Going out with a bang–and a sniff

Shannon P. O’Connor recently retired as the First Assistant Federal Public Defender for the District of Nebraska. Shannon spent his career defending people accused of crime.

Yesterday, our Court celebrated Shannon’s retirement. Shannon has always been known for being tough, candid, funny and delight to deal with. He was one of the very best.

His last act before retirement was arguing Rodriguez v. United States on January 21, 2015 before the United States Supreme Court. This was a dog-sniff case following a traffic stop. You can read the oral argument transcript here. Shannon did a great a job.

Photo credit: Saul Loeb/AFP/Getty Images

Photo credit: Saul Loeb/AFP/Getty Images. (This is not Shannon.)

As Shannon enters into his well deserved retirement he can do so knowing he went out with a bang–and a sniff. Shannon should be very proud of himself. Goodness knows, he made the rest of us in flyover country proud of him and the Federal Public Defender’s office for the District of Nebraska.


Tony Mauro and transparency at the Court

One could argue that the Supreme Court is by far the most consequential organ of our federal government in 2015. After all, it will decide whether national health insurance will be national, and whether the states will be required to authorize the marriage of gays. The paralysis that we see in the relationship between Congress and the President is not a problem for the Court. It will decide, and, like it or not (please listen Mr. Huckabee), everyone else must follow.

The foregoing is why you should read Tony Mauro’s piece entitled Big cases, but little room at court: Column, USA Today (January 29, 2015).  How can it be that at most the Court’s functioning can be watched by no more than 200 regular citizens at a time?

Chief Justice Robert’s seeming wry embrace of the hidebound traditions of the Court aside, it is long past time that arguments be televised and shared with the world. By making transparent our own modern Oracle of Delphi, the ravings of the Pythia, and the translations of the high priests into elegant prose, might even end up being believable to we, the great unwashed. Plainly, plebeians like you and me desperately need to believe in something.



After the fact legislative history and the “Cornhusker kickback”

Since the bouts of cancer suffered by Joan and me over the last several years, I have concluded that the Affordable Care Act (ACA) is a good thing as a matter of policy.* However, legally speaking, I am agnostic about the case pending in the Supreme Court, King v. Burwell. But that case does have a fascinating legal twist with a Nebraska connection that I briefly explore in this post.

ACA opponents say that the clear language of the law allows tax credits to qualifying low- and middle-income Americans who purchase insurance only on exchanges established by states. The tax credits are seen as essential to making the coverage affordable. The problem is, however, that only about a third of the states have created exchanges. Elsewhere, federal authorities have established the exchanges. Although the law says the subsidies go to those who purchase insurance on exchanges “established by the State,” the IRS has interpreted the law to mean Congress wanted all Americans who purchase through any exchange to get the credits.

So, the issue writ small is this: What do the words “established by the State” mean? Well, remember the so-called “Cornhusker kickback?” Senator Ben Nelson was unfairly pilloried, in my view, for demanding, so the Republicans said, a quid pro quo for his support of the ACA.  Here is what a local reporter wrote on that subject upon Mr. Nelson’s retirement:

With Nelson as a key holdout vote on the Patient Protection and Affordable Care Act, Senate Majority Leader Harry Reid made a deal with him to allegedly secure his vote, giving the Democrats the 60 votes needed to kill a Republican filibuster.

The deal included language giving Nebraska 100 percent federal funding of the Medicaid expansion indefinitely. It also included language allowing states to restrict funding for abortions under certain circumstances.

But the deal drew so much fire from critics — who said it amounted to Nelson selling his vote — that he asked Reid to remove the permanent Medicaid exemption from the legislation.

Kevin O’Hanlon, ‘Cornhusker Kickback’ part of Nelson’s Senate legacy, LINCOLN JOURNAL STAR (December 27, 2011).

Now, in a fascinating twist, Robert Barnes of the Washington Post reports that Senator Nelson has written a letter to the ACA supporters before the Court backing their position.** In a critically important Amicus brief is the reference to Nelson’s recent letter:

Senator Nelson wrote the cited letter in response to a letter from Senator Casey asking him about Petitioners’ assertions that “the [ACA] was intentionally designed to deny tax credits to people in states with federally facilitated exchanges in order to ‘induce’ the states into operating their own exchanges” and that it “was designed this way because [Senator Nelson] and other unnamed ‘centrist Senators’ insisted upon this structure.” Letter from Senator Robert P. Casey, Jr., to Senator E. Benjamin Nelson (Jan. 27, 2015) . . . . In response to this query, Senator Nelson explained that he “advocated . . . for flexibility to the states to establish state-based exchanges with a federal exchange as a backup,” but “[i]n either scenario – a state or federal exchange –our purpose was clear: to provide states the tools necessary to deliver affordable healthcare to their citizens, and clearly the subsidies are a critical component of that effort regardless of which exchange type a state chooses.” Nelson Letter 1-2.

