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

My friend, Bill Barrett–a good, modest and smart man who served in Congress as one of the last Republican moderates

Bill and Elsie Barrett with their daughter Beth. September 24, 2014 in RGK's chambers

Bill and Elsie Barrett with their daughter Beth. September 24, 2014 in RGK’s chambers

I have known Bill Barrett since 1974. Our firm represented Bill and his insurance, real estate and appraisal business. Ed, my law partner, and Bill grew up together in Lexington, Nebraska and were fast friends. Bill was born in Lexington on February 9, 1929. He was educated at Hastings College in Nebraska, and served in the United States Navy. If you met Bill, you would instantly like him. He genuinely cares about people, and that trait is as evident as his warm laughter, his modesty and his obvious intelligence. You would never know, however, that Bill was one of the most influential Nebraskans of the 20th century.

When Bill returned to Lexington after college and the Navy, he quickly became active in the Republican Party. He was the head of President Ford’s reelection effort in Nebraska, he served in that same capacity when George Herbert Walker Bush ran against Ronald Reagan for the Republican nomination for President and Bill became chairman of the Nebraska GOP. Soon after I first met Bill, his electoral star was ascendant. In 1978, Barrett was elected to the unicameral Nebraska Legislature. He served in that body for roughly 13 years until his election to Congress. He was speaker of the legislature from 1987 to 1991.

In 1983, Bill hired me to represent the Nebraska legislature regarding the Commonwealth Savings debacle and later regarding the impeachment of Nebraska’s Republican Attorney General. Bill’s courage in standing against the Attorney General, a heavy hitter in Republican circles, was extraordinary.

As the New York Times reported, Bill took the floor of the legislature and spoke hard truths:

State Senator William Barrett, a former Republican state chairman, offered particularly damaging comments. He recited how Douglas received a $371,814 check from Marvin Copple’s secretary on Dec. 27, 1977, for the sale of undeveloped lots but later said he could not recall whether he had received the check or whether the money came from Commonwealth.

The same day the check was deposited, Senator Barrett said, Mr. Douglas repaid a loan from Marvin Copple with a check for approximately $320,000. Mr. Douglas has contended the transactions of buying and selling land were but an unconventional way of paying him and and another lawyer, Paul Galter, for doing legal work for Mr. Copple on real estate development projects.

See also PROSECUTION RESTS IN NEBRASKA OFFICIAL’S IMPEACHMENT TRIAL, New York Times (March 28, 1984); State v. Douglas, 349 N.W.2d 870 (Neb. 1984).

In 1991, Bill was elected to Congress to represent the vast Third District of Nebraska. His district was one of the largest and most rural congressional districts in the nation. With nearly 63,000 square miles encompassing 66 counties, Bill returned from Washington, D.C., almost every weekend to see and hear his constituents. That was both remarkable and exhausting at the same time. It meant flying from D.C. to Denver or Chicago and then to Lincoln on a small plane, and after that a car drive of six to seven hours if he was heading to the western end of the district. Yet, from January 1991 to December 2000, Barrett missed only 63 of 5,795 roll call votes. See gov.track.us. This was far better than the median of the lifetime records of all representatives who have served up to and including Dec 2000. Id.

The trusting relationships Bill built with his constituents was evidenced by the fact that he was re-elected by more than 75 percent each term, gaining votes from Republican and Democrats alike. In fact, in the 1998 election, Bill had neither Democratic nor Republican opposition in the primary and general elections. Bill served five terms until 2001, and then at age 72 he decided not to seek relection instead preferring to rest and recoup and spend time with his beloved wife Elsie, his children and grandchildren. Of course, Bill returned to his hometown, Lexington, eschewing the allure of retirement in Washington, D.C.

When Bill was in Congress he was fiscally conservative, but objective third-party observers have recognized that Bill was an ideological moderate. See, for example, the scatter plot showing Bill’s ideological position relative to other members of the House prepared by gov.track.us. While in Congress Bill successfully sought key committees–the Agriculture Committee and the Education and Workforce Committee. He worked hard to keep these posts because of their importance. His increased seniority helped him to continue to work effectively for childcare, education, health care, rural development, agriculture and other vital issues. Bill served three terms as chairman of the Agriculture Subcommittee on General Farm Commodities and vice chairman of the full committee, all of which positioned him to help write two Farm Bills.

