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.


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!*


*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.




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.


Dr. Bill Wright on another way to run a prison


I have previously written about Doc Wright, and his fabulous book Maximum Insecurity. Dr. Wright has written a new book that I hope to review soon. Jailhouse Doc is a memoir of his time as Medical Director of the El Paso Criminal Justice Center in Colorado Springs.

“Hoards of desperate people fresh from the streets, homeless addicts, illegal aliens, and gangbangers all ruled by a corrupt sheriff and his concubine sidekick made the supermax look almost pastoral. Told with humor and biting wit by the best-selling author of Maximum Insecurity, Jailhouse Doc follows Dr. Wright and his struggles with scamming inmates, corporate bureaucrats, and a sheriff who wants to be a doctor.”

For now, I am privileged to post Chapter 30 of Jailhouse Doc.* If  you care about prisons and inmates and money and crime and recidivism and humanity, you will be interested in Wright’s serious observations about another way to run a prison:


Chapter 30 – Philosophy: Enter at Your Own Risk

America is the land of the second chance—and when the gates of the prison open, the path ahead should lead to a better life.” – George W. Bush

In my country we go to prison first and then become President.” – Nelson Mandela


After nine years at this game of correctional medicine, I’ve got some thoughts on jails, prisons and in particular our system in the U.S. We’ve got lots of agendas when it comes to putting people behind bars, and not all of them seem very productive.

The first thing to remember is that most people in jails and prisons get out. They’re your neighbors again, working (or not) in your community around you, your spouse, and your children.

It’s a sad fact that the majority of people released from U.S. jails and prisons commit further offenses and head back behind bars again to repeat the cycle. What’s wrong with these guys? Didn’t they learn their lesson the first time?

Well, they did. They just learned the wrong lesson.

When someone commits a crime against another person, there’s a lot of emotion on both sides. What we want is for everything to be put back the way it was, like nothing ever happened. In this world, that’s not going to happen.

As the next best thing, society wants punishment of some kind. Just like when we were children, if we did something wrong and were punished, we’d learn to not do that again.

It seems reasonable, but it makes a lot of assumptions.

It assumes we’re in an environment where we have a model for better behavior and encouragement to follow that model. Jail isn’t famous for being a nurturing and supportive environment. Mom and Dad aren’t here, but Professor Butch and Professor Bubba are. Guess what the lesson today is. Breaking and Entering 102 or maybe Sexual Predation 203. Most inmates don’t learn new skills in jail; they learn new hustles.

So what do we do with thieves, rapists, and murderers? We might take a look at the Swedish model.

At over 700 imprisoned per 100,000, the United States leads the world in incarcerating its citizens. That’s like locking up the entire population of Houston, Texas, the fourth-largest city in the U.S. It’s more than ten times the rate in Sweden. The incarceration rate, while climbing in the U.S., is falling in Sweden, down a whopping 6 percent last year. Are we missing something?

If you look at prisons in Scandinavia, like Skien maximum security prison in Sweden or the island prison of Bastoy in Norway, we see a very different physical setup from supermax prisons in the U.S.

In Colorado’s maximum security prison, Colorado State Penitentiary (CSP), inmates are confined 23/7 to individual cells with steel bunk, desk, stool and toilet. A solid steel door with a tray slot for passing medication and food is the only contact a prisoner has with the outside. Exercise is also solitary in a spare room with a chin-up bar as the only furnishing.

In Sweden, their prison rooms look like a Motel 6 with TV, computers, bookshelves, rugs on the floor, curtains at the windows and separate areas for reading and recreation. The prisoners, with some exceptions, aren’t isolated, but are part of a community where each has a job with responsibilities and free time. They live in small, brightly painted wooden bungalows that accommodate up to six people.

Every man has his own room, and they share kitchen and other facilities. The idea is to get them used to the social situation they’ll encounter when they’re released. They earn about $10 per day and get a food allowance of about $120 per month. They fix their own breakfasts and dinners from items available in the prison’s supermarket.

For these prisoners, loss of freedom is their only punishment. Administration puts emphasis on cultivating individual responsibility and functioning in a community environment. Recidivism is about 30 percent in Sweden and only 16 percent for those released from Norway’s Bastoy prison, versus 65-70 percent in the U.S.

