Two questions for Jeff Gamso, Scott Greenfield and others with like experience

I have a lot of respect for Jeff Gamso and Scott Greenfield. I also have two questions for them. Others with like experience should chime in as well. But before I ask those questions, I urge you to read Close Your Eyes and Pretend Really Hard from Jeff and The Ferguson Lie from Scott.

I have absolutely no experience with grand juries except to the extent that I have picked several of them as the Chief Judge, I have compelled testimony before grand juries and extended immunity in doing so, and I regularly took grand jury returns when I was a magistrate judge. But, I have never represented a client before a grand jury, and I have never been a prosecutor who has presented evidence before a grand jury. I know next to nothing about the standards prosecutors typically employ at the federal level when deciding to seek an indictment before a grand jury.

With the foregoing by way of introduction, I ask Jeff and Scott and others with similar experiences the following two questions:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

2.  If you were a “straight up” federal prosecutor, would you seek a federal indictment of Mr. Wilson?

Jeff and Scott and others experienced in this area have absolutely no obligation to answer my questions. But inquiring minds want to know.

RGK

A must read about Judge Posner

With a tip of the hat to the incredible resource that is Howard Bashman and How Appealing, you must read: “The Maverick — A Biographical Sketch of Judge Richard Posner: Part I.” authored by Ronald K.L. Collins at “Concurring Opinions.” It is a wonderfully written and insightful piece that contributes greatly to our understanding of Judge Posner.

The failure to put Posner on the Court is a modern-day tragedy of immense proportions. It is infuriating that no President–Republican or Democrat–had the guts to nominate Posner because they feared that he was just too damn smart and too damn candid and too damn unpredictable and too damn intellectually honest.

RGK

Thanksgiving

This week I will sentence several people to prison. As I prepare, I can’t get Norman Rockwell’s drawing “Freedom from Want” out of my head.

Image credit: "Freedom from Want" by Norman Rockwell From March 3, 1942, © COPYRIGHT 2014 SATURDAY EVENING POST SOCIETY.

Image credit: “Freedom from Want” by Norman Rockwell From March 3, 1942, © COPYRIGHT 2014 SATURDAY EVENING POST SOCIETY.

I wonder whether the people I will send to prison this week share the same image of Thanksgiving as I do. In some ways, I hope they do. Yet, it would make it easier for me if they viewed Thanksgiving as just another day. It helps to dehumanize those who you sentence to prison, but I just can’t seem to achieve that state of perfect nirvana. Poor me.

RGK

Adversity

Mark walked on at Nebraska to play football from a small high school in Ohio, not far from the Pennsylvania border. He was very smart but very small. He wanted to play on the offensive line for the Nebraska Cornhuskers. The head coach, Bo Pelini, looked at his film. While doubting that the kid would ever play, Coach Pelini told Mark to come on out and we’ll see what happens. Of course, Mark would have to pay his own way.

Mark stands six-foot tall, according to the program. That’s probably a lie. The program says he is up to 290 pounds, but that is probably a lie too. But, Mark tried, and tried hard. That he knew the playbook, and the proper line calls, as well as the offensive line coach helped him. His smarts showed as he became an Academic All-Big Ten award winner on multiple occasions. That he started at center on the 2014 Nebraska football team was nothing short of a miracle. He was likely that smallest man to play that position in the Big Ten.

So it was on Saturday, November 22, 2014, that Mark played his last game at memorial stadium in Lincoln. It was Senior Day. Mark had reason to be proud as they announced his name. The chances that he would be the starting center for the ranked Huskers were vanishingly small when Mark first walked on at Nebraska.

It was a wonderful day for Mark. That is, until the first offensive play of the game. Mark snapped the ball, engaged the man across from him and the play ended. As it did, an opposing player rolled up Mark’s extended legs from behind. Mark fell with more than 300 pounds of opponent pinning one of Mark’s leg. His stout leg couldn’t bear the force and it twisted and wrenched back and forth. Mark writhed in pain.

Photo credit: MATT RYERSON/Lincoln Journal Star Nebraska offensive lineman Mark Pelini (56) grimaces as he his helped off the field in the first quarter at Memorial Stadium on Saturday, Nov. 22, 2014.