On a personal level, Bill came to and spoke at my confirmation hearing. See HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE ONE HUNDRED SECOND CONGRESS SECOND SESSION ON CONFIRMATION HEARINGS ON APPOINTMENTS TO THE FEDERAL JUDICIARY, at p. 4 (Thursday, May 14, 1992). That was the one and only time I ever heard Bill stretch the truth.

In short, Bill Barrett is a good, modest and smart man and one of the last Republican moderates. I am honored to call Bill my dear friend. Although he is 85 years old and he is physically frail, Bill’s mind and sense of humor remain sharp as ever and his warm smile still lights up a room. I cannot express adequately how happy that makes me.





One trial lawyer’s view about speaking with the jury after the verdict

Kyle McNew is a bright and upcoming young trial lawyer who clerked for a federal district judge and then with federal circuit judge. Recently, he sent me an e-mail about his experience while clerking for the district judge. I was impressed by the e-mail because Kyle articulated why I think speaking to jurors after a trial is very worthwhile.

I asked Kyle if I could reprint a portion of his e-mail and he agreed.  Here it is:

I just read your post about interviewing jurors.

. . . .

[One of my first assignments] was to be the clerk on a 4 month, multi-defendant white collar criminal jury trial. All of the defendants had unlimited defense funds, so these were the best white collar attorneys in DC up against some of the best white collar prosecutors DOJ had to offer. I had graduated law school in May, took the bar exam in July. This trial started the first week of October. The entire experience was incredible, and I can truly say that I know first hand what it is like to drink from a fire hose. But the highlight of the trial was spending about 5 hours with the jury after they rendered their verdict. The jury came back at about 10 am on the 5th day of deliberations. My judge had me reserve a private room at a very nice restaurant just down the street [from the courthouse] for lunch. The jury delivered its verdict (not guilty across the board) and off we went to lunch. . . . We never asked them why they did what they did, because it was obvious. Instead, we asked what worked, what didn’t, what they thought of the process, what could be done better, etc. For an aspiring trial lawyer, it was like manna from heaven. We did the same (sans fancy lunch) for every other trial we had, but that lunch session was the absolute highlight.

As a trial lawyer, I still try to speak to jurors as much as possible. To their credit, they usually don’t want to, so we often hire a jury consultant to contact them and frame their inquiries in terms of research. Less valuable than being able to speak with them face to face, but still valuable. 

Kyle was fortunate indeed to work for a trial judge who cared enough about jurors and young law clerks that he was willing to spend a lot of time listening to and educating them both. What an incredible experience for the jurors and for Kyle.

Thank you Kyle for sharing your experience.



Image credit: Charles M. Gandolfo. Licensed per New Orleans Historic Voodoo Museum, Jerry Gandolfo and Creative Commons Attribution-ShareAlike 3.0 Unported license.

Image credit: Charles M. Gandolfo, pursuant to an authorization from the New Orleans Historic Voodoo Museum and Jerry Gandolfo by virtue of  a Creative Commons Attribution-ShareAlike 3.0 Unported license. No changes were made to the image.


When I was Chief Judge, I convinced our judges to take and exchange the results of the Myers-Briggs Type Indicator® (MBTI®) personality inventory. I don’t remember where I ended up, but if you think “fascist” you’d be about right. My idea was that if the judges each understood the personality types of the other judges that the Age of Aquarius would be ushered in just like the Fifth Dimension told us it would in 1969. It didn’t work exactly as I had planned. When we were discussing the results, I think that was the first time I heard STFU screamed aloud. Just kidding.

(You will love the visual aspects of this music video. I miss 1969. It was so goofy. You could hum Age of Aquarius while secure in the knowledge that our country had an inexhaustible supply of napalm.)

In any event, Chief Judge Laurie Smith Camp of our court recently persuaded all the judges to take another personality inventory. This time we took the Clifton StrengthsFinder® 2.0 put out by the Gallup Organization. Gallup claims to have distilled psychological theory into personal development practice by interviewing 1.7 million professionals from varying fields. Having quantified the different traits of the people they interviewed, they came up with 34 distinct patterns—what they call “talent themes”—that best describe the range of human uniqueness observed during their research:

  1. Achiever – one with a constant drive for accomplishing tasks
  2. Activator – one who acts to start things in motion
  3. Adaptability – one who is especially adept at accommodating to changes in direction/plan
  4. Analytical – one who requires data and/or proof to make sense of their circumstances
  5. Arranger – one who enjoys orchestrating many tasks and variables to a successful outcome
  6. Belief – one who strives to find some ultimate meaning behind everything they do
  7. Command – one who steps up to positions of leadership without fear of confrontation
  8. Communication – one who uses words to inspire action and education
  9. Competition – one who thrives on comparison and competition to be successful
  10. Connectedness – one who seeks to unite others through commonality
  11. Consistency – one who believes in treating everyone the same to avoid unfair advantage
  12. Context – one who is able to use the past to make better decisions in the present
  13. Deliberative – one who proceeds with caution, seeking to always have a plan and know all of the details
  14. Developer – one who sees the untapped potential in others
  15. Discipline – one who seeks to make sense of the world by imposition of order
  16. Empathy – one who is especially in tune with the emotions of others
  17. Focus – one who requires a clear sense of direction to be successful
  18. Futuristic – one who has a keen sense of using an eye towards the future to drive today’s success
  19. Harmony – one who seeks to avoid conflict and achieve success through consensus
  20. Ideation – one who is adept at seeing underlying concepts that unite disparate ideas
  21. Includer – one who instinctively works to include everyone
  22. Individualization – one who draws upon the uniqueness of individuals to create successful teams
  23. Input – one who is constantly collecting information or objects for future use
  24. Intellection – one who enjoys thinking and thought-provoking conversation often for its own sake, and also can compress complex concepts into simplified models
  25. Learner – one who must constantly be challenged and learning new things to feel successful
  26. Maximizer – one who seeks to take people and projects from great to excellent
  27. Positivity – one who has a knack for bring the light-side to any situation
  28. Relator – one who is most comfortable with fewer, deeper relationships
  29. Responsibility – one who, inexplicably, must follow through on commitments
  30. Restorative – one who thrives on solving difficult problems
  31. Self-Assurance – one who stays true to their beliefs, judgments and is confident of his/her ability
  32. Significance – one who seeks to be seen as significant by others
  33. Strategic – one who is able to see a clear direction through the complexity of a situation
  34. Woo – one who is able to easily persuade

The “test” is taken online and the taker is presented with 177 stimuli and he or she makes 177 responses–each item lists a pair of potential self-descriptors, such as “I like to help people.” See The Clifton StrengthsFinder® 2.0 Technical Report: Development and Validation (February, 2007). The descriptors are placed as if anchoring opposite poles of a continuum. From that pair, the respondent is asked to choose the statement that best describes him or her, and also the extent to which that chosen option is descriptive of him or her. The participant is given 20 seconds to respond to a given item before the system moves on to the next item. Gallup stresses that the “StrengthsFinder” is not designed or validated for use in employee selection or mental health screening (too bad). According to Gallup, feedback is provided to foster intrapersonal development.  As a result, comparisons across profiles of individuals are discouraged by Gallup.

So, how did I do? In order, my “strengths” were (1) input–one who is constantly collecting information or objects for future use; (2) learner–one who must constantly be challenged and learning new things to feel successful; (3) intellection–one who enjoys thinking and thought-provoking conversation often for its own sake, and also can compress complex concepts into simplified models; (4) achiever–one with a constant drive for accomplishing tasks; (5) analytical – one who requires data or proof to make sense of their circumstances.

I have two questions for the bright folks who read this blog:

  • Are personality inventories like the MBTI® and the Clifton StrengthsFinder® more like voodoo than science?
  • If personality inventories such as these have value, what, if any, value do they have for federal judges individually or in the management of their courts?




Would (and should) I perform a wedding ceremony for a gay couple in my courtroom?

Yes, I would happily do so. This assumes, of course, that state law authorized me to perform wedding ceremonies and did not prohibit gay couples from marrying. Can anyone put together an argument why I shouldn’t do so?*


*Incidentally, don’t worry about being labelled a bigot if you take the position I shouldn’t do so. You aren’t a bigot if gay marriage isn’t your cup of tea. Indeed, I can think of several solid reason why I shouldn’t perform such a ceremony.

Photo credit: AP and TPM. In 2013, Justice Ruth Bader Ginsburg made history lwhen she presided over the first gay marriage inside the U.S. Supreme Court.

Photo credit: AP and TPM. In 2013, Justice Ruth Bader Ginsburg made history when she presided over the first gay marriage inside the U.S. Supreme Court.


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