A reluctant “prosecutor”

This may not interest anyone except those who study Nebraska legal history. Then, again, it is sufficiently weird that it may be interesting to others. I will tell the story. You decide.

As I indicated in my post on Bill Barrett, in the early 1980s I was hired to represent the Nebraska legislature when a state savings and loan company went under and many Nebraskans lost a lot of money. One of my jobs was to investigate the involvement of Attorney General Paul Douglas. To make a long story short, one of my investigators, a detective with the Lincoln police department, dove into the records of the failed company and came up with a check that seemingly proved that Douglas had been involved in “straw man” loans with the company. That was a problem for Douglas, particularly because he also had oversight authority of the banking department that regulated the failed institution. To make matters worse, Douglas had assigned an assistant attorney general to that task who owed a lot of money to the failed institution and she had previously been married to the Attorney General’s business partner.

I became convinced that Douglas had not been honest with the Nebraska legislature when he testified that he did not understand the nature of the fraudulent transactions he had engaged in with the company. Basically, the transactions worked like this: (a) Douglas and his business partner would borrow money from the failed institution to buy real estate owned or financed by the financial institution; (b) someone controlled by the institution would buy the real estate from Douglas and is partner with financing from the failed institution; (c) Douglas and his partner would profit from that transaction; (d) the new loan on the real estate would be booked by the institution and the sale price would indicate that the institution was well secured by the real estate that now had an inflated value. The straw buyer from Douglas and his partner would hold the real estate until he or she could sell it. This worked fine until it didn’t; that is, until real estate values crashed in Nebraska and throughout the nation.

The question for me was whether I should advise the Nebraska legislature to impeach Douglas. At that time, there had been only one impeachment in Nebraska’s history and it had failed. See State v. Hastings, 37 Neb. 96, 55 N.W. 774 (1893); State v. Leese, 37 Neb. 92, 55 N.W. 798 (1893); State v. Hill, 37 Neb. 80, 55 N.W. 794 (1893). Moreover, that earlier impeachment was before Nebraska had a unicameral legislature.  With the advent of the unicameral legislature, impeachments were of necessity tried in a real court, the Nebraska Supreme Court, and not in the Senate of a bicameral legislature.

The standards for an impeachment conviction were impossibly high: (1) although the only “punishment” involved was the loss of office, the Nebraska Supreme Court treated the proceeding as “criminal” in nature and required proof beyond a reasonable doubt; and (2) a majority of the Justices (four) was not sufficient to convict, a super-majority of five out the seven was required to find “guilt.” Moreover, we would have almost no time to prepare because the trial was required to be held in ten days and that time limit would not be extended!

I was instructed to draft articles of impeachment that could be used in two ways. The legislature could adopt the articles, but, instead of impeachment, officially reprimand Douglas, call for his resignation and refer the matter to the Nebraska Counsel on Discipline for an ethics probe. This was the alternative I recommended arguing in a memorandum (leaked by a Douglas supporter and state senator) that a conviction would be very hard to obtain given the criminal nature of the proceedings, the requirement of proof beyond a reasonable doubt, the need for a super-majority of justices to find “guilt,” and the ten-day time to prepare. The alternative was impeachment. When the day of the debate came, I was stunned as I watched the proceedings unfold. The body elected to impeach, and it was my job to try the case.

I needed help. So, I called my friend Wes Mues, who later became a distinguished appellate judge. I have written about Wes in these pages and in particular his tragic death in an auto accident. Wes and I decided that we would try the case as fast as possible leaving Douglas’ defense team little time to prepare. (In about three days, we called 21 witnesses* and offered 103 exhibits.) We also sought to call Douglas as a witness but the Supreme Court quashed the subpoena on “Fifth Amendment” grounds.  We did not call the principals of the failed institution because they were being prosecuted in state court and they were also the subject of a federal grand jury investigation.** If the impeachment trial was truly a criminal case, we could not ethically call anyone who had a legitimate Fifth Amendment privilege if we also knew the witness would invoke the privilege in front of the finder of fact.

