More on USPO Thomas Eric Gahl, killed in the line of duty

Thanks to Elaine  Mittleman, a former resident of Indiana and a thoughtful federal criminal defense lawyer and appellate specialist, here is an article and video that was completed 25 years after the USPO was killed. In brief, this is what happened:

On September 22, 1986, United States Probation Officer Thomas E. Gahl was killed in the line of duty in Indianapolis, Indiana. It was a Monday morning, not unlike any other Monday morning Tom had experienced in his previous 11 years as a probation officer. That morning, Tom was visiting the home of parolee Michael Wayne Jackson. Tom arrived at the home at approximately 8:15. After not being able to contact Jackson, Tom turned to leave the residence, but Jackson ambushed Tom and shot him three times with a sawed off shotgun. An 11 day manhunt ensued, ending with Jackson taking his own life in Wright City, Missouri.

 

RGK

An ode to certain “serious” law professors

I received some critical reaction from “serious” law professors regarding my use of “stfu” in my Hobby Lobby post. Here is a particularly florid one from a corporation’s guy who so far as I know has never stepped into a trial courtroom let alone any other courtroom.* Without intending to shove a stick in the eye of such types, I encourage them to read Christopher M. Fairman, FUCK, 28 Cardozo Law Review 1711 (2007). I then encourage them to grow up.

I supposed I am obligated to do one more thing. “Serious law professors” have these attributes: You have tenure, you are highly educated, you proclaim the value of intellectual honesty (but you never take risk that would test that commitment), you give high value to the power of words (as long as they accord with your world view), you never make a point without evidence to back it up and you always attend the Dean’s tea. But, because I, like you, place a premium upon not giving offense or inflicting trauma on someone who is not a member of my elevated class, I herewith provide a TRIGGER WARNING. This post might cause certain “serious” law professors emotional issues. So, don’t read this post or the cited law review article if you wish to avoid years of therapy that the resulting trauma may require. 

RGK

*Citing no evidence, the good professor (a real wordsmith) accused me of “thinly veiled anti-Catholicism.” While it is true that I am not a religious person and my first cousin, after travelling the world, converted to Reform Judaism, the following might interest the good professor: the man who most influenced me about telling the truth was a dear friend and a Catholic priest; my late wife devoted her teaching to the Catholic schools; my brother-in-law (the brother of my late wife) went to a Catholic high school as did my middle daughter, at my insistence; my oldest daughter married in a Catholic church and took instruction from a Catholic priest in order to do so; five years after the sudden death of my first wife, I married my second wife, Joan, a devote Catholic and member of a large Catholic family with seven children.

Winston Churchill: “If you’re not a liberal at twenty you have no heart, if you’re not a conservative at forty you have no brain.”

If Winston was right, what do you believe when you become 65, or 70 and so forth, particularly if you are a senior status federal district judge?* Scott Greenfield raised that point recently in an exchange with one of his readers over the hubbub surrounding my post on Hobby Lobby.

The exchange went this way:

 Stan

 July 9, 2014 at 9:03 am

Judge Kopf appears to speak with the freedom of one who has accepted his own mortality. I don’t always agree with him, but his writing is always worth the time to read.

Reply ↓
SHG Post author
July 9, 2014 at 9:12 am
That’s a very interesting way to put it, “accepted his own mortality,” given that he suffers from Hodgkins Lymphoma. There seems to be a thing with senior judges, seen with Judge John Kane in Colorado, Judge Weinstein in EDNY, and Judge Kopf, where a judge comes to grips with the fact that he’s never going to make it to the Supremes, has a future limited by the good years and stamina he has left, and no longer feels the need to court anyone’s approval.

This frees the life-tenured judge to spend his remaining time on the bench doing what he believes is right, no matter who he pisses off in the process.

Judge Kopf and the Appearance of Impropriety (Update), Simple Justice (July 8, 2014).

Let’s assume for a moment that SHG is right. That is, an older judge who takes senior status is likely to:

“come[] to grips with the fact that he’s never going to make it to the Supremes, has a future limited by the good years and stamina he has left, and no longer feels the need to court anyone’s approval. . . . This frees the life-tenured judge to spend his remaining time on the bench doing what he believes is right, no matter who he pisses off in the process.”

Assuming Scott is right, we ought to ask ourselves some questions. Here are four to start the discussion:

1. Can you generalize regarding most senior status federal judges? In other words, do most seniors speak their mind more freely when they take senior status?

2. Is the “freedom” that Scott alludes to for senior judges a good thing or a bad thing? Or should senior district judges act just like their active counterparts?

3. Is the “freedom” that Scott alludes to for senior judges likely to be exercised in one direction (“liberal” or “conservative”)? Does that matter?

