If you were a federal judge, what would you do without Scott Greenfield’s “Sentence-O-Matic 1000?”

At his blog, Simple Justice, Scott Greenfield artfully takes apart what he calls “The Sentence-O-Matic 1000.* That is, Scott skewers the idea that one can use a “machine” like the Sentencing Guidelines to sentence people. Yet he realizes that any sentencing system that is loosey and goosey invites arbitrary treatment. Scott ends his analysis with these thoughts, “So we’re back to the old adage, sentencing by whim of an individual judge is the worst system possible, except for all the others. Or as Mencken said, ‘for every complex problem, there is a solution that [is] quick, easy and completely wrong.’ I hate the capriciousness of judicial sentencing. I dread the consistency of the Sentence-O-Matic 1000 far more.”

In this post, I thought it might be “fun” to give readers of this blog an opportunity to sentence someone without the dreaded “Sentence-O-Matic 1000.”  As a teaching technique, I once did this with some Assistant Federal Defenders and CJA panels members, and it turned out to be a useful exercise or at least I thought so.

Assume there are no longer Sentencing Guidelines–the “Sentence-O-Matic 1000” is kaput. As the judge, you must rely only upon the following “law,” that is: (1) the statutory range–in this example, a “crack” conspiracy where the range is 10 years to life; and (2) the factors set out in 18 U.S.C. § 3553(a). After a jury found the defendant “Jimmy” guilty of a conspiracy to possess with intent to distribute more than 500 grams of “crack,” here are your sentencing facts:

  1. Jimmie had at least two prior felony drug convictions.
  2. Jimmie ran the crack conspiracy with the help of his brother Jerry. At least five others were also involved in the business.
  3. Jimmie told the police that he was a “kind dope dealer,” but that was not true. At Jimmie’s direction, Jerry sexually assaulted, physically assaulted and sodomized Laurie with motor oil for failure to pay a drug debt and threatened to kill her if the debt was not paid by that evening. Both Jimmie and Jerry assaulted Odell with a baseball bat as part of the conspiratorial activity.
  4. Jimmie bailed out a minor female from juvenile detention and she became a coconpirator selling crack for the business.
  5. Jimmie obtained and submitted a false affidavit from a coconspirator as a defense to the prosecution.
  6. The conspiracy involved between 1080 and 1419.67 grams of crack. Jimmie personally cut and packaged some of it.

Now, understanding that you must sentence Jimmie to at least 10 years in prison, apply section 3553(a) to the foregoing facts. Go ahead, you sentence Jimmie. So you can’t cheat, now, please, write down the prison sentence you imposed. After you have written your prison sentence for Jimmie, look and see what sentence I imposed under the Guidelines by reading United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). As an aside, Judge Murphy wrote the opinion for the Court of Appeals–why does that matter?

What are your thoughts?  If I were to tell you that today I would impose the same sentence without applying the Guidelines, and relying only upon § 3553(a), would you think my prison sentence just?


* For the “Super Bass-O-Matic ’76,” a machine that makes a hard task easy and that is a first cousin to the “The Sentence-O-Matic 1000,” see below:




Judges are “deaf” to many things. One of those things is modernity in general and computers in particular. In the District of Nebraska, we are fortunate to have a teacher who has a lot experience teaching the “deaf” to learn. Her name is Luta and she is pictured above. Her job is to teach judges, court staff and lawyers how to use the computer systems–from CM/EFC, to digital audio, to word processing programs, to hyperlinks and so forth–with ease and maximum efficiency. Luta is truly a superstar who has been recognized nationally for her unique teaching skills.

Luta has been with our court for 15 years. Prior to that she taught high school mathematics at the Kansas School for the Deaf. (Yes, she is fluent in American Sign Language). She holds a bachelors degrees in Mathematics and Deaf Education from Augustana College in Sioux Falls, SD. In 2008, she returned to school and obtained a Masters in Organizational Leadership from the College of Saint Mary.