Photo credit: MATT RYERSON/Lincoln Journal Star
Mark (56) grimaces as he his helped off the field in the first quarter at Memorial Stadium on Saturday, Nov. 22, 2014.

As Mark lay on the ground, head coach Bo Pelini jogged on the field of play to comfort his center. One play on Senior Day was all that Mark would have as a memory. All that work. All that study. One play. The best day of Mark’s young life turned into the worst. They carted him off on a golf cart, and he returned to the sidelines barely able to walk with crutches.

Bo Pelini the head coach at Nebraska talks to his young men a lot about dealing with adversity and thereby learning important life lessons. I hope that will be enough for Mark Pelini, Bo’s nephew, and the bright and hard-working young man who epitomizes the best of big time college football. If nothing else, Uncle Bo ought to be damn proud.

RGK

The humor board

I concluded chemo in early September. With one exception, my second PET scan came back clean this Thursday. My left groin, where this all probably started, seems completely clear.

There is one small lymph node adjacent to the left lung that showed increased but relatively minor activity–a Standard Uptake Value (SUV) of 4.4 over 3.2 from two months ago. For purposes of understanding the scale of things, when I started treatment the lymph nodes in the left groin had a SUV of 31. Oncologists don’t worry themselves at all until a SUV consistently exceeds 3.0. So, a value 4.4. is not a big deal. It is helpful to remember that a PET scan cannot tell if cancer is present–it can only tell the extent to which tissue is using sugar at rate from which a doctor may infer the possible presence of cancer.

The increased activity in the small lymph note adjacent to the left lung may mean nothing, a slight non-cancerous infection, lymphoma, or another type of cancer. Normally, my oncologist would simply order a biopsy of the lymph node, but that cannot be done easily given the location.

Here is another complicating factor. I suffer from histoplasmosis in the left lung, confirmed by a biopsy at UNMC in March of this year. This is an infection from a fungal growth (mass) common with farmers and others who have worked outside in the upper mid-west, particularly in Ohio where I grew up next to a river. Riverine habitats are where the spores for the disease flourish. It is not cancerous and is frequently left untreated, but since it is an infection it may also be impacting the lymph node discussed above.

On the advice of Dr. G., my oncologist, I consulted Dr. M., the pulmonologist who treated me when I was hospitalized this summer when one of the chemo drugs decided to play hell with my lungs. Yesterday morning, Dr. M. advised that he could not get to the lymph nod to biopsy it using a bronchial scope, and that to do so would require the services of an interventional radiologist or a thoracic surgeon.

Dr. G. and Dr. M. consulted yesterday afternoon. They agree that I basically have three options: (1) do nothing, and wait to see what a third PET scan shows in several months; (2) biopsy the lymph node; or (3) surgically remove (a) the mass caused by the histoplasmosis and (b) the entire lymph node and (c) then do a biopsy of both. They have also agreed that the most conservative approach is to take my case to the “tumor board” (rhymes with “humor board”) at the hospital to get the advice of the board members.

The tumor board consists of doctors who have not treated me and are therefore entirely objective–peer review if you will. The tumor board will meet in early December. The board consists of oncologists, radiologists, interventional radiologists, thoracic surgeons, and other specialists. The tumor board will provide me with a written opinion regarding their advice. In short, I await the advice of the tumor board.

I am continuing with my plan to go back on the case assignment “wheel” December 1, 2014. My stamina is sufficient to do so. The only residual problem I have is with numbness in my left hand and both feet as a result of the chemo. That problem is not debilitating, although I walk like a drunk and can’t type worth a damn. Moreover, since I am no longer receiving chemo, I can no longer claim to be suffering from “chemo fog.”  While I really never suffered from that problem, the inability to use it as an excuse is a real bummer!*

RGK

*In a terribly sad but related matter, Joan no longer allows me to play the “cancer card.” For example, I have to take out the trash and she refuses to bake me apple pies.

Are federal trial judges who write bluntly in law reviews, blogs, etc., “flashers” who expose too much of themselves?