4. What does Scott’s conclusion say for the appointment of young judges, like those in their early 40s?

I am most interested in your take on district judges. Stray, if you must, to appellate judges or the Supreme Court but focus if you can on district judges These are just the high points. You can surely add others to flesh out Scott’s intriguing conclusion. In the past, I had not thought too much about Scott’s point, but, now that I have, I think it is pretty important.

Tell me what you think.

RGK

*“Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts’ workload annually.” FREQUENTLY ASKED QUESTIONS, United States Courts (last accessed July 15, 2014).

High intensity

Jeff, a fellow you would not want to arm wrestle.

Jeff is a fellow you would not want to arm wrestle. (The object in his hand is a remote controller. Ironic.))

He graduated from high school in North Platte, NE., a railroad town about half between Denver and Omaha. Rumor has it that you didn’t mess with him as a teenager. He got his college degree at UNL and then took a job with the Nebraska Department of Corrections working at the Nebraska Center for Women in York, Nebraska. After that, a stint at the Omaha Correctional Center followed, and then on to manage “death row” for Nebraska’s prisons. (Can you imagine spending your day on “death row”?)

Jeff came to the US Probation Office at our court* with great experience working with, talking to and understanding hard-core offenders of all types. After working as a USPO for 14 years, Jeff is doing “high intensity” supervision. That is, he supervises the toughest of offenders who are released from federal prison and thereafter may be doing 5, 10 or more years on post-prison supervision. Jeff knows what it is like to supervise an offender who killed a man while on supervision with one mighty punch, perhaps in self-defense.

High intensity supervision is dangerous both to the USPO and to the offender. If you don’t believe me, consider the following. Before USPOs were allowed to carry guns, USPO Thomas Eric Gahl was shot three times with a shotgun and killed when he entered an offender’s home who had recently been released from prison. The man was suspected of taking drugs while suffering from mental illness. The offender fled, killed two other people, engaged in several other kidnappings and then committed suicide. See here for more. The Federal Courts Improvement Act of 1996, Title I., Sec. 101 (October 19, 1996) amended federal law (18 U.S.C. § 3603(9) to provide federal statutory authority for United States pretrial and probation officers to carry firearms.

Officer Gahl had served with the United States Probation Office for the Southern District of Indiana for 11½ years. He had previously served with the Indiana Department of Correction, the Federal Bureau of Prisons and was a US Marine Corps veteran of the Vietnam War. Officer Gahl was survived by his wife, two young sons, brother and mother.

Officer Gahl had served with the United States Probation Office for the Southern District of Indiana for 11½ years. He had previously served with the Indiana Department of Correction, the Federal Bureau of Prisons and was a US Marine Corps veteran of the Vietnam War. Officer Gahl was survived by his wife, two young sons, brother and mother.

The offenders who are subject to frequent contact with high intensity supervisors are marked as the toughest to supervise and those offenders know about and often resent the increased supervision. The supervision takes the officer out into roughest places and neighborhoods at all times of the night and day to have contact with the offender. A high intensity supervisor cannot “talk-the-talk” with these offenders, he or she must have the unique ability to “walk-the-walk” when the pressure is really on. Those interactions can be tense and fraught with an almost palpable smell of violence. The officer is often alone.

While men and women like Jeff have arrest and other limited law enforcement powers** and carry guns, their mindsets are (or should be) completely different than that of a cop. Their job is to help the offender become productive. And that’s what makes their jobs so awfully hard. I have known Jeff for a long time now. He is the happiest when one of his offenders completes supervision successfully. He does not enjoy “bagging” an offender. On the other hand, Jeff is tough. He is not afraid to get very aggressive if public safety and the law requires it.

Late at night, an employee of the United States District Court for the District of Nebraska, a USPO, is probably risking his or her life to do good both for the public and offenders who most of society have written off long ago. In Nebraska, that person might be a powerfully built but inwardly caring guy whose name is Jeff. I like the idea of probation officer as humanist. Jeff is such a person.

RGK

*US Probation Officers are employees of the judiciary. Each United States Probation Office is a unit of the United States District Court for a particular district and is subject to control by the judges of that court. See here for our United States Probation Office.

**U.S. Probation Officers may with the approval of the court conduct warrantless searches of offenders and their property. The U.S. Supreme Court (Griffin v. Wisconsin, 483 U.S. 868 (1987) (supervision of probationers is a “special need” of the State that may justify departures from the usual warrant and probable cause requirements. Supervision is necessary to ensure that probation restrictions are in fact observed, that the probation serves as a genuine rehabilitation period, and that the community is not harmed by the probationer’s being at large) and several federal courts have held that warrantless searches are permitted under certain circumstances. See also 18 U.S.C. §§ 3563(b)(23) and 3583(d). They have authority to make arrests as well. 18 U.S.C. § 3606(b)(23) and 18 U.S. Code § 3583(b).