Her work responsibilities with the court are twofold; providing technical support, and providing end-user training. The support portion of her job includes providing day-to-day technical support for court users in Probation, Pretrial and the District Court on a variety of software and hardware issues. She researches and tests new programs that the court may be interested in procuring. She is the primary point of contact (aka local expert) for the court’s digital recording system. She is also one of the primary points of contact for the mobile devices, smart phones, and tablets that the court deploys to some users. One of the favorite aspects of her job is finding ways to help court users do their jobs more efficiently. Sometimes this is through training, but it can also involve developing automated forms and macros. Justifiably, she prides herself on not only knowing how to fix the technical problems, but also understanding how the various members of the court staff use the technology to get their jobs done and finding ways to make that easier for them.

Her training duties include, new employee computer orientation, developing annual computer security classes, and developing a variety of other technical training for court staff as needed. To try and keep court staff up-to-date with rapidly changing technology, she develops and delivers a monthly “lunch bytes” training class for court users that is a 30-minute update on new technology developments. Her training duties also reach outside the court to attorneys and their staffs She delivers training on the court’s electronic case filing system (CM/ECF), and on courtroom technology and evidence presentation systems.

In her time with the court, we have transitioned from delivering all face-to-face training to mostly online training. All of the court’s CM/ECF training is now delivered via interactive, on-demand, training videos. In a state as spread out as Nebraska, the online training approach lets us reach many more attorneys without the cost of travel. This past winter she held “hyperlinking” training for attorneys via live online webinar. Not only did the webinar format allow Luta to reach western Nebraska bar members, but out-of-state attorneys as well. Of the more than 200 attorneys attending the live sessions, almost half were participating from outside of Nebraska.

Importantly, she she has also been involved in many projects of national significance. She was front and center in the national pilot program to implement the inclusion of digital audio recordings in the electronic case file. For judges who elect to use digital audio rather than court reporters (like me), this means that everyone of my court proceedings are captured in digital audio and made available that day to anyone in the world at minimal cost. It is the ultimate technology for rendering federal judicial proceedings transparent. I am convinced that without Luta digital audio would never have been implemented nationally. That is an achievement of singular importance.

In 2007, she spearheaded the development of the Automation Trainers Community of Practice. This is an online site that allows court trainers from across the country to share resources and training materials. In 2008, she worked with a Magistrate Judge from Utah (now District Judge David Nuffer) to develop the Chambers Online Automation Training program. The program was developed to provide training to law clerks and chambers staff on the various automation programs used by the court. It now consists of over 80 training modules on topics such as “preparing an order for electronic case filing”, “annotating PDF documents”, and “using two monitors effectively”. With many law clerks serving 2 year terms, this resource helps bring new clerks up to speed quickly, on the technology specific to the court, without requiring a lot of court resources and duplication of efforts across the country.

More recently, Luta co-facilitated a 12-hour online training course for court technology staff across the country. The class focused on using Visual Basic programming to create automated forms in Microsoft Word. The class was taught live and hands-on to more than 80 participants without anyone setting foot out of their office or spending a dime on travel! Even her co-facilitators were in Arizona and Minnesota.

I hope you get the picture. Behind the scenes, Luta is responsible for teaching us how to maximize our resources in this age of digits and automation. Without her, we would have remained “deaf” to the technology that is revolutionizing how the federal courts do their business.

Let me say it again, Luta is a superstar!



Bill Blank

My late father-in-law, Bill Blank, was a surgeon. Some of you may remember that my first wife (Verdella) died of a heart attack at age 40 the day after Christmas in 1986. This was shortly before I became a United States Magistrate Judge in Omaha. Bill was her dad, and I loved him. He, too, died in 1986, at a medical conference, when his heart simply gave out. The year 1986 was not good to me. Yesterday, when considering Mr. Justice Jackson and his drive for education, I thought of Bill.