Amicus brief by the Constitutional Accountability Center on behalf of Senate Minority Leader Harry Reid, House Minority Leader Nancy Pelosi and others, at pp 17-18 n. 20. (The full letter is here.)

It will be very interesting to see whether the Supreme Court accepts Senator Nelson’s after the fact legislative history. So far as I know, the history of legislation made after the legislation has passed, and while the meaning of the legislation is before the Court, has never been considered before. How the Court deals with Senator Nelson’s letter as a matter of legislative intent should provide grist for the law reviews for many years to come.


*I learned something else too. When it comes to the ACA, cancer and me and mine, I am very much the hypocrite. Despite my earlier oath of allegiance to self-reliance, without my government health insurance, Joan and I would have been eating dog food while the cancer was eating us.

**H/t to Howard Bashman and How Appealing.


My Chief Judge, the brilliant and especially literate Laurie Smith Camp, noted in a comment yesterday that I am “gifted” with Apophenia.  Apophenia is the experience of seeing patterns or connections in random or meaningless data. Although Laurie did not say so, it is frequently an artifact of mental illness according to the German shrink who first thought about it.

Following the maxim “play to your strengths,” here are five random but related (at least for me) questions that pricked my interest this morning:

1.  Why does Joan recycle the see-through sleeves that hold the two daily newspapers we receive each morning?


2.  Would it make a difference if the folks in Congress sat in during 100 sentencings of hapless “kiddie porn” offenders whose offense is looking at the photos and sharing them with others of a similar persuasion but who are otherwise harmless and often productive citizens?

3.  What are the chances of a black girl educated at the University of Nebraska ending up as a New York Times senior editor?

Photo credit: Nebraska Magazine. LaShara Bunting, New York Times Senior Editor

Photo credit: Nebraska Magazine. LaShara Bunting, New York Times Senior Editor

4.  Who figured out that an Amaryllis can defeat winter?


5.   If you really care about writing, why haven’t you read Jim Harrison’s A Prairie Prologue in Nebraska, New York Times (January 2, 2015)?*

Photo credit:    joannaviyukkane.tumblr.com. James "Jim" Harrison is an American author known for his poetry, fiction, reviews, essays about the outdoors, and writings about food. Best of all, he looks like I feel.

Photo credit: joannaviyukkane.tumblr.com. James “Jim” Harrison is an American author known for his poetry, fiction, reviews, essays about the outdoors, and writings about food. Best of all, he looks like I feel.


*H/t Michael K. Ausbrook. For more about Michael, see here.

Radley Balko and the inexperience of the Justices when it comes to criminal law

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”

My guess is that brother Balko and I agree on very little. But that is not true for Mr. Balko’s The Supreme Court’s massive blind spot, Washington Post (January 22, 2015).

Mr. Balko asserts:

This term, the Supreme Court heard two cases involving the actions of police officers during traffic stops. How the court comes down on the two cases will likely have significant repercussions far beyond the facts of the cases themselves. The court’s decisions could affect how police target motorists, which motorists they target and how often, and how they interact with motorists once they’ve pulled them over. The decisions will likely affect how police profile motorists to look for drug couriers, who gets detained and searched, and who has property confiscated through civil asset forfeiture.

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court.

(Emphasis added)

Mr. Balko is correct. And that is a big problem no matter your view about how criminal law cases should be resolved (or even taken up) by the Justices. There is a real world out there where cops interact with citizens. The Justices have no clue about how that world actually functions.


*Balko adds: “(*This post doesn’t look into that case [Rodriguez v. United States] specifically, but to see how the theme of the post applies to it, see this analysis by New York criminal defense attorney Scott Greenfield.) As frequent readers of this blog know, Rodriguez comes from the District of Nebraska.  As Scott noted, “But then an independent, intervening naked mud-wrestling match broke out, and being quite a fan, I sat on the sidelines, munching popcorn, watching intently.  In the comments to my post, Judge Richard Kopf and Lawprof Orin Kerr squared off.  It was a fascinating, and revealing, discussion.”


Eagles, Eiseley, Ed and time

My former law partner Ed, surely one of the best human beings ever, has a farm adjacent to the J-2 return to the Platte river from the small hydroelectric power plant near Lexington, Nebraska. It is a section of ground (640 acres) that borders the river and the return to the river from the power plant. It is some of the best agricultural land in the world.

Ed keeps the portion of the land near the river pristine. It is a magical place. I used to take the children there to watch wild life particularly the bald eagle. Eagles gather there all year. In the winter, the eagles are there in abundance particularly because the irrigation canal downstream of the power generating station and the river itself remain open as a result of warm water leaving the power plant.

Some of you may know of my love of Loren Eiseley’s work.  Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s. See my earlier post entitled All the strange connections and the classics. Eiseley was fascinated with time and the relationship of time to our physical world and our place therein.

I was reminded of Eiseley, my partner Ed, my children and the passage of time when I viewed the following photo of bald eagles near Ed’s place taken just two weeks ago.  The image took my breath away and instantly transported me back in time.

