr. Mauro posted an opinion piece in USA Today that was very supportive of my blogging efforts (“Kopf’s a voice worth listening to — hopefully for many years to come.”) In addition to being flattered, I took his support as an encouragement to continue my efforts. That support means a lot to me coming from someone with the impeccable reputation, skills and experience of Mr. Mauro.**

RGK

*My lab numbers fell very low when they sucked blood from my port on Tuesday. This is not a surprise. My breathing is labored and I walk like the old man I am becoming. That said, I can still toot a little.

**I also feel an increased obligation to do the absolute best job I can.

Nostalgia

Stockville is in Frontier County, Nebraska. The population was 25 in 2010. It is the county seat of Frontier County, Nebraska. That means the courthouse is there.

Folks outside of Stockville but within Frontier County think the people of Stockville stole the county seat back in the day. It is clear that something happened because men from another town tried to steal it back.*

The driving time from Lexington, where I practiced law, to Stockville is about an hour and ten minutes.  A good part of that is gravel. You can save time by taking a dirt road, but it is perilous when wet.

Born in 1897, Robert Van Pelt was from Stockville. He became Nebraska’s federal judge in Lincoln. He also never forgot his home town of Stockville. Much of the historical material about Stockville comes from Van Pelt’s writings.

I knew Judge Van Pelt. A year or so before his passing at 91 while still sitting as a senior district judge, he participated in my sad little swearing-in ceremony as a United States Magistrate Judge. My wife had just died unexpectedly. Accompanied by my children, and my dear mother-in-law Merle, I took the oath. Judge Van Pelt told me that I would do fine so long as I never did anything that would make her ashamed. That was good advice.

Photo credit: Ammodramus - Own work.  Frontier County Courthouse in Stockville, Nebraska; seen from the southeast. The building was constructed in 1889.

Photo credit: Ammodramus.  Frontier County Courthouse in Stockville, Nebraska; seen from the southeast. The building was constructed in 1889.

The first time I ever went to the courthouse in Stockville a horse was tethered to the steps of the courthouse. There were other peculiarities. In order to get to the district courtroom, you had to walk up very, very narrow stairs that turned several sharp right angles to reach the second floor. Once there, you found a large room with chairs for the jury near a heater that went from the floor to the ceiling. If I remember correctly, the district judge (who rode the circuit) sat at an ordinary desk. Counsel were seated at two tables and each table would seat two people. The witness sat next to the jurors and the heater.

I tried a civil jury case in Stockville. My opponent was John Wightman, a friend of mine from Lexington. John is a very good lawyer. He is extremely smart, and his take on people is even better. I suppose that is why he is now a Senator in the Nebraska Unicameral.

I vividly remember breaking for lunch. I had two choices. I could grab a burger and something to drink at a tiny bar. (The burgers were greasy and great.) Or I could walk across the street to the unused church. Ladies from Curtis, Nebraska would come to Stockville when a jury trial was conducted to raise money for charity by providing lunch. These fine women would cook up a great big meal served family style in the basement. The judge, the jurors, the lawyers, the witnesses and anyone else who was hungry all ate together. Not wanting to offend the jury, I decided I would eat with them and everyone else. For a dollar, I got more than I could possibly eat. I really liked the chicken.

After each lunch, we would resume the trial. After each trial day was over, I drove back to Lexington and returned in the morning. I don’t remember whether I took the dirt road or stayed safe on the gravel. While I have absolutely no recollection of what the case was about, I know I lost. I have a clear memory of shaking John’s hand and congratulating him while the jury shuffled out avoiding my gaze.

What’s the point of this story? I’m not certain. But I can say it makes me happy.

RGK

*According to a brief history of Stockville, “At one time the men of Stockville armed themselves to stop an attempt to seize the county files by force and set up shop in another town. The incident, luckily, ended without bloodshed and the county files remained in Stockville.”

Behind the curtain: Even a small federal district court is a big and complex business

I remember the conversation. It was probably the most important talk I had when I served as Chief Judge.

Judge Bataillon and I were talking. Both of us felt that we did not understand the budget process well enough, and that unintentionally the Clerk’s office, the Probation office, the Pretrial Services office had become fiefdoms where the less the judges knew the better. The more we talked the more a structural image began develop. What if we developed a “shared services” department. That is, a department that would provide the Chief Judge and all the other judges with detailed financial management information and require the court units to shares services with each other while keeping the court units’ operational missions intact.

I asked Joe whether he would head up such an effort. He agreed. Now, I will digress for a moment. Judge Bataillon is a legend back in Washington. If you ask anyone back there about Joe you hear nothing but raves. Joe is known for tackling tough problems and dealing with them in an effective manner. That is why Joe has served on the advisory committee for the national budget and that is why Joe chaired a judicial conference committee on space and facilities. The confidence placed in Joe by the Chief Justice and the Administrative Office of the United Courts is a testament to Judge Bataillon. In short, Joe gets things done with a minimum of strife and a maximum of consensus.