Bastoy’s governor, Arne Nilsen, a clinical psychologist by profession, makes a point: “In the law, being sent to prison has nothing to do with putting you in a terrible prison to make you suffer. The punishment is that you lose your freedom. If we treat people like animals when they are in prison, they are likely to behave like animals when released.”

Granted when I went to work at CJC I’d already had years of experience in corrections, but many start the job with zero corrections knowledge. In contrast, Norway requires three years of training to become a prison guard.

So is treating prisoners like human beings rather than people who should be shunned the secret to the Scandinavian success? That’s certainly part of it.

A second feature is placing greater emphasis on reaching young people at risk for trouble before they get into the formal justice system. It’s a compelling fact that 80 percent of death row inmates in the U.S. are products of the juvenile justice system.

Maybe these men could have been rehabilitated if reached early enough in their lives or if they were taught a different way when they started down the slippery slope of antisocial behavior. I don’t know if this is true, but it’s something we should think about in view of the Swedish model’s superior results.

Although it’s expensive to spend on preventive measures like education and social work to intervene in bad situations, it’s more expensive to let the problems develop. One estimate claims that $1 spent in prevention saves $17 in later costs of property loss and incarceration, let alone personal misery. Like the old oil filter commercial said, you can pay me now, or you can pay me later.

Regardless of one’s outlook on punishment, I think we can all agree that the best outcome of any crime is if it never happens. I’m way out of my depth proposing sweeping social change, but I think we need to rethink our concept of imprisonment. Is vengeance better than rehabilitation?

Any crime is horrible for the victim. The desire to lock up the perpetrator and throw away the key is strong. Society has a different stake. Most of the offenders are going to be out again, and we have an interest to prevent additional offenses.

Is loss of freedom enough of a punishment? Having worked around that atmosphere for nine years, I can vouch that loss of freedom is a major deal. If we could make the time in jail or prison actually productive for the offender, maybe it will be productive for us as well. Maybe treating criminals like human beings is an idea whose time has come.

Please tell me what you think.


*Doctor Wright has given me a one-time license to publish Chapter 30. He retains the copyright. No republication of Chapter 30 is permitted without Dr. Wright’s express written permission.

On being intimidated by a trial lawyer

By e-mail, I received the following from Nick, a lawyer,

I enjoyed your recent post “I am going to kill you!” and I was wondering if you might write on an analogous topic.

While its not on the topic of threats or fear per se, I’ve often wanted to see you answer the question,”Since becoming a judge, have you ever been intimidated by a person appearing in front of you?” This could be an attorney, a witness, an accused criminal; any party that might enter your courtroom. I think the conventional wisdom is that a judge would be unlikely to be intimidated, or at least never admit to it.

What a fascinating question.

The only time I remember being intimidated involved a contract case. I was intimidated by a trial lawyer. His name was Bill Janklow from South Dakota. The lawyer on the other side was Jim Gordon, a local fellow who is very talented. The jury trial occurred in 1994 when I had been a district judge for about two years. The case was Haight, et al v. Wyuka Cemetery, et al., 4:92-cv-00392-RGK (D. Neb.). Janklow represented the plaintiff and Gordon represented the defendant. Two days into the trial, it settled.

Here is what Wikipedia says about brother Janklow:

William John “Bill” Janklow (September 13, 1939 – January 12, 2012) was an American politician and member of the Republican Party who holds the record for the longest tenure as Governor of South Dakota – sixteen years in office. Janklow has the second longest gubernatorial tenure in post-Constitutional U.S. history at 5,851 days.

Janklow served as the 25th Attorney General of South Dakota from 1975 to 1979 before serving as the state’s 27th Governor from 1979 to 1987 and then the 30th Governor from 1995 to 2003. Janklow was then elected to the United States House of Representatives, where he served for a little more than a year. He resigned in 2004 after being convicted of manslaughter for his role in an automobile accident.