If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity?

Photo credit: sylvar. "The Flasher, with trenchcoat closed" per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

Photo credit: sylvar. “The Flasher, with trenchcoat closed” per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

 

I have reason to think that this blog may be part of a piece sometime in the future by a respected legal news outlet. I would guess that the article may be critical. If that occurs, I welcome both the attention and the scrutiny. And that brings me to my dear friend, Judge Mark Bennett, a truly wonderful person, a fantastic, but very opinionated, writer of law review articles and a great trial judge.

Mark was recently the subject of an article written by the estimable Alison Frankel, entitled When judges say too much, Reuters (November 18, 2014). The article deals with Mark’s decision not to recuse himself in a products liability case involving a smoker.

Judge Bennett

Judge Bennett

In part, Ms. Frankel wrote:

This homily was sparked by a recusal opinion issued Monday by U.S. District Judge Mark Bennett of Sioux City, Iowa. Bennett is overseeing a former smoker’s suit against R.J. Reynolds and Philip Morris as a visiting judge in Jacksonville, Florida. On Oct. 31, Philip Morris’ lawyers at Shook Hardy & Bacon and Arnold & Porter asked the judge to take himself off the case because of his 2013 article in Voir Dire, a magazine put out by the American Board of Trial Advocates.

Bennett’s article, “Obituary: The American Trial Lawyer, Born 1641-Died 20??,” lauded a lost breed of lawyers who are “perhaps more responsible for our enduring freedoms and the enforcement of our nation’s laws than any other,” he wrote. Through the good work of trial lawyers, he wrote, “American products, from airplanes to scalding coffee, pharmaceutical drugs and scores of others, are safer and kill and maim far fewer Americans.” One of the trial bar’s accomplishments, according to the judge, was that “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.”

She concluded her piece this way:

Considering the case law, I doubt Philip Morris can force Judge Bennett off the case. The company’s recusal brief focused on judges’ roles in jury selection in these tobacco liability cases in Florida, so maybe Philip Morris just wanted to prod Bennett into being careful about fairness during voir dire. (Stanley Davis of Shook Hardy and Sean Laane of Arnold & Porter didn’t respond to email requests for comment.)

Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.

I told the judge in an email that I believed Philip Morris was justified in questioning his impartiality. He said (very politely) that the opinion speaks for itself and that it would be inappropriate for him to comment further on a case before him.

I urge you to read the entirety of Ms. Frankel’s piece and the judge’s written decision explaining why he would not recuse himself. What do I think?

First, Judge Bennett was clearly correct as a legal matter. He had no reason to recuse himself. Experienced federal trial judges don’t worry about recusal motions, they are frequently filed but seldom granted. Those are simple legal questions, easily answered as Mark’s clear opinion demonstrates. Moreover, most of the time, we have plenty of judges who can take a case from a colleague if recusal is warranted.

Second, Ms. Frankel makes a more important point that is very much worth remembering. When federal trial judges speak candidly in their extrajudicial writings we take risks. Ms. Frankel explains:

I . . . believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.

This is matter of balance. It is not an easy balance to strike. But, I know this: Given the present state of affairs in the federal judiciary, transparency is more important than the fear that faith in the system may erode if we express ourselves too clearly, too forcefully, and, occasionally, too bluntly in law reviews, blogs and the like.

There will be times when we falter. Indeed, Ms. Frankel fairly links to my ill-advised attempt at humor (On being a dirty old man and how young women lawyers dress) while making points I thought were worth making about the appearance of women trial lawyers in the courtroom. That admitted, judges like Mark Bennett do the public (and the bench and bar) a great service “when they get real.” Like the “flasher” pictured above, we can do so without significant harm to the federal judiciary so long as we remember to keep our trench coats closed.

RGK

 

 

Faux Pelini

My former law partner, Judge Jim Doyle, sent me a link to an article written by Faux Pelini entitled How to be a college football coach who doesn’t get fired for a while, SB Nation (November 19, 2014). It is really funny.

I wish I could write like Faux Pelini particularly when I am trying to be funny. I have learned that pissing off half the population is not funny.

RGK

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