Talk amongst yourselves

Last evening, I spoke to the Robert Van Pelt American Inn of Court here in Lincoln. Years ago, I served as the Inn’s administrator, so I was happy to return to speak to the group about blogging.

I used a live hook up to the Internet, a big screen and a projector. I went through some posts, as well as a “behind the scenes look” at the blogging platform I use. I hoped to illustrate why I think that blogging can be a good thing for the bench and bar, and particularly the federal courts. My theme: It is all about transparency.

I touched on about 10 posts including a post entitled On being a dirty old man and how young women lawyers dress. A spirited discussion about the “dirty old man” post ensued.

It was fascinating, and the discussion was almost entirely fueled by comments from women. One female judge, who is not a prude, commented that the post generated so much heat because it highlighted a truth about inappropriate wearing apparel in court. On the other hand, a very experienced female trial lawyer said the post hit a nerve because it highlighted another truth, that is, women lawyers carry heavier burdens than men in the courtroom. One astute questioner wanted to know my target audience and my primary message. I said the audience was young female lawyers, and the importance of understanding that in the courtroom, “It is not about you.” She seemed skeptical.

Recognizing that this group was predisposed to be nice to me, I don’t pretend that last night’s discussion was representative of the views of anyone, women or men. But, I can say the topic remains one of significant interest to judges and lawyers. In other venues, the topic–how lawyers (both men and women) dress in court–deserves respectful discussion. However, having touched the third rail once with painful consequences, I don’t intend that this blog is the place to engage in such a discussion. As Linda Richman used to say, “talk amongst yourselves.”


Foie Gras

There are times when I am very glad I don’t have to preside over cases in California. The idea of spending my time dealing with a ban on foie gras would be more than I can take.

A federal district judge in California was not so lucky. He had to decide whether California’s law banning foie gras ran a fowl of federal law. He said it did. See here. But the “ducks are us” crowd promise an appeal. See here.

Photo credit: Global Action in the Interest of Animals and reproduced per Creative Commons Attribution 3.0 Unported license.

Photo credit: Global Action in the Interest of Animals and reproduced per Creative Commons Attribution 3.0 Unported license. As required by the license, no change was made to the photo.

This controversy reminds me that some things are more important than others. To wit:

The French delicacy Foie Gras is obtained by removing baby geese from their families, terrifying them and making them lead miserable, sordid existences against their will before finally allowing them to be slaughtered in cold blood at a very young age, by which point death is almost certainly the best option for them anyway.

Still, what’s good for the goose is good for Uganda.*


*H/t Sickipedia.

Same sex marriage, rational basis scrutiny and In Re Estate of Kittenbrink

I was a very young lawyer when I argued and lost In Re Estate of Kittenbrink, 264 N.W.2d 868 (D. Neb. 1978).  In that case, I attacked a statute as being irrational and violative of the Constitution because it discriminated against nephews.

The Nebraska Supreme Court held that despite the testimony of the Chairman of Judiciary Committee that a legislative study had determined that there was no rational basis for distinguishing between a nephew by blood as opposed to a nephew by marriage for Nebraska inheritance tax purposes, and despite the fact the law was therefore changed to treat such persons equally but only after the death of our testator, the challenged distinction “comported with the natural law of kinship.” It was therefore rational at the time. This was so even though our client was extremely close to the decedent and even though the difference in treatment cost our client nearly $155,000.

As I look back at Kittenbrink, and look forward to the Supreme Court’s decisions in the same sex marriage cases, it strikes me that I have never really understood what is and is not a rational basis for legislation. Indeed, I am perplexed that legislation may be rational one moment, but not the next. For those of you who read this blog somewhat regularly, and witness first hand the machinations of my fevered brow, my lack of comprehension probably comes as no surprise. It is, however, more than slightly unsettling to me.



A Forrest Gump solution to the “epidemic” of Brady violations and other similar horrors

Forrest famously said: "Stupid is as stupid does."

Forrest Gump famously said: “Stupid is as stupid does.”


As you can tell, I am simple-minded just like Mr. Gump. So, here’s an idea from a dolt. Prosecutors shouldn’t hide shit.

More specifically, why don’t federal prosecutors adopt an informal “open file” discovery practice for most matters, particularly run of the mill drug cases and the like. Screw Federal Rule of Criminal Procedure 16 and the Jencks Act.

Invite defense counsel to come to your office, offer them a beer and give them your file for review including all the witness interviews and proffer statements. Let them copy what they want subject to whatever restriction you have to impose to protect the physical safety of witnesses. Do this early on and make a record of what you are doing (except for the beer).

Why is this a bad idea?


In reply to “My John Deere Gator: Like A Boss”

Today, at Simple Justice, I see that SHG celebrates his John Deere Trail Gator. With a 12 inch plow, it is great for pushing snow and all sorts of other manly tasks. I love my Deere tractor too. However, since I am not a fabulously rich criminal defense lawyer I cannot afford a Gator. The Gator is the pièce de résistance of the John Deere line of toys for boys.



California caves

Commenting on the Baca habeas case from California, I caught a fair amount of guff for suggesting that federal prosecutors are a cut above their state counterparts especially when it comes to turning square corners. In Baca, California has now caved to the threats of the Ninth Circuit to wage a holy war and the state has agreed to a conditional grant of the writ. The order is here.

The LA Times has a great article on the case. See Maura Dolan, U.S. judges see ‘epidemic’ of prosecutorial misconduct in state, LA Times (January 31, 2015).* The article quotes a study regarding the behavior of state prosecutors in California, and the locus of the “epidemic” of prosecutorial misconduct alleged by some:

Santa Clara University law professor Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said.

“It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”

A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found.

I continue to believe that the huge majority of federal prosecutors (and certainly the ones I know) wouldn’t be caught dead behaving like the 707 state prosecutors in California that were identified in the study quoted above. If there are those who believe I am wrong and the “epidemic” has infected a substantial number of federal prosecutors, I would be interested in learning about solid evidence that federal prosecutors as a class engage in this type of “misconduct over and over again.”

Talk is cheap.


*H/t Howard Bashman and How Appealing.


What Angie can teach us about avoiding another deflate-gate at the Super bowl

In the playoffs, there is little question that the Pats (being lying, cheating, and stealing rats) deflated footballs in order to allow the delicate and tiny hands of pretty boy Tom Brady to more easily grasp and throw the pigskin.

⇓ (notice tiny hands requiring Brady to grasp football in odd ways)     

Ravens Patriots Football

Deflate-gate deniers attribute the loss of pressure in the Pat’s footballs to leakage, ambient temperature change and other sorts of nonsense. The NFL is deferring the investigation until after the big game this weekend. So what to do to prevent this horror from happening again during the Super bowl?

Fill the footballs with nitrogen. See the very accurate scientific diagram below.

nitrogen1-2I think I got this idea from Angie’s list, but I was drinking last night. When I drink, Angie sometimes appears in my dreams. In my somnolence, Angie’s hands are much larger than Brady’s hands. I’m also (relatively) certain that is true in real life.






⇐ (Notice large hand size)


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