Early life
Janklow was born in Chicago, Illinois. When Janklow was 10-years-old his father died of a heart attack while working as a prosecutor at the Nuremberg Trials in Germany. His mother moved the family back to the United States, and in 1954 when Janklow was 15, they settled in her home town of Flandreau, South Dakota. Following a series of scrapes with the law, Janklow was ordered by a judge to either join the military or attend reform school. Janklow dropped out of high school and joined the U.S. Marine Corps, serving from 1956 to 1959. He graduated from the University of South Dakota in 1964 with a BS in business administration and then went on to earn a J.D. at the University of South Dakota School of Law in 1966. After graduation from law school, he was a Legal Services lawyer for six years on the Rosebud Indian Reservation, advancing to direct the program there.

In 1973, he received his first political appointment as the Chief Prosecutor of South Dakota and “quickly earned a reputation as a top trial lawyer.”

Tragically, Janklow died of brain cancer at 72. He was courageous and outspoken until the end. I highly recommend reading Jill Callison, Bill Janklow: ‘I know it’s the end of the trail,’ Argus Leader (Nov. 5, 2011). Janklow died about two months after that revealing interview.

Back to my case. Why was I intimidated. I suppose there are several reasons. First, Janklow had a larger than life reputation. Second, I was a “young” judge. Third, I have found that trying contract cases to juries is intellectually stressful for the judge. At least for this dummkopf, it is always unclear what portion of a contract case is to be decided by the judge and what portion of the case is to be decided by the jury. This matter was no different.

The trial went far better than I thought it would go. Janklow, who others have described as a “force of nature,” started off aggressively. I had to call him down a few times. I remember particularly that he wanted to “crawl into the jury box” when we selected the jury. I can’t stand that behavior, and I barked at him for doing so. I also remember that Janklow was hard of hearing and I had to speak very loudly to him. Those things said, as the short trial progressed, we got along fine. In fact, I came to like and respect Janklow just as I liked and respected Gordon. Nonetheless, I was certainly relieved when they were able to settle the case before it got to the jury.

So, in answer to your question Nick, a trial lawyer intimidated me. But, I got over it.


A note about editing and talented and nice people

I like to write. I am, however, a horrible editor of my stuff. Since I try to put out a daily post, and I have other pressures (like worrying that the idiots will try to fire Bo Pelini, the UNL football coach, a fine man who attracts kids with high character to play a rough sport), errors abound in this blog.

I have correspondents who gently write me with editing suggestions. They don’t fight me on substance. Rather, they do what any good newspaper editor or book publisher would do with a manuscript. They clean it up and make it more readable, more understandable. They attack grammar and spelling errors like a shark after bloody bait. Some even catch very small things like spacing mistakes.

Last night, for example, I substantially edited my earlier post, I am going to kill you!  Those edits were made after I received an e-mail from H. with suggestions worthy of an editor from one of the big book publishing houses. H., I am in your debt.

So, thanks to H. and others for your editorial help. I need and want the assistance, and I appreciate it. I may not always follow your advice, but please know that I have seriously considered it. In short, there are a lot of talented and nice people out there.


PS On a very few occasions, I ask my career law clerk Jan to edit a blog post. With a background in journalism and as a former Editor-in-Chief of the UNL law review, she is able to turn my manure into something less pungent. But, I don’t make a habit of asking her to edit the blog since she has real work to do.


The effects of prison sentences on recividism

As Scott Greenfield properly points out, I am big on empiricism at sentencing, particularly the use of actuarial data, including age, race, and gender. See Scott H. Greenfield, Prisons, Off The Hook (November 16, 2014). In a forthcoming article in the Federal Sentencing Reporter (which I have shared with Scott but asked him to withhold until publication), I will develop my thoughts further.

Nonetheless, using his powerful analytical skills, Scott now poses an important question: For those like me who push empiricism, where is the empirical analysis of the failure of prisons? He answers his own question. In a response to a comment, Scott cites to Paul Gendreau and Claire Goggin, The Effects of Prison Sentences on Recidivism, Corrections Research, Department of the Solicitor General Canada (1999).

Here is the executive summary of that article:

The use of prisons to control crime has increased in frequency in the last decade. Most recently, mandatory minimum sentencing policies have gained widespread popularity throughout the United States, severely limiting judicial discretion in sentencing. The principle rationale for mandatory minimums is the belief that length of time in prison acts as a deterrent to future recidivism.