When Wes and I had our first “status conference” with the defense team and the Supreme Court we quickly realized that there was an evident hostility among some of the judges toward our side. Judge Boslaugh was presiding because the Chief Justice and two other justices had recused themselves and in their place state district judges had been substituted.

Boslaugh quickly threw us a curve. “Who do you represent?”, he asked. I replied that we represented the Nebraska legislature. Boslaugh disagreed. He instructed us that we were no longer representatives of the legislature but we were henceforth “special assistant attorneys general.” We were told that we represented the State of Nebraska. We objected, and told the judge that we would have to consult our client, the legislature. Boslaugh implied that he would kick the case if we did not relent. We spoke with our client–through the two legislators who had been designated as “managers.” They agreed that we had no choice, and Wes and I became “special assistant attorneys general” representing the State of Nebraska. And, that dear friends became very significant as I will next explain.

Working day and night to get ready, Wes and I went into seclusion at the Super Eight motel. We had help from young staffers from the legislature. They were willing but none of them had ever been in a trial. Wes called one of his law partners, Graten Beavers (who later became a county judge). He had a lot of experience as JAG prosecutor, and Graten drove from Kearney to Lincoln to help us. But we remained under the gun.

And then the call came.

A very experienced criminal defense attorney from Omaha called. His call was a bombshell. His client was the mastermind of the “straw man” loans and the main principal at the failed institution. Since Wes and I were now special assistant attorneys general, we had the power to grant immunity. He wanted a deal. In exchange for immunity in the pending prosecution in state court, his client would appear as a witness against Douglas and explain fully that the Attorney General knew exactly what was going on. I listened, and told the lawyer I would have to get back to him.

My initial inclination was to reject the offer. It was too high a price to pay. But, without that testimony, we almost surely would be unable to convince five judges beyond a reasonable doubt that Douglas had guilty knowledge. I decided that I needed to consult with the local prosecutor. His name was Mike Heavican. I did not know Mike then, although I consider him a good friend now. He later became the United States Attorney for the District of Nebraska and presently serves as Chief Justice of the Nebraska Supreme Court. When I called Mike, he was very helpful. Essentially, he said that he thought it would be wrong to do any deal. Even a deal limited to use immunity would put the malefactor in a position to argue for leniency if, as was likely, the state criminal prosecution against him was successful. Mike and I agreed that I should completely reject any offer of cooperation. And I did.

After the trial, which was televised throughout the state on public television, the outcome I had feared came to fruition. We had convinced a majority of the Supreme Court that Douglas was guilty. Hastings, Shanahan***, and Grant, Justices, and Moran, District Judge found that:

based on the evidence before us, we find beyond a reasonable doubt that the misrepresentation by Douglas was willfully done with a corrupt intention. Specifically, we find that Douglas is guilty of specification No. 1 of the articles of impeachment and resolution submitted by the Eighty-eighth Legislature, Second Session, of the State of Nebraska. Therefore, we would find that Paul L. Douglas has committed a misdemeanor in his office as Attorney General of the State of Nebraska.

 State v. Douglas, 349 NW 2d 870, 903 (1984).

Lacking a super-majority, however, Douglas escaped conviction.****

So, I will conclude with a question. Was I a dumber than a mule for rejecting the cooperation agreement?

Photo credit: a-z animals.

Photo credit: a-z animals.

To this day, I go back and forth on the answer to that question. Quite frequently, I bray and wiggle my pointed ears.


*Among other witnesses, we called the brilliant Ronald D. Rotunda, a constitutional law expert, an ethics expert and a lawyer who served as assistant majority counsel during the Watergate scandal and investigation.

**As a side note, the feds had brought in a special prosecutor from the Department of Justice. I had convinced him to give me the grand jury transcripts under Federal Rule of Criminal Procedure 6 as it then existed. On the day I was scheduled to drive to Omaha to get the transcripts, the DOJ prosecutor pulled the plug asserting that the FBI’s “in-house counsel” did not believe that disclosure was permitted under Rule 6 because I was really not a prosecutor. Tell that to Justice Boslaugh, I thought to myself.