Bill came from very humble circumstances. He grew up on a farm in south central Nebraska near Franklin, Nebraska, a tiny town not too far from the Kansas border along the Republican river. Some of Bill’s relatives still farm there.

Photo credit: Ammodramus (released to the public without condition). Downtown Franklin, Nebraska: west side of 15th Avenue, looking south from between M and N Streets, May 31, 2010.

Photo credit: Ammodramus (released to the public without condition). Downtown Franklin, Nebraska: west side of 15th Avenue, looking south from between M and N Streets, May 31, 2010.


When I first met Bill and his daughter, Verdella, it was in Maumee, Ohio where I attended high school. We lived just down the street from each other. I had never been to Nebraska, and had no plans whatever to head out to where I was sure the Indians would scalp me should I have the temerity to venture that way. I certainly had never heard of Franklin, Nebraska. But, as luck or fate or something would have it, I ended up attending college in Kearney, Nebraska, and Verdella decided to attend Nebraska Wesleyan University in Lincoln, Nebraska, where her Dad attended and earned a degree in chemistry. Neither one of us knew that the other had come to Nebraska. Ultimately, we connected. Thereafter, Verdella and I marvelled at the fact that two kids from northwestern, Ohio, who knew each other there, would each come to Nebraska without the other knowing, meet again, marry and live (in Lexington) not far from where Bill began his life in central Nebraska. But, that’s another story.

In the late 19th and early 20th century, immigrant Germans flocked to central Nebraska where the land was both good and cheap. They were stocky, stolid, and often sad, as in dour and clinically depressed. Such was Bill’s father. His mother was quite different. Unlike Bill’s older brother who left school at 13 or 14 to help his father farm, Bill’s mother’s insisted that he attend high school. He was the first in the family to do so. He shined.

Upon graduation, and having attended the strict German Methodist Church of his day, Bill knew of Wesleyan. By living in the boiler room of the University and serving as the maintenance man for the institution, Bill put himself through college earning stellar grades. By then, the thrill of education was deep in his big bones. (Bill was tall, about 6’2″ and powerfully built.)

Off to Utah Bill went for a job as a chemist. While there, Bill earned a Master’s degree in chemistry and worked at the Kennecott Copper Mine. And, then he was off again to return to Nebraska where he would attend the University of Nebraska Medical School, putting himself through medical school and supporting his young family by using his chemistry skills to concoct a facial cream for women that sold like hotcakes.

Following medical school, Bill did his surgical residency in Denver and began his interest in colorectal surgery. The army followed with an assignment to Germany during WWII, and then, responding to an advertisement in Toledo, Ohio, a partnership in a small surgical practice. Board certified in general surgery and colorectal surgery,* Bill soon was recognized by his peers. He was elected as President of the Academy of Medicine, and, due to his well-known love of education, was selected to be among the first of the foundation trustees of what is now known as the University of Toledo College of Medicine and Life Sciences.**

If you go on the University of Toledo Medical School’s web site, you can see a list of scholarships. When Bill died, his partner established one in Bill’s name. It reads this way:

William A. Blank, M.D. Scholarship
Dr. William A. Blank was a colorectal surgeon in the community, a volunteer faculty member, and a member of the former MCO Foundation Board of Trustees. This scholarship, established by his partner, Dr. Abdullatif Nimr, is awarded to students who excel in the field of surgery. The scholarship honors Dr. Blank’s cordial relations with his patients and fellow physicians, and his great love for education.

(Italics added by Kopf.)

Like Mr. Justice Jackson, Bill Blank overcame a very modest beginning through hard work and a love of education. It occurs to me that we could use more of this type of person in our daily lives.


*That Bill was physically able to become a surgeon is an amazing story. As a boy, the index finger on Bill’s right hand (his dominant one) was chewed up in a corn grinder. When Bill operated on the belly of a sick patient, that finger, because it no longer flexed at the joint, stood straight out. I remember Bill telling me of the hours and hours and hours he spent practicing tieing surgical knots with that one hand and crippled finger in order to overcome the disability caused by that stiff appendage.

