Some good advice about representing the competent but crazy

photoKirk Redmond is the First Assistant Federal Public Defender in Kansas. He is very experienced and very thoughtful.

He read my post entitled Competent but crazy. In that post, I wrote that “I want to learn of the experiences of practitioners who have dealt with clients in this place of darkness and eternal suffering. That is, tell me please of your experiences in dealing with the crazy but competent.”

Kirk responded by personal e-mail. I found his response very practical and helpful. He has graciously allowed me to pass it along to you:

Your Honor-

Here is what I have learned over the years about clients with profound mental illness that does not render them legally incompetent.

1. Lean in and speak softly. When visiting these clients, the conversational tone is critical. When they speak louder, I speak more softly. When they get agitated and move toward me, I need to lean in to meet them. A quiet, close conversation creates a better bond.

2. All mitigation is double-edged. Judges perceive mental illness as mitigating and aggravating. Presenting a client as mentally ill without a plan for where we go from here is not mitigating at all. It is a recipe for recidivism. After de-institutionalization, jails are the only place that society has provided to contain many of my folks. But by getting Probation involved early in the process, a plan can be developed for what happens after whatever period of incarceration occurs. It works sometimes.

3. Much of the time, I can help only at the margins. The legal standard for competency is not high. My old boss referred to the test as “slipper-eating crazy.” If the client was not actually consuming his footwear, he is legally competent. On the ground