Three schools of thought dominate the area. The first is that prisons definitely suppress criminal behaviour. Given the unpleasantness of prison life and the negative social stigma associated with incarceration, these should serve as deterrents to later criminal behaviour. The second, the “schools of crime” viewpoint, proposes just the opposite, that is, that prisons increase criminality. By this account, the barren, inhumane, and psychologically destructive nature of prisonisation makes offenders more likely to recidivate upon release. The third school of thought, which we label the “minimalist/interaction” position, contends that the effect of prison on offenders is, for the most part, minimal. This view states that prisons are essentially “psychological deep freezes”, in that offenders enter prison with a set of antisocial attitudes and behaviours which are little changed during incarceration. This perspective also suggests that lower risk offenders may be more adversely affected by greater lengths of incarceration through exposure to an environment typically dominated by their higher risk, more hard core peers.

Fifty studies dating from 1958 involving 336,052 offenders produced 325 correlations between recidivism and (a) length of time in prison and recidivism or (b) serving a prison sentence vs. receiving a community-based sanction. The data was analysed using quantitative methods (i.e., meta-analysis) to determine whether prison reduced criminal behaviour or recidivism.

The results were as follows: under both of the above conditions, prison produced slight increases in recidivism. Secondly, there was some tendency for lower risk offenders to be more negatively affected by the prison experience.

The essential conclusions reached from this study were:

1. Prisons should not be used with the expectation of reducing criminal behaviour.

2. On the basis of the present results, excessive use of incarceration has enormous cost implications.

3. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders’ attitudes, values, and behaviours while incarcerated.

4. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution.

For now, my response to this article and Scott’s larger point is muted. Suffice it to state that for the utilitarian judge like me, and keying upon 18 U.S.C. § 3553(a)(2)(C) commanding that the “court, in determining the particular sentence to be imposed, shall consider . . . the need for the sentence imposed . . . to protect the public from further crimes of the defendant . . . .,” I am in general agreement with the authors of the study* that the primary goal of sentencing ought to be incapacitation, with a dollop of retribution thrown in for good measure.  As a matter of fact, I believe that an empirical approach to sentencing may allow us to refine our decisions about offenders who require longer incapacitation versus offenders who require shorter prison sentences (or perhaps none).

In summary, thanks to Scott for his thoughtful views on this subject.


*I note that the article relies on data that is fairly old–86% of the studies examined in the meta-data analysis were from the 1970s.

I am going to kill you!

I suspect that if you took a survey of federal trial judges, you would find that many of them have received threats. Most of the time those threats are not serious. Of course, the problem is that you never know.

02On February 28, 2005, federal judge Joan Humphrey Lefkow returned home to find the bodies of both her husband and mother in the basement of her home on the North Side of Chicago. Both Michael F. Lefkow, 64, and Donna Humphrey, 89, had been shot multiple times. The Cook County medical examiner’s office stated that the victims were killed with .22 caliber shots to the head. No weapon was found at the scene, but two .22-caliber casings were recovered; evidence of a break-in was found as well. Initial suspicions focused on the possibility that hate groups were involved. On March 4, the FBI announced a $50,000 reward for information leading to the identification of anyone involved in the slayings. On March 8, investigators announced that DNA samples were obtained from a cigarette butt found inside the kitchen sink. Further evidence was recovered in and around the home, including a fingerprint, a bloody footprint, and a soda can.

On March 10, 2005, the Chicago Police Department and federal agents announced a possible break in the case. According to investigators, a van was stopped during a traffic stop in West Allis, Wisconsin, at 6 p.m. on March 9. As West Allis police officer Rick Orlowski approached the vehicle, the driver, identified as electrician Bart Ross, shot and killed himself.

Later that night, a suicide note was found in the van which admitted to the murders of Lefkow’s husband and mother, providing details about the crimes which would have been known only to the actual murderer. Ross was a plaintiff in a medical malpractice case that Lefkow had dismissed.

Investigators also found over three hundred .22 caliber shells in the vehicle, casings of the same caliber that were found in the Lefkow home. DNA evidence from Ross matched the cigarette butt found in Lefkow’s home. Ross also sent a handwritten letter to a TV station describing breaking into the Lefkow home with a plan to kill the judge.