**Ironically, Jeffrey P. Gold, M.D. became Chancellor of the University of Nebraska Medical Center in February of 2014.  Prior to joining UNMC, Dr. Gold served as Chancellor of the University of Toledo’s health science campus, which includes the Colleges of Medicine, Nursing, Pharmacy, Health Science and Human Service, and Graduate Medical Study. Bill would have been proud, having graduated from UNMC and having served as one of the founders of UT’s medical school.




The education of Mr. Justice Jackson–and Kopf’s one question

Mr. Justice Jackson went to the Albany Law School, but became a lawyer only after “reading” the law. “A ‘county-seat lawyer’, he remains the last Supreme Court justice appointed who did not graduate from any law school . . . , although he did attend Albany Law School in Albany, New York for one year.” Robert H. JacksonWikipedia (last accessed August 2, 2014).

Scott Greenfield has an interesting discussion about whether in this modern day one ought to be able to “read law” rather than attend law school as a condition of bar passage. See Scott H. Greenfield, Lawyers Without Law School, Simple Justice (August 1, 2014). But, that’s a topic for another day.

Today, I want to highlight Jackson’s remarkable “reading list” that a high school English teacher gave him, and which played an integral part in this great man’s eduction. At the end, I will have a question for you!

We learn the following from Professor John Q. Barrett’s wonderful Jackson List about “Miss Willard’s English Reading List (1910)” and how that molded one of the Supreme Court’s best writers:

In 1909, Robert H. Jackson, age 17, graduated from the high school in his boyhood hometown, Frewsburg, New York. That Fall, he began to commute northward by trolley each day—about six miles—to Jamestown, New York. He attended Jamestown High School as a senior, taking subjects that had not been offered in Frewsburg.

At Jamestown High School, Robert Jackson came to be influenced, deeply, by an English teacher, Miss Mary Willard. He took her courses in English and English History. He also studied with her outside of class. In 1910, she gave him a carbon copy of a typed, four-page list of recommended readings—it became, as he wrote on it, “Property of Robt. H. Jackson.” Soon thereafter, Miss Willard gave him a mimeographed copy of a retyped, slightly longer version of the list—an expanded edition, it seems.

Jackson kept both documents for the rest of his life. The five-page version:


Sir Roger de Coverly Papers.

Schraband Rustum.
Sonnet on Shakespeare.

Marjorie Daw.
The Story of a Bad Boy.
The Queen of Sheba.

BIBLE Book of:
Genesis- Exodus-Ruth.
1 & 2 Samuel- 1 &2 Kings.
Esther, Daniel, The New Testament.

Saul (?)
A Death in the Desert.
Pippa Passes.
A Blot in the Scutchon.
The Pied Piper of Hamlin.
Epistle of Karshish.

Wake Robin.
Sharp Eyes.
Essay on Walt Whitman.

The Cry of the Children
Mother and Poet.
Sonnets from the Portuguese.

Rab and His Friends.
Marjorie Fleming.

Pilgrim’s Progress.

Cotter’s Saturday Night.
To a Field Mouse.
To a Mountain Daisy.
On Seeing a Louse on a Ladies Bonnet.
To Mary in Heaven.

Sarter Resartus.
Essays on Burns.
Heroes and Hero Worship.


Prue and I.

Don Quixote.

Prologue to the Canterbury Tales.
Patient Griselda.
Palemon & Aicite (?)

Ancient Mariner.
Kubla Khan.

Essay on Joan of Arc.
Essay on Burns.
Confessions of an Opium Eater.
Flight of a Tartar Tribe.

Our Mutual Friend.
Bleak House.
Tale of Two Cities.
Christmas Carol.
Martin Chuzzlewit.
David Copperfield.

Count of Monte Christo.
The Three Musketeers.