So, Joe set off. He gathered the court unit executives (Clerk of Court, Chief Probation Officer and Chief Pretrial Services Officer) together plus their deputies and pitched the idea to them. Those folks were understandably hesitant, but agreeable to pursuing the matter as long as no commitments were required. They trusted Joe. About a year later, after a lot of research, travels throughout the country to see how other court’s functioned, and a lot of bargaining our “shared services” department became a reality. In fact, it has now become a national model. This is due entirely to Judge Bataillon and our unit executives who have labored long and hard to make this new approach work seamlessly.

“Shared services” works like this.  The court unit executives sit as joint managers of the business side of the court. Many services are now shared between the units (take IT for example) and each unit contributes a portion of their budge to receive those service. Additionally, the budget of each unit is essentially collapsed into one integrated budget for the entire court. Money can be moved back and forth as the need arises. Financial controls were instituted* and a budget committee of the active district judges was established. Each quarter the budget committee meets with the court unit executives and our financial staff to review the budget and to determine future planning scenarios.

A word about budget decentralization is in order. Each federal district court receives an annual allotment from Washington for the entire operation of the court except for rent* and several other minor categories. With certain minor restrictions, the local court can do with the allotment as that district thinks best. There is a huge problem however. Congress almost never gives the federal judiciary an appropriation until it is too late to plan. The shared services staff is therefore tasked with predicting the future. This is an enormously difficult task, and it requires the aid of real financial professionals. Luckily, and as you shall see, we have two men who fit that bill perfectly.

Let’s talk scale. We are categorized as a “small” court back in Washington. Nonetheless, our budget runs into the tens of millions of dollars. $11,331,875 to be precise this year. Excluding the Executive Summary, the active judges receive on a quarterly basis a packet of information in Excel form that typically runs 30 pages or so long. It pinpoints where we are now on spending compared to our budget and forecasts out for two years (using complex alternative scenarios) where we will be in the future. It is a very sophisticated document that allows the judges and the court unit executives to make plans without guessing (too much). The quarterly meeting with the judges and the court unit executives (the Budget Committee Meeting) has become, in my opinion, the single most important effort our court engages in when it comes to management of the business side of our court.

Of course, the “Shared Services” department also helps the court units “share” services. Need a cellphone? Call the fellow who does procurement for the entire court. He knows the procurement regulations, and he is an expert at getting you what you need, in compliance with the regulations, at a cost that is good for the taxpayer in a speedy manner.

OK. Now you have a sense of “shared services.”  I next want to introduce you to the two men who have significant overall management responsibilities in that area. I asked these men to prepare their own statements, and I reproduce them below.

Pat and Terry work in the shared services structure of the United States District Court, providing support to District, Pretrial Services, and Probation. On behalf of the Court Unit Executives, Pat and Terry develop and present budget reports to the Active Article III Judges on a quarterly basis. Reports included in the budget package include an executive summary; a financial oversight report showing the budget condition of each separate court unit and as a combined entity; a workload report showing trends in staffing; as well as spending and discretionary plans for each court unit. In addition, one of their most challenging tasks is forecasting and presenting reports on future-year allotment projections (salaries, in particular), which are subject to partisan politics, the economy, and an ever-changing allotment distribution structure.

Terry Brownfield has a B.S. in both Accounting and Business Administration. He has the Certified Management Accountant designation and has passed the Certified Public Accounting examination. He has 35 years of accounting experience including as a Controller for a manufacturing company and the last ten years as a budget analyst for the court. His responsibilities for the court include budget preparation and monitoring as well as payroll forecasting and reconciliation. He also performs internal control reviews for various court departments, adhering to the motto “ In God we trust… all others get audited”.

Terry

Terry

Terry takes pride in providing management with accurate and substantive information to allow management to make good decisions and in applying his accounting background to business situations.

Pat

Pat

Pat Williamson is the administrative supervisor for the shared services units and has worked for the courts for 22 years, including stints in procurement and budget. Pat has a B.S. in Finance from the University of Nebraska–Lincoln. Pat manages the business functions of the court, including managing professional staff in finance, budget, procurement, property, space and facilities, internal controls and audits. Pat has worked with the Administrative Office of the U.S. Courts as a subject-matter expert and court mentor for the national implementation of the Internal Control Evaluation (ICE) system and development of the Self-Assessment modules used by courts during their annual internal audits.

Pat and Terry are treasures. But we would have no need for them without Judge Joe Bataillon and our court unit executives. Without them, “shared services” would not have been implemented. They had the courage and foresight to create and then implement a truly unique method of managing the business side of our little court. Like Nebraskans of the 19th century, they are pioneers.

RGK

*From time to time, our court, like all other district courts, is audited by outside auditors without hardly any advance notice. These audits are stressful and similar to audits one is familiar with at banks or other large businesses. Did you know that there are “Generally Accepted Government Auditing Standards?” We were given a completely clean bill of health at our last audit–no exceptions. That is a huge and virtually unheard of achievement. In a moment, you will meet our “internal auditor” who pushes the managers to be prepared for an outside audit any time.

**Our buildings are “owned” by GSA. Rent to the GSA is paid annually out of funds held in Washington. Thus, we don’t have to budget for rent, although maintenance and upkeep costs are sometimes shifted to the local court.

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