Because of the Lefkow tragedy, any federal judge who wants one is provided with a rudimentary home security system.  We have one installed in our home. Frankly, it is a pain in the ass, but I know that my wife, Joan, feels better about being home alone knowing the system is in place. Note to reader: Joan is not afraid of anything, but she is not an idiot either.

Perhaps because I am bull-headed, I have left our name, telephone number and address in the telephone book. I don’t vary my route to work despite the suggestion of the resident judicial security specialist with the United States Marshals Service. Aside from the .22 rifle that I use to plunk the damn rabbits in Joan’s garden, I have refused the suggestion that I purchase and learn to shoot a handgun. None of this is bravery on my part. Rather, I insist upon living a normal life and most of the security tips seem over the top. Have I ever been seriously threatened? Frankly, I don’t know. But, I will give you four examples:

♦ Around 1990, when I was dating Joan, a friend of ours died who was a well-known trial lawyer. He lived in Kearney, about 200 miles west of Omaha where I served as a US Magistrate. I told Joan, who lived in Lincoln, that I would pick her up and we would drive out to the funeral. The evening before our trip, I lectured on the death penalty at the Creighton Law School. One of my daughters who was looking after Keller that evening received numerous telephone calls that were hard to understand but seemed threatening. That night when I returned home, she told me about the calls. In the morning, I called the Marshals and filled them in. I thought nothing more about it, and left for Kearney. When I arrived in Kearney, I noticed two US Marshals. It turned out that a few days earlier I had issued a writ to pick up some farm equipment owned by a member of the local Posse Comitatus group. When the Marshals checked my docket after I had reported the telephone calls, they became very concerned that the telephone calls may have come from that group, and they immediately notified the FBI* and sent two Marshals out to Kearney to follow us around until we arrived safely back at our homes. When I arrived at my residence that night, after dropping Joan off in Lincoln, I found the house filled with FBI agents and US Marshals.

A recording device was attached to the phone, the kids had been removed early from their schools, and our housekeeper was wide eyed. While nothing ever came of it, for the longest time Keller, who was then 10, wanted to become an FBI agent. The senior FBI agent who had been in our home was very kind to Keller and he went out of his way to explain what they were doing and why. Keller thought the world of him.

♦ On November 4, 1994, I began my first foray into the abortion morass.  A women had been raped, and a doctor performed an abortion of the fetus. The doctor then sought reimbursement  pursuant to the Nebraska Medicaid law. Nebraska refused to pay.  I granted relief to the doctor, and enjoined Nebraska from refusing to pay such claims. See Orr v. Nelson, 902 F.Supp. 1019 (D. Neb. 1994) (“Virtually all courts that have considered the issue have concluded that the 1994 Hyde Amendment preempts conflicting state law so that a state may not prohibit funding for abortions in cases of rape or incest while the state continues to accept federal Medicaid funds.”).

That decision was not popular, and it got a fair amount of publicity. About five months later, and on April 19, 1995, Timothy McVeigh blew up the federal building in Oklahoma City. The official investigation saw FBI agents conduct 28,000 interviews, amass 3.5 short tons (3.2 t) of evidence, and collect nearly one billion pieces of information. Somewhere in that mass of information are my discussions with the FBI. Rumors abounded that the Omaha federal building, and perhaps the Lincoln federal building, had also been selected as potential targets.

Our Federal Public Defender, David Stickman, represented a client who had recently been held at the federal facility in El Reno, Oklahoma. David reported to the FBI, so I was told, that his client, who David refused to name without his client’s permission, had information about the blast including the fact that I might have been a target, probably because of my earlier abortion decision. The FBI discussed this information with me, and told me that unless Stickman cooperated that they would arrest him as a material witness. They asked me to lean on David, and I refused. I urged the FBI to calm down, but they were not about to do so. To this day, I am not sure exactly what happened, but I later learned that David’s client agreed to speak with the FBI, probably in exchange for a potential cooperation deal. As it turned out, the client’s information had a ring of truth to it but was based upon rumor and speculation. I have always held Stickman in high regard, and this incident, particularly his willingness to go to jail if need be, only buttressed that respect.