***Tom Shanahan later became a federal district judge and my dear friend. I never spoke to him about the Douglas matter.

****Mr. Douglas was later prosecuted for what amounted to perjury. I testified against him. He was found guilty but his conviction was overturned when the Nebraska Supreme Court found that the legislative committee that administered the oath lacked the power to do so. See here. Subsequently, Douglas lost his law license for four years, was reinstated and practiced law until his death. See here. Mr. Douglas later appeared before me several times. It was awkward. That said, he always treated me with respect and he always did a good job for his clients. So far as I am concerned, Paul Douglas was a good man and a good lawyer who made a bad mistake. He passed away in November of 2012. See here.

More on the remarkable Justice Ruth Bader Ginsburg

In these pages, I have written about Justice Ginsburg and the enormous respect I have for this tiny intellectual powerhouse. See Justice Ginsburg is not too old to continue to serve and anyone who says differently is a mean son-of-bitch and a misogynistJustice Ginsburg, and Justice Ginsburg shows us (again) that law is not politics.

Image credit: Simmie Knox, under commission of the United States Supreme Court

Image credit: Simmie Knox, under commission of the United States Supreme Court

With a tip of the hat to Howard Bashman and How Appealing, I call your attention to a long interview of Justice Ginsburg by Jeffrey Rosen, entitled Ruth Bader Ginsburg Is an American Hero She’s staying put—and has some choice words for young feminists. An interview, New Republic (September 28, 2014). I urge you to read it.

There is a lot of interesting information contained in the interview including Justice Ginsburg’s speculation that if Justice Sandra Day O’Connor had not retired Citizens United, Shelby County, and probably Hobby Lobby would have turned out differently. Her respect for Chief Justice Rehnquist also makes for a fascinating insight into the inner workings of the Court. Rosen has done us all a service with this probing interview.


Live and let live in Lincoln

An English professor and a group of fellow travelers, Nebraska Watchdog.org, want the University of Nebraska to stop a tradition that started in the 1940s. That is, the release of balloons after the football team scores its first touchdown.

These folks say the practice amounts to “littering” and that it hurts the environment. Taking this concern seriously (for reasons that escape me), the University Athletic Department responded. “Research shows that latex balloons are safer because they are made from organic materials that begin to break down immediately and shatter into small pieces within about three hours of release, or after rising about five miles into the air,” said Chris Anderson, director of community relations for the athletic department. “Because we care about our environment, we will continue to use only latex biodegradable balloons, cotton strings and will closely monitor research in this area,” she said.

I am all about civic peace especially when it comes to the environment. Indeed, I often hum the original version of “We are the world.”

With that as my motivation, I have a proposal to bring the parties to a settlement:

If the very earnest anti-balloon crowd promises to stop riding their foreign-made bicycles through downtown Lincoln to get to campus causing all sorts of mayhem for people who actually work for a living, the University athletic department will put a Kermit the Frog Earth Day logo on every balloon.

What say you English Professor and Nebraska Watchdog.org, kerfuffle settled? Or is the prospect of regular people having fun by following a long and harmless tradition just more than you can stand?


What 42 years with the FBI and as an AUSA teaches you about listening to jurors and judges after the verdict

I love hearing from experienced trial lawyers. Jeffrey H. Kay is such a person. Recently, Jeff wrote me and told me about his views respecting what young lawyers can learn from listening to the jurors and the trial judge after a case has been tried and the jury verdict rendered. Jeff’s long experience comes from the perspective of an Assistant United States Attorney trying big and small criminal cases. That invaluable experience is something that I thought the young trial lawyers who read this blog would be interested in reading. I asked Jeff whether I could reprint his thoughts as a guest post. He agreed.

Here it is:

I recently retired after 42 years of government service, as an AUSA in the SDFL. I served as Chief of Economic Crimes Unit in the Fort Lauderdale Office, we picked up the initial UBS Bank Case (offshore bank account investigation ) and ran with it.