Should Interstate 80 be treated like JFK airport in New York?

Read Scott Greenfield’s post entitled The Pendulum and the Mule. It discusses the extremely low sentences drug mules are getting when they get caught at JFK airport over which the Eastern District of New York has jurisdiction. One Eastern District Judge said “This is virtually, you know, a slap on the wrist.” Scott seems to think this might be a good thing.

The judges’ rationale seems to be that the federal courts in the Eastern District of New York don’t want to be clogged with “silly” low level drug cases. What?

Aside from the fact that it is not their job to decide who to prosecute, one can hardly describe Eastern District federal judges as overworked when it comes to their criminal dockets. For example, the Eastern District of New York ranks last in the nation for criminal cases 75th out of 94 federal courts for federal felonies. See here.

We get tons and tons of mules on I-80 and they find their way into our modest little federal court. Maybe I should consider that long stretch of concrete as a giant JFK. I don’t want silly low level mule cases. I know better than DOJ who should be prosecuted. I don’t care about unwarranted sentencing disparity caused by judges doing their own thing.  After all, I live in “fly over” country and everybody knows that I know best out here where not too many years ago we frequently saw real mules. That’s the ticket!

RGK

PS Scott also writes:

Though, before they get too down on the mules for their sweet deals, it would behoove the judges to remember that these aren’t people living in palaces built on foundations of cocaine in lush island resorts. Their lives were awful enough before they were enticed to take a terrible chance to put food on their family’s tables.

Their lives are punishment, and it serves no constructive interest to deprive their children of food so that they can be warehoused by the government to send a message. People with hungry children already have a message, and it’s more important to them than any message a judge thinks he’s sending, regardless of the sentencing paradigm.

There is no question that some mules deserve gentle treatment because they are caught up in a world over which they have little control. That is a world of real horror. I am not so sure that this is true for most mules, however.

 

 

 

 

Reviewing Criminal Justice Act (CJA) vouchers

Some of you enjoyed an earlier post entitled The best gift I ever got from a convicted killer. There is a back story to that post. Although the appeal was successful, and Tommy had his sentence cut in half resulting in his immediate release, the state district judge was upset. He allowed payment for my brief printing costs but nothing more.

I go paid zip for the appeal. Nothing for the hours and hours I spent writing the brief that the Nebraska Supreme Court relied upon to immediately release my client. Nothing for the overnight travel to make the oral argument. Nothing for the oral argument.

To say that I was furious is an understatement. I didn’t care about the money. What I carried about was the not too subtle hint from the bench that overturning a sentence in a murder case would be “punished” if a lawyer had the temerity to try.

When I became a judge, I quickly realized that I would now be in the position of approving counsel’s request for fees under the CJA. In this post, I will explain how I approach the process. I hope to hear back from CJA lawyers about their experiences. I welcome comments from others too. This is a “behind the curtain” stuff, but it is critical to the functioning of the federal courts. We should bring this issue out of the dark.

We have a Criminal Justice Act Plan.* It was implemented to create the Federal Public Defender for the District of Nebraska and to create the CJA panel. If you are charged with a crime and do not retain your own counsel, you will be represented by an assistant federal public defender or a CJA panel attorney if you cannot afford counsel. The decision is up to the Magistrate Judge but it is based upon a nomination from the Federal Public Defender who manages the panel. The Federal Public Defender’s management of the panel is overseen by a committee. The committee consists of two judges and a lawyer from the panel.**

Roughly half the cases are “paneled,” meaning they go to members of the CJA panel. The other half go to the Federal Public Defender’s office. The reason for this division is two-fold. First, the Federal Public Defender doesn’t have the staff to take all the cases, and, second, the Federal Public Defender could not take all the cases anyway due to conflicts of interest.

Excluding capital cases, panel attorneys are paid $126 per hour plus their expenses. There is a maximum fee that may be charged unless I approve an “excess” voucher and the Chief Judge of the Eighth Circuit does so too. Here are the case compensation maximums at present: Felony (including pre-trial diversion of alleged felony)–$9,800; Misdemeanor (including pre-trial diversion of alleged misdemeanor)–$2,800; Post-conviction proceeding under 28 U.S.C. §§ 2241, 2254 or 2255–$9,800; Other representation required or authorized by the CJA (including, but not limited to probation, supervised release hearing, material witness, grand jury witness)–$2,100. Counsel are entitled to expenses over and above these maximums such as when they hire their own interpreters.