Photo credit: Lori Potter.  National Federation of Press Women President Lori Potter has been a staff writer, photographer and columnist for a small daily newspaper in south-central Nebraska, the Kearney Hub, for more than 25 years.

Photo credit: Lori Potter. National Federation of Press Women President Lori Potter has been a staff writer, photographer and columnist for a small daily newspaper in south-central Nebraska, the Kearney Hub, for more than 25 years. See potterspix.

Some things are more important than others.


Off to Omaha to “swear in” a new Congressman



In a first, at least as I remember it, our court will sit en banc this morning to conduct a ceremonial “swearing-in” ceremony for Rep. Brad Ashford, D-Neb, the new Congressman from Omaha.  He is also a lawyer.

Are ceremonies like this one a good thing? I don’t know for sure, but I think so. In any event, they seem harmless. Our court has always tried to maintain respectful relations with our Congressional delegation (except when I told Congress to go to hell), and this seems like a natural extension of that respectful relationship. What do you think?

For more on Mr. Ashford see here and here.


An explanation, but maybe a weak one

Yesterday I posted about the Ninth Circuit oral argument in the Baca habeas case. I introduced the post this way: “I am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.” In other words, I distinguished between my experience with federal prosecutors, and the apparent misbehavior of one or more state prosecutors in the Baca matter.

That distinction drew sharp criticism.  SHG at Simple Justice wrote:

Damn those state court prosecutorial scum. Thank the lord that nothing like that could ever happen in federal court, right Ted Stevens? Well, at least it could never happen in a Nebraska federal courtroom, because there may be some dolts, “but at least they are honest idiots.”


It’s no longer deniable that it happens, but that doesn’t change the deniability of it ever happening right in front of our faces but we didn’t catch it. Or we didn’t want to catch it. Or we like those guys, so we just can’t bring ourselves to believe that they could do something so wrong. After all, people we like never do anything wrong.

Better to be an honest idiot than lying prosecutorial scum.

Another commentator on Twitter, added that my introduction was a “laughably bogus conceit that . . . starts off with a paean to the honesty+wonderfulness of fed prosecutors.” bmaz (12:35 PM – 24 Jan 2015).

The author of the article that I linked to in my earlier post commented, “IF you think it doesn’t happen–and DELIBERATELY–in the federal system, read LICENSED to LIE: Exposing Corruption in the Department of Justice. Unfortunately, it does. No one is immune from the targeting that is going on now, and one of the worst has just been named to head the fraud section of the Department. see.LicensedtoLie.com.” (Sidney Powell says: January 24, 2015 at 1:29 PM) (capitalization in original).

I think it would be good to explain myself, although you may find my explanation weak and unconvincing. Nonetheless, here goes:

* Like you, I am the product of my experiences. They are deeply ingrained.

* Right out of law school, and for two years, I clerked for a federal appellate judge on the Eighth Circuit, Donald R. Ross, who was earlier both a war hero and the youngest United States Attorney appointed in the history of Nebraska. I witnessed first hand his insistence that federal prosecutors turn square corners. He beat into me, and others, the principle that federal criminal law viewed from the chair of the federal prosecutor was not about winning but rather about procedural and substantive fairness. That Judge William Webster, who served as a United States Attorney, United States District Judge, United States Circuit Judge, head of the FBI and head of the CIA, lionized Judge Ross on the occasion of the judge’s memorial service punctuates the point I am trying to make. I grew up in an environment where federal prosecutors were expected to be, and most often actually were, a very substantial cut above.

* After 28 years as a federal magistrate judge and district judge, I have witnessed countless examples of Nebraska federal prosecutors playing it entirely straight up and doing so when they could have stood silent and no one would have been the wiser.

* While I do not want to slander most Nebraska state prosecutors who are entirely ethical, I have too often seen in habeas cases or heard (in the case of a wiretap) state prosecutors behaving badly. My prosecution of the impeachment of Nebraska’s Republican Attorney General gave me a jarring and concrete reason to be skeptical about state prosecutors when compared to their federal counterparts.

* A former federal prosecutor and FBI agent with 42 years of experience brought Baca to my attention because he was appalled by the apparent misbehavior of one or more California prosecutors. That was entirely consistent with the pride I had witnessed in other federal prosecutors as they did the right thing day in and day out without any fanfare while expecting everyone else to do the same thing.

* To the degree that Judge Kozinski, a judge who I respect greatly, believes there is an “epidemic” of Brady violations in the federal system, that has not been my experience here in fly over country.  As a result, I did not want my earlier post to be an implicit endorsement of the judge’s criticism of federal prosecutors for violating Brady.

For those of you who read this blog with some degree of regularity, you will remember that this post is not the first one where I have tried to explain what many see as my tendency to be credulous when it comes to law enforcement. See Why Does Kopf Believe Cops Most of the Time?  My antidote is transparency with the hope that my implicit biases will be checked by such acknowledgements. As I have said before, that is not a perfect answer, but it is the best I can do with what little I have.





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