Photo credit: SunSentinel. Jeff holding up scam solicitation.

Photo credit: SunSentinel. Jeff holding up scam solicitation. For the newspaper article, see here.

My career path was a bit unusual as I was recruited by the FBI out of law school in 1969 and served in South Carolina and New York City. I was lucky enough in 1977 to be offered a position as an AUSA with the USAO in the EDNY. I was with the USAO in EDNY from 1977 to 1979 and took a transfer to the SDFL, for better weather and more golf!

In my days in the EDNY as a young prosecutor it was very common for our federal judges at the end of the trial to either, ask the young trial lawyers back into chambers to discuss the trial or to have the lawyers meet with jurors, if they wanted to, to discuss the case. It was a learning experience beyond all as I quickly learned there were three trials in the same case.The first being the trial as a prosecutor I thought I was going to try, secondly the case the judge allowed you to try, and the third the case the jury thought they heard. Sometimes these versions did not even come close to one another. And, yes there was another case, the case the Judge he thought he tried!

By listening to the judges and even jurors it was fascinating to learn what issues they picked up on or even missed and what evidence or witness they liked or disliked. Yes, sometimes it could be disheartening to learn that what we thought was the “smoking gun ” in the case was missed or not even considered that important by the jury.

One thing I picked up on early was the dissatisfaction by the jurors that the trial and how it is going to play out in front of them is not explained well enough to them. Even with TV and movies they would ask questions about why this was done or that was done on procedural issues. It seemed the jurors felt we as lawyers and the judges took them for granted in how the trial was going to proceed. From that point on I tried to explain the process or ask the Judge to give a little more information as to how the Court was going to conduct the trial.

My opinion as an old timer is that young lawyers would learn a lot from being able to speak to jurors about the trial with the judge present, obviously with the admonition of not being able to go behind their verdict, but to at least hear from the jurors what they liked or did not like about the trial. Hearing from the judges I thought was also interetsting.as you learned a few tidbits about that judges trial ideas for future use.

Thank you Jeff for your fascinating insights. Please enjoy your retirement. You have earned it, and then some.


I know who should replace Eric Holder as Attorney General, I just don’t know his or her name

Attorney General Eric Holder is undoubtedly a fine person, although I was and remain plenty critical of him. His refusal, for the sake of political expediency, to deal with and set right the clemency process in a timely fashion ruined lives. His goofy rejection of empirical data on risk assessments for criminal sentencing purposes is inexplicable unless viewed through a partisan lens. These are just two of the reasons why I am not sad to see Mr. Holder go. But the question remains, who should replace him?

I think I know who should replace Holder, but I don’t know the name. That person is buried deep in the bowels of the DOJ. He or she knows where the bodies are buried, he or she has been at DOJ forever, he or she is apolitical, and he or she is universally respected for wisdom, fairness, experience and guts. Importantly, he or she does not want to be President Obama’s friend. Rather, he or she is reluctantly willing to undertake the awesome responsibility of becoming the chief lawyer for the United States of America.

Take John “Jack” C. Keeney as an example. On September 24, 2010, at the age of 88, his “swearing-out ceremony” produced the largest-known gathering of attorneys general and deputy attorneys general in Department history. Keeney began his remarkable career in 1951 as an attorney in the Internal Security unit of the Criminal Division, prosecuting conspiracy cases under the Alien Registration Act of 1940. In 1960, he joined the Organized Crime and Racketeering Section, ultimately becoming Deputy Chief and developing a close relationship with Attorney General Robert F. Kennedy. In 1969, he became Fraud Section Chief, where he emphasized white-collar criminal prosecutions. And in 1973, he was appointed Deputy Assistant Attorney General, a position he held until his retirement. In that position, he was responsible for overseeing countless prosecutions of organized crime, racketeering and public corruption.