Ode on St. Cecilie’s Day.
Palemon & Ascite (?)

Essay on American Scholar.
Concord Hymn.

Silas Marner.
Adam Bede.

The Deserted Village.
She Stoops to Conquer.

Elegy in a Country Churchyard.


A Man Without a Country.

The Chambered Nautilus.
Old Ironsides.

Abou Ben Adhem.


Les Miserables.

Pere Gynt.
Dolls House.
Master Builder.

Sketch Book.
Knickerbocker’s History of New York.

Ode to a Nightingale.
Ode to Autumn.
Ode to a Grecian Urn.
The Eve of St. Agnes.

The Imitation of Christ.

Mine Own People.
Plain Tales from the Hills.
Soldiers Three.

Water Babies.

LANIER: The Symphony.

Tales of a Wayside Inn.
Building of the Ship.
The Arsenal at Springfield.

Commemoration Ode.
Vision of Sir Lannfal.
Table for Critics.
Prayer of Agassiz.

Essay on Milton.
”””””””””Sam’l Johnson.
”””””””””Earl of Chatham.
Lays of Ancient Rome.

MILTON: Lycidas.
Il’ Penseroso.
Sonnet on His Blindness.
Samson Agonistes.

Reveries of a Bachelor.
Dream Life.

Our Village.

Conquest of Peru.

Paolo & Francesca.
The Sin of David.

Sesame & Lilies.

Lay of the Last Minstrel.


Midsummer Night’s Dream.
Winter’s Tale.
King Lear.
Henry IV (I&II)
Henry V
Richard III
Songs and Sonnets.

The Cloud.
Ode to a Skylark.

The Philosophy of Style.

Verginibus Puerisque.

A Sentimental Journey.

Faerie Queen B’ks 1 & 2.

Holy Living.

Idyls of the King.
The Princess.
Enoch Arden.

The Newcomes.
Vanity Fair.

Cape Cod Walden.

Black Log Studies.
The People for whom Shakespeare Wrote.
In the Wilderness.

Tent on the Beach.
Snow Bound.

Ode to Duty.
Rye Re-visited.

* * *

People ask how Robert H. Jackson, from humble origins and lacking higher education, became one of the finest writers in American public life, U.S. Supreme Court history, international relations and maybe generally. My answers are that he had natural talents, sufficient resources, a love of learning, special teachers, and drive. And that he read—thanks to Mary Willard and others, he read, savored, recited, memorized and thus, in his speaking and writing, consciously and unconsciously, emulated great works.

John Q. Barrett, Jackson List, (July 31, 2014).

I have one question. How many of these classics have you read?


“Maximum Insecurity”

Above all else, I suppose this blog seeks to promote transparency about what it is like to be a federal trial judge. In a recent letter, William Wright, M.D., after coming across this blog in a USA Today piece about my Hobby Lobby post, thought I might be interested in his effort at transparency. But before I get to that, a little background about Dr. Wright is in order.


William Wright, M.D. is a graduate of the University of Michigan Medical School. He practiced surgery of the ear for 30 years before attempting (unsuccessfully) to retire from medicine and spend time with his wife, an artist, and an assortment of furry friends. A private pilot, he is also the holder of three black belts and instructor certifications in Tae Kwon Do and Aikido. He is a talented digital artist fascinated by motion, energy and light. And, if all that were not enough, he is one helluva of a writer.

His book Maximum Insecurity: A Doctor in the Supermax chronicles eights years practicing general medicine at Colorado’s maximum security prison after Wright found that retirement from medicine was driving him (and possibly his wife) nuts.* The book is wonderful.

It is hysterically funny, insightful, and very human. Most of all it provides a transparent, but worldly, glimpse into the practice of medicine in a prison where the patient population consists of especially serious (and often loopy) offenders, where the prison bureaucracy strives mightily to act as dysfunctional as the screwiest of inmates, and where the physicians, assistants and nurses undertake to treat with compassion, but not judge, or burst out loud laughing at the machinations of, an odd and sometimes dangerous lot. It was “Runner Up” in the General Non Fiction category at the 2014 Hollywood Book Festival.

