Thinking like a federal trial judge

SHG has a post at Simple Justice about thinking like a lawyer. I am agnostic about Scott’s views. But his post prompted me to think about a related matter.

This is a post about thinking like a real federal trial judge. You will think like a real federal trial judge if you understand that:

  1. there is no justice or injustice;
  2. there is only the law, and that is more than enough.




Image credit: Classic FM.

Image credit: Classic FM.

Think Igor Stravinsky. Now read the following:

Reporters are agog  about a solar plant in the Mojave Desert. The plant has more than 300,000 mirrors. It seems that when birds fly through the concentrated rays of the mirrors our feathered friends ignite in midair.* Workers at the plant call them “streamers.” For more, see here and here.**


*I don’t know why, but the image of flaming birds reminds me of one of my favorite poems:

Little bird out in the snow, with busted wing, and broken toe. First I will lure thee with a piece of bread, and then I will crush your tiny head.

Anonymous student at lower middle class high school in Maumee, Ohio.

**Do you think this post requires a trigger warning for people who suffer from environmental schizophrenia?

A bench slap portends trouble in paradise

This post is about politics within the federal judiciary. It also about pecking order within the hierarchy of the federal judiciary. While I don’t care a bit about the substantive issue, the dispute I am about describe is fascinating because it has the potential of setting up a battle of judicial titans and I am a voyeur. While not in so many words, one power within the federal judiciary has publicly called out another power within the federal judiciary by essentially asking, “Who in the hell do you think you are?”

Judge John Bates is a district judge who sat in the District of Columbia. Judge Bates is highly respected by Chief Justice Roberts. The Chief put Judge Bates on the foreign surveillance court (FISA) and later selected him as the Director of the Administrative Office of the United States Courts. Judge Alex Kozinski is the Chief Judge of the Ninth Circuit, which has far more judges than any other Circuit, and as such is a member of the Judicial Conference of the United States. Under the direction of the Chief Justice, the Judicial Conference of the United States is the policy making arm of the judiciary. A district judge and the chief judge from each Circuit comprise the voting membership of the Judicial Conference. Judge Bates is the secretary to the Judicial Conference. “The Judicial Conference also supervises the Director of the Administrative Office of the U.S. Courts in the performance of his duties as the administrative officer of the courts of the United States under 28 U.S.C. § 604.” Id.

Thanks to Howard Bashman, my source for everything, I learned yesterday that:

“Chief Judge Kozinski’s ‘Serious Doubts’ About Judge Bates’s FISA Reform Letters”: Steve Vladeck has this post today at the “Just Security” blog. You can view the letter from the Ninth Circuit‘s chief judge at this link.
Posted at 09:33 AM by Howard Bashman

Here’s a brief summary of the dispute:

  • Bates sent the Chairman of the Senate Judiciary committee a letter about the USA FREEDOM Act–the surveillance reform proposal that, among other things, would create a more adversarial process within the FISA Court.  A fair reading of the letter indicates that Bates was speaking for the federal judiciary.
  • Kozinski sent the Chairman of the Senate Judiciary Committee a letter. A fair reading of the letter indicates that Kozinski does not think that Bates can speak for the federal judiciary and Kozinski makes absolutely clear that Bates does not speak for him. According to Kozinski, the Judicial Conference of the United States had not considered the issues addressed in Bates’ letter. Kozinski notes that Bates did not provide Kozinski (and presumably other members of the Judicial Conference) with copies of correspondence on this issue.
  • Bates had earlier written to Senator Diane Feinstein, Chair of the Select Committee on Intelligence, the following explaining why the Judicial Conference had not been consulted:

Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).

One thing is clear. Bates has been “bench slapped” by Kozinski, and there is “trouble in paradise.”  Of course, feel free to select and mix your own metaphors. No matter how one expresses it, this dispute is extraordinary (and perhaps unsettling) for those who “are inside baseball.”


Once more unto the breach but briefly

There is a race to get to the Supreme Court again on the ACA. This time the question is whether covered individuals get a subsidy if they bought the insurance on an exchange created by the federal government for a state because the state elected not to do so. The issue is purely one of statutory construction. Linda Greenhouse, who is generally not my favorite commentator, has a good explanation of this race here.

Remember my post on the Hobby Lobby case?  In that post, I suggested that the Supreme Court should be more attentive to Alexander Bickel’s “passive virtues.” This most recent ACA argument–fought out now in the D.C. and Fourth Circuits–gives the Supreme Court an opportunity to live up to Bickel’s advice. Here’s how:

  • Every time a Circuit court changes the status quo–rules for the ACA opponents–the Supreme Court should stay the case.  Remember, as Bickel would, that a ruling against the ACA frustrates the will of the people as expressed by Congress, even though Congress passed the law with the narrowest of margins.
  • The Supreme Court should not take any ACA case on the federal vs state exchange issue until every Circuit court has ruled. There is no harm in waiting since a stay and the status quo would mean simply that insurance buyers would continue to get the intended subsidy and the opponents suffer nothing but the opportunity to make their statutory construction argument as quickly as they would like. There is even the possibility that the Court could avoid the question entirely if Congress, in the interim, cleared up the alleged statutory ambiguity.