It would wrong to assume that panel attorneys make a lot of money handling these cases. This is true for a number of reasons. For example, let’s say a lawyer takes a felony case in our district. The median time to disposition for criminal cases in our district is 7.5 months. So, most of the time panel attorneys are looking at a significant commitment of time for each federal case accepted, and the lawyer is not likely to be paid until a year after the appointment is made. Moreover, most lawyers can only expect a few cases each year and many get only one and some none. At $126 per hour, it is not a gravy train.***

Now, let me tell you how I approach the process of reviewing CJA vouchers. (I exclude capital cases because there are so few of them, and they present special issues.) Here is my approach:

  • I receive a packet from the Federal Public Defender’s employee who reviews the voucher for mathematical accuracy and for compliance with various “technical” requirements. The voucher will include detailed backup information in the form of a spreadsheet showing time slips for each activity the lawyer undertook. It is broken down to one-tenth of an hour and contains a short description of the activity performed. There is also detail, including supporting receipts, for expenses claimed. If the lawyer seeks approval over the case compensation maximum, the lawyer is obligated to provide a letter explaining why the excess should be approved.
  • The legal test for approval of an “excess” voucher, which comes from the CJA, is this:”Payment in excess of any maximum amount . . . may be made for extended or complex representation whenever the court in which the representation was rendered, . . . certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.” (Emphasis added by Kopf).
  • I review the packet myself. I don’t delegate that function to anyone else.
  • I assume that if a lawyer said he or she spent an hour doing this or that the lawyer’s time claim is accurate. I almost never challenge a lawyer’s claim of time.  Remember, a lawyer could forfeit his or her license or be prosecuted federally for not telling the truth on the voucher.
  • If the voucher does not exceed the maximum, I approve the voucher after a superficial review. I almost never reduce a voucher that is below the maximum.
  • For excess vouchers, my review is more detailed. Initially, I review the letter from the lawyer and compare it to the voucher. I then review a docket sheet printed from CM/ECF by my assistant to remind me of the scope and breadth of the case. After that, I decide whether I will approve the voucher in whole or in part. I seldom “cut” excess vouchers. But, if I do, I won’t cut the voucher until counsel and I confer on the reasons for my reduction. I write a letter to counsel explaining my views and giving counsel an opportunity to object and explain in further detail. Most of the time, I don’t change my mind, but on several occasions counsel has convinced me that I am wrong. If so, I approve the voucher. If I decide to approve an excess voucher, I write a detailed letter to the Chief Judge of the Eighth Circuit (now Chief Judge Riley). Each such letter contains my personal views and is specific to that particular case. By the way, imagine the burden on the Chief Judge of the Circuit having to review “excess” vouchers from each district.
  • One of the toughest issues I confront is when I think counsel spent too much time, but I can see why counsel could reasonably come to a different conclusion about the need for the expenditure of that time. In those circumstances, I will not substitute my judgment for the judgment of counsel.
  • I then send the packet off to Chief Judge Riley. If I hear nothing back, that typically means that he too has agreed on approval. Sometimes, the Chief will reduce a voucher. If that occurs, the Federal Public Defender notifies me and I review the rationale of the Chief Judge for reducing the voucher.
  • If I have approved an “excess” voucher but the Chief Judge of the Circuit disagrees, I consider that to be a “reversal.” In other words, I take that decision very seriously and I do my best to incorporate the Chief’s point of view in subsequent voucher reviews. That said, the Chief’s review has to be case specific, so I do not treat a disapproval by him as necessarily having application to other cases.

So, that is how I deal with CJA vouchers. What say you?

 RGK

*I had the privilege of drafting our first Plan with the help of Dean Ross at the Defender Services branch of the Administrative Office of the United States Courts. Dean is the son of Judge Ross. In addition to being a great lawyer, with experience as an Assistant Federal Public Defender, I remember Dean as a terrific track athlete at Nebraska where he lettered in 1977-1978.

**Each district has a CJA Panel Attorney District Representative selected from among the members of the CJA panel, with the approval of the chief judge. The panel representative leads their district CJA panel; attends the annual National Conference of CJA Panel Attorney District Representatives; serves as liaison between the CJA panel and the federal defender organization, the court and the AO’s Office of Defender Services; comments on proposed legislation relating to the CJA; works toward improving the quality of representation as well as the conditions under which panel attorneys provide representation. Our representative is Alan Stoler. Alan has experience as a state prosecutor followed by many years of experience as criminal defense lawyer handling the most difficult of state and federal cases. He does a terrific job representing the interests of CJA panel members.

***When the rate was $100 per hour, an economic analysis concluded that CJA panel counsel netted $36 per hour before taxes. See here.

 

 

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