The appointment of someone like Jack Keeney would cause the pundits, Republican partisans and Democratic partisans to swoon. That would be great for America, assuming the public interest is something we still care about.



iPhone irony

The Washington Post is carrying two stores of interest to iPhone users. All the federal judges in Nebraska are provided with iPhones (4s) for work and, in my case, play. The first story recounts that the FBI Director went wacko about the new Apple operating system (iOS 8.0 plus subsequent iterations) because it is encrypted in such a way that law enforcement officers can’t easily get into Apple products. The second Washington Post article recounts that if you downloaded iOS 8.0 or 8.1 to your new iPhone 6 or iPhone 6 Plus the phone no longer works as a phone–it becomes a really expensive reminder that Steve Jobs is dead.* We judges have been told not to download the new operating system until our IT people give the OK.

Do any of you see the same amusing irony that I see? Delicioso.**


*Apparently, iOS 8.2 issued a day or so ago fixes these problems. See here.

**If you find references to oral sex disconcerting, do not look up this word in the Urban Dictionary. Substitute “schadenfreude” instead–Germans are far more repressed. Trust me, I know.


PET scan results

After six months of treatment, I finished my chemo therapy about three weeks ago. This Tuesday, I had a PET (positron emission tomography) scan to see whether the cancer was gone. The news is not perfect but it’s not horrible either.

1. The follow-up PET scan shows two areas of continued metabolic activity: (a) the lung nodule biopsied by UNMC last February and determined to be a fungus. My oncologist was not in the least bit concerned with this spot. In fact, he said it would be very unusual for Hodgkin’s lymphoma to migrate to the lung. And (b) a small area deep in my groin, left side, where everyone suspects the cancer originated. This area is more of a concern.

2. The results of PET scans are measured in units called “Standardized Uptake Values.” My SUV was 3. According to Radiopaedia, “The cut off between benign and malignant lesion/nodule is in the SUV range of 2.0-2.5.” However, and for the purpose of perspective, my oncologist said that an SUV of 10 or above almost surely reveals cancer. That is consistent with the literature that I have read (“SUV >10 may predict for an aggressive histology.“).  Consequently, while I could have cancer remaining in the left side of my groin, considering the grand scheme of things, my SUV of 3 is relatively “low.”

Credit: CENTRE JEAN PERRIN, ISM/SCIENCE PHOTO LIBRARY.  This is an example, and is not my scan. The PET scan shows cancerous sites in the coloured areas for a patient with Hodgkin's lymphoma.  The cancer is present in the bilateral and mediastinal axillar lymph nodes.

Credit: CENTRE JEAN PERRIN, ISM/SCIENCE PHOTO LIBRARY. This is an example. It is not my scan. The PET scan in this example shows cancerous sites in the coloured areas for a patient with Hodgkin’s lymphoma. This scan was taken prior to treatment.

3. I will have another PET scan on November 17, 2014 and I will learn the results when I see my doctor on November 20, 2014. If the SUV increased significantly, then I am likely to undergo additional chemo therapy or radiation. If the SUV remains about the same, the doctor may advise “watchful waiting” or a more aggressive approach that would involve additional chemo therapy or radiation, depending, I suppose, on what he had for breakfast that morning.

4. For now, I may work as tolerated. The doctor advises that it takes 2 to 3 months to “recover” from the chemo I have just completed. With that in mind, I intend to reenter the assignment wheels and assume a regular case load starting December 1, 2014, subject, of course, to the November PET scan results. In the interim, I will continue to do work in the office and conduct short hearing such as sentencing proceedings.

The judges and staff at work have been great. In particular, I am especially indebted to Chief Judge Smith Camp, Judge Gerrard, Judge Zwart and the very special people who work with me on a daily basis, Jan, Jim, Kris, Gabi, Ryan and Connie. They have been and continue to be patient and supportive and seldom bark at me even though I whine constantly.


PS What Miriam Engelberg famously wrote certainly applies to me and I like that about myself:

Image credit: Miriam Engelberg

Image credit: Miriam Engelberg

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