Delay, delay, delay should be the mantra of the Court. Since both conservative and liberals, to their shame, now endorse the idea that law is merely politics by another name, the Court should do everything in its power to push back hard against such bilge. The world will not fall apart if the Supreme Court takes a “wait and see” attitude that lasts several years. More time to nap is almost always a good thing.


King Richard

I met with some lawyers today prior to a sentencing. We got to laughing about nicknames for some of the other judges. I was shocked, just shocked, to learn that I have a nickname too. It is “King Richard.” They did not specify whether they were thinking of Richard I or Richard III. Either way, the moniker delights me. Here’s how I picture myself:

Image credit: Joey Davidson and TechnoBuffalo

Image credit: Joey Davidson and TechnoBuffalo

Kneel knaves.


A clemency proposal that deserves strong support from President Obama and AG Holder

A helpful reader brought to my attention a piece on the New York Times editorial page that proposes a complete reworking of the clemency process. Specifically, it proposes a broadly representative and non-partisan commission to make recommendations to the President about pardons and clemency.

Given my awful experience with Hamedah Hasan (Merciless), I urge President Obama and Attorney General Holder to get behind this proposal, and strongly so. They should so if only to publicly proclaim “mea culpa, mea culpa, mea maxima culpa” – “through my fault, through my fault, through my most grievous fault.” A public expiation of their manifest sins would do them and the rest of us (not to mention those who deserve mercy) a world of good. If Obama and Holder aren’t total hypocrites they will do so.

I reprint the piece in full:

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates.

This design would give the president bipartisan support in making what is often a politically sensitive decision. Particularly in a tough-on-crime age, the risk of even one person committing another crime is enough to deter grants of clemency across the board. That is another argument for a well-financed commission, which can collect data on the results of clemency grants — data that could then be used to better inform future decisions.

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

The Editorial Board, It’s Time to Overhaul Clemency, New York Times, August 18, 2014.


Robert F. Rossiter Jr. will become a great federal trial judge in Nebraska if politics don’t get in the way

Judge John Gerrard was selected, and now serves with distinction, as a federal district judge. He replaced me. John was a nominal Democrat before his appointment. I was a nominal Republican before my appointment. When I announced a year in advance that I would take senior status, the senior US Senator was Ben Nelson, a Democrat. The junior US Senator was Mike Johanns, a Republican. Johanns fully cooperated with Nelson and President Obama and enthusiastically supported the appointment of Judge Gerrard. Gerrard was, by every measure, extraordinarily well qualified to serve as a federal district judge. The active support of Republican Senator Mike Johanns was an act of statesmanship and common sense and a continued commitment to the Nebraska tradition of putting highly qualified individuals on the federal trial bench without regard to raw partisanship.

Joe Bataillon, my wonderful colleague, will take senior status on or about October 1, 2014.  As I wrote shortly after Joe announced his intention to take senior status, I desperately hope that Joe’s replacement will not be a bozo.  If the White House cares about nominating a high qualified individual like John Gerrard to fill Joe Bataillon’s seat, then I hope the powers that be listen to Senator Johanns and Senator Fischer and not play politics with this critical nomination to our little court.

After a long and careful process, the two Republican US Senators have suggested to the President that he nominate a nominal Republican, Bob Rossiter. Both Democrats and Republicans were given a fair shot at convincing the Senators that they were the best person for the job no matter their past political affiliations. Rossiter came out on top, and for a good reason.

Low Res Color IMG_5297

Rossiter is 58 years old. He graduated from the Creighton Law School with honors. He was the Executive Editor of the law review. He served as a law clerk to a federal trial judge (Judge Beam, who is now a senior Circuit judge). He is the only lawyer in Nebraska who is both a fellow of the American College of Trial Lawyers (State chair 2012-2014) and the American College of Labor and Employment Lawyers,  He has tons of federal trial experience. He is highly regarded by his peers. He was elected and served as the Chair of the Nebraska State Bar Association House of Delegates. Recognizing his prior service to the NSBA, Bob has now been selected as President-Elect Designate of the Association. Bob’s commitment to his community and church include service as a member of the Board of Directors of Girls Incorporated of Omaha, service as a member of the Board of Directors of Catholic Charities of Omaha, and service as Parish Council President of the St. Wenceslaus Parish.

On a personal note, I have known Bob for about a quarter of a century. I know of no finer or fairer person. Importantly, he shares my taste in fine food. Once a year or so, we have breakfast at the Hi-Way Diner in Lincoln. Hi-Way-Diner-Block-Logo-3x21-300x200If you like grease, as Bob and I do, there is no finer dining establishment.  I should not forget to add that by clicking here you can access the menu. I particularly recommend the #7 Biscuits & Sausage Gravy (Full Order $4.89/Half Order $3.29). Don’t skimp. Get the full order. You can’t go wrong either with the #9, Chicken Fried Steak with 2 Eggs & Magic Toast for $8.99. Be sure to add Hash Browns for $1.79.

Finally, and more seriously, I end with the thoughts of Carl Tobias the Williams Professor at the University of Richmond School of Law who follows judicial nominations and the process related thereto more closely than virtually anyone else. Regarding the federal trial courts, Professor Tobias recently observed:

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence.

Professor Tobias concluded:

In sum, the 80 district court vacancies nationwide . . . undermine federal courts’ efforts to promptly, inexpensively, and equitably decide cases. Accordingly, President Obama must swiftly nominate, and the Senate expeditiously process, highly qualified, uncontroversial candidates. To facilitate this process, the White House should consult home state senators across the country and speedily nominate exceptional people for all vacancies. 

(Emphasis added.)

President Obama has been presented with a highly qualified, uncontroversial candidate by Nebraska’s US Senators. Just like Senator Johanns did when he enthusiastically supported Judge Gerrard, President Obama should set aside politics and do the right thing. That is, nominate the exceptionally well qualified Bob Rossiter to become the next United States District Judge for the District of Nebraska.






Update on notice of appeal problem

A helpful reader has provided two forms that address the notice of appeal problem discussed in my last post. I am tentatively inclined to think that the solution addressed in the two certificates is a good one.

The first certificate is from counsel and must be filed in the court file within 10 days.  It reads like this
counsel.certThe second certificate is issued by the defendant and must be filed at the same time, and as part of defense counsel’s certification.  It reads like this:

cert.defendantThese forms are worth careful thought.  As I indicated above, I am tentatively inclined to think these forms, with appropriate modifications, are worth using as a part of my standard practice.  I am interested in knowing what others think.


PS Many thanks to Tom Withers.


The notice of appeal problem in criminal cases

I have a problem. My problem relates to motions to vacate under 28 U.S.C. § 2255. I hope readers who practice criminal law in the federal courts can help me.

If a defendant does not take a direct appeal, and later files a section 2255 motion alleging ineffective assistance of counsel on the basis that defense counsel was told to take an appeal but failed to do so, as the law stands now I must appoint counsel and hold an evidentiary hearing even if the first lawyer submits an affidavit denying that he or she was told to appeal. Here is a recent such case from Nebraska, although it is not mine, where the Court of Appeals reversed the denial of a section 2255 motion precisely on this basis. Franco v. United States, No. 13-2607 (8th Cir., August 8, 2014).

After I sentence a person I scrupulously comply with the Federal Rule of Criminal Procedure 32(j).  Specifically, I give a detailed description of how and when a defendant may appeal. I make clear that the defendant has 14 days to file the notice of appeal. I use simple words and then ask the offender whether he or she has any questions.  I specifically invite a discussion on the subject. Moreover, before I leave the bench, I tell the defendant that my court clerk will hand the defendant a written summary of what I just told the defendant as soon as I am gone. I add that the defendant can speak with the clerk at that time and she will file a notice of appeal for the defendant if the offender merely asks her to do so. See Federal Rule of Criminal Procedure 32(j)(2).

Here is the notice the defendant and his or her counsel receives from my clerk immediately after I leave the bench:

TO: Each defendant and his/her counsel:

(1) Unless a defendant has given up his or her right to appeal (for example, by signing a waiver in a plea agreement approved by the court), you are notified that every defendant has a right to appeal. Appeal means to have a defendant’s conviction or sentence reviewed by a higher court. A conviction may be appealed because it was obtained in violation of the law. A sentence may be appealed because it was imposed in violation of the law. If a defendant was convicted after a trial, the defendant may appeal the conviction and the sentence. If a defendant was sentenced after a plea of guilty or “no contest,” the right to appeal is generally limited to appealing the sentence.

(2) To start an appeal, a notice of appeal must be filed with the Clerk of the United States District Court for the District of Nebraska. A defendant may file the notice of appeal. Also, if the defendant tells his or her lawyer to file the notice of appeal, the lawyer is obligated to do so. In addition, if a defendant tells a court clerk to file the notice of appeal, the court clerk is required to do so.

(3) A notice of appeal must be timely filed in the district court, generally within fourteen days after the entry of the judgment or order from which an appeal is taken. This normally means that a notice of appeal must be filed in the district court within fourteen days of today’s date. If the notice of appeal is not timely filed, a defendant may lose his or her right to appeal.

(4) Every defendant who is unable to pay the expenses of an appeal has the right to apply for permission to appeal without payment of a filing fee or costs. In addition, every defendant who is unable to pay for a lawyer may apply for the appointment of lawyer to represent the defendant during the appeal at no cost to the defendant. In other words, even though a defendant is poor, the defendant’s poverty need not prevent an appeal.

Receipt of the foregoing notice is acknowledged this day of
, 20 , immediately after sentencing, by:

 _______________________                             ___________________________

Signature of defendant                                      Signature of defense counsel

(The deputy clerk of the court is directed to give a copy of this notice to each defendant and his/her counsel immediately after sentencing. The deputy clerk of the court shall then set forth in a copy of the notice the date the notice was given. The deputy clerk shall then procure the signature of the defendant and his/her counsel on a copy of the notice. The signed copy of the notice shall then be filed in the court file by the deputy clerk.)*

The notice is signed by the defendant and his or her counsel. It is filed in the court file.

At the same time as the foregoing notice is is delivered and signed, defense counsel is additionally handed a copy of Eight Circuit Rule 27C. The lawyer acknowledges receipt of the rule, and that acknowledgment is filed in the court file. Here is the form:



(a) Notices of Appeal. Retained counsel in criminal cases, and counsel appointed to represent a party pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A, Federal Rule of Criminal Procedure 44, or the inherent power of a federal court, shall file a notice of appeal upon their client’s request. Defendant’s trial counsel, whether retained or appointed, shall represent the defendant on appeal, unless the Court of Appeals grants permission to withdraw.

(b) Motions to Withdraw. A motion to withdraw on the ground that in counsel’s opinion there are no non-frivolous issues to be urged on appeal must be accompanied by a brief prepared in accordance with the procedures enunciated in Anders v. California, 386 U.S. 738 (1967), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987). A motion to withdraw on any other ground will only be granted for good cause shown, and will rarely be granted unless another attorney has entered an appearance for the defendant on appeal or another attorney has agreed to represent the defendant on appeal and the defendant has consented to the appearance of that new attorney.

As defense counsel, I acknowledge receipt of 8th Circuit’s Rule 27C.


Now, here is my problem. If the defendant later claims that he or she told defense counsel to file a notice of appeal, but that claim is not true, is there anyway to avoid the time and trouble of appointing a lawyer to represent the defendant and then conducting an evidentiary hearing?  I ask this question because: (1) I trust most criminal defense lawyers to file a notice of appeal if directed to do so; (2) there is little incentive for offenders not to lie about whether they instructed their counsel to appeal and in fact I have a strong suspicion that the prison “writ” writers frequently make this type of allegation without specifically consulting the prisoner for whom they are writing the 2255 motion; (3) allowing an offender to attack defense counsel based upon nothing more than the say so of the offender seems wrong to me since the consequence to the lawyer is significant–getting dragged into court to testify when the claim alone has the real potential to sully the accused lawyer’s reputation; (4) the consequences to the court are not small either, as the requirement of an evidentiary hearing requires under the rules the appointment of yet another lawyer (Rule 8(c) of the Rules Governing Section 2255 Proceedings) and the evidentiary hearing and subsequent proceedings suck up large amounts of time; (5) almost never is the defendant’s claim upheld after an evidentiary hearing (which in our court would be held by a magistrate judge with a follow-up a report and recommendation to me) since history proves that most lawyers in fact comply with their legal and ethical obligations to file notices of appeal when directed to do so.

Is there any solution to avoiding these frequently fruitless hearings that do little but harm the reputations of conscientious defense counsel and waste time and money? I would appreciate the advice of defense counsel who confront this problem on a regular basis.


*If the defendant cannot speak English, the interpreter reads the document to the defendant in his or her native tongue.

PS Thanks to Elaine Mittleman for stimulating my thoughts on this subject.

What should US District Judge Mark Fuller do if he beat his wife?

Photo credit: Anonymous, AP. Apparently this is a mug shot of Judge Fuller.

Photo credit: Anonymous, AP. Apparently this is a mug shot of Judge Fuller.

United States District Judge Mark E. Fuller was arrested for misdemeanor spousal abuse. According to his wife, the abuse was violent. See here. The Eleventh Circuit stripped the judge of his caseload pending completion of an investigation. The judge will be paid despite the fact that he won’t be handling a caseload.  It is unlikely that the judge will be impeached even if he beat his wife. See here and here for additional newspaper coverage.

What, if anything, should the judge do if he is guilty of assaulting his wife? 


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