Keeping in mind what Wright had no reason to know when he wrote me, that is, I manage our docket of prisoner cases and thus have read a ton of complaints of inadequate medical care in prison, here are a few snippets from the book:

  • Wright explains his first few days as a prison doctor and the fact that his straight chair would not allow him to fit his legs under his desk. The solution? A new adjustable chair. Oh, no. The helpful maintenance staff cut a 2×4 into four pieces and put the four desk legs on the four shortened pieces of lumber. Desk raised four inches. Problem fixed!
  • He explains the “secret” e-mails he receives from the administration in Denver that are urgent but can never be opened because they require a unique password that he cannot get because that special password requires a second special password that he is prohibited from accessing.
  • While performing a routine check up on a murder who had killed five people in a fast-food restaurant, Wright details how the correctional staff inched forward ready for any violence as the doctor began the examination of his patient. Wright touched a stethoscope to the patient’s chest fearing that “might be like lighting a dynamite fuse.” With that, a “a sly grin” came across the man’s face “spreading his thin lips.” “You scared, ain’t you doc? You should be. I be the baddest man you ever see.”  Despite his martial arts training, Wright was scared. “What the hell was I doing here?”
  • And the drug seeking behavior. The doctor explains how one of his patients, “a chop shop entrepreneur from Fort Collins,” came to the clinic because of a complaint about pain in the heel of his foot. Trying to remember the name of the powerful painkiller “Percocet” that the inmate was seeking, but being unable to do so, Wright sees the inmate “thinking hard.” Wright wryly observes, “This is a huge red flag.” Why? Because “[w]henever an inmate is trying to think he is lying.” After the doctor suggests the name of the highly addictive pain-killer, the patient’s eyes light up in relief. The inmate-patient tells the doc he only needs a supply of Percocet for “[j]ust a few months.” Tartly, the doctor responds, “No. Use the heel pad. Have a good day.”
  • This gentle soul describes his treatment of a kid who escaped from a county jail, fell forty feet, and impaled his abdomen on a steel post. Because the nerves were impaired and needed to heal, the bowels were pulled out of the mid-section in a procedure called an ileostomy. After two years of treatment, the nerves recovered and it was time to put the bowels back where they belonged. It was only then Wright learned that as a matter of policy they “don’t reverse ileostomies.” Flabbergasted and frustrated, Wright concludes: “Maybe someone should have thought of that a couple of years ago. But I’m just the hired help.”

Near the end of the book, in a passage I liked the most (p. 240), Wright writes more broadly and warmly of his patients and his oath as a physician. He is (to put it mildly) “less sanguine” about working in a bureaucracy even though there are “stars that shine” in “supervisory roles.” “They shine against a dark background.”

He remembers taking the Hippocratic Oath at the University of Michigan, his “throat tight with emotion.” “It is a pledge to always act in the best interests of my patients.” To Wright, that was “not a quaint ritual.” He still carries “every syllable into the clinic with” him. “[T]he examination room is not the place for moral judgments.” “Even sociopaths cry in the night[,]” “[m]urders miss their children[,]” and child “molesters feel shame.”

When one of his patients remarks, “You really take this serious, don’t you, Doc[,]” Wright is almost surprised. Reflecting, the good doctor concludes: “I do. Perhaps my patient doesn’t deserve the best I can offer, but for my sake I can give no less.” (Emphasis added by Kopf.) And, that is a good place to end.


*Even with my cancer treatment and my whiny complaints, Joan, my wife, tells me that I can’t retire because, as she puts it, “I married you for life, but not for lunch.” Despite my hang-dog expression, she never smiles when she repeats this mantra. Just like the lymphoma, she is deadly damn serious. As is often the case, she is right.

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