♦ In 2004, I declared the federal “partial-birth abortion” statute to be unconstitutional. See Carhart v. Ashcroft, 331 F.Supp.2d 805 (D. Neb. 2004). Earlier, I done the same thing regarding Nebraska’s “partial-birth abortion” statutes. Both cases ended up in the Supreme Court. When I issued the decision on the federal statute, I was inundated by e-mails at my unpublished personal government e-mail address. How the writers got access to that e-mail address is unclear, but there is reason think that a right-wing web site obtained the address somehow and broadcast it the readers of the site.

The e-mails were almost uniformly nasty, but also frequently funny in a twisted sort of way. That prompted me to put together a “top ten list” of the dumb and dumber ones for circulation to my colleagues. For example, one of the writers proclaimed that my decision made the writer “embarrassed to be a Husker fan.” By the way, Wisconsin slaughtered the Huskers yesterday, with Melvin Gordon running for 408 yards against the vaunted Husker defense. That was not my fault.

In any event, one e-mail caught my eye. It was explicit. The author was going to kill me. I turned the e-mail over to the US Marshals, and they in turn gave it to the FBI. Since the poor guy who wrote the e-mail did nothing to hide his address, it was a simple matter for the FBI to find the fellow. I later learned that two agents interviewed the writer who was a decent man with a family and a good job. He apologized over and over for his impulsive gesture and, with a stern warning from the FBI, that’s where it ended.

♦ Three years or so ago, I begun to have trouble sleeping in my bed. My left leg and hip hurt like the devil. So, I took to sleeping in a chair in the family room. I am fairly certain that this was a precursor to the blood clots and cancer that later developed. Sleeping fitfully in the chair one early morning, I heard someone trying to get through the locked front door. A fairly big guy was banging and leaning heavily on the door. I flipped on the lights, and the fellow staggered back. I opened the door and told him to get the hell gone. He swore at me, but eventually left. I called the police, and two young female officers showed up in two separate cruisers. I told them what had happened, and they left in an effort to find the guy. And then a police sergeant showed up too. He asked me to get in his cruiser and took me several blocks from our home, where the other officers were putting handcuffs on a man. I was able to identify the man, and the sergeant took me back home. Along the way, he told me that the two female officers were rookies and he had been dispatched to my home because the dispatcher’s computer screen flashed an alert that I was a federal judge, and he was sure his captain would want a full explanation.

By the time I got home, one of our Deputy US Marshals was there. Even though the putative intruder was in custody, the Deputy Marshal carefully walked around the home looking into bushes and such with his flash light until he was sure that no one else was there. I subsequently learned that the guy had a criminal record, but was drunk out of his mind when he tried to get into our home. When he sobered up, he said that he thought he was at his apartment and he believed his roommate had locked the door. He entered a plea to disturbing the peace. The Marshals concluded that the guy was harmless.

So, what should you make of this? Probably nothing. Stuff like this goes with the job of being a federal trial judge. That is easy for me to say when the fine men and women from the US Marshals Service, the FBI and the local police take these matters very seriously.


*The US Marshals have the responsibility to safeguard judges. The FBI is called into handle any necessary criminal investigation.

On the creation of Circuit splits

I have been critical of Judge Sutton for creating a Circuit split in the SSM cases. Specifically, I have been critical of the good judge for giving insufficient weight to the thoughts of his colleagues on the four Courts of Appeal that had previously gone the other way.

I have now read a fascinating article that touches on this subject, among other things. See Aaron-Andrew P. Bruhl, Following Lower-Court Precedent, 81 University of Chicago Law Review 851 (2014). The article is reviewed here.

It is a slog, but if you are interested in such things (a doubtful proposition, I suspect), read the entire article. That said, the most interesting part of the article from my perspective begins at page 925 (near the end) where the author illustrates the problem that Judge Sutton faced.

That the case the author uses to illustrate the point has to do with the Packers and Stockyards Act delights me because of my weird sense of humor. But, the serious question raised by the author (and I hope Judge Sutton thought hard about it) is this:

If all the Courts of Appeals have gone one way, but they were all wrong (from your perspective), what weight (say predictability) should the Circuit Judge considering the new case give to those previous cases from other Circuits?

The discussion that ensues is thoughtful and illuminating.


*H/t to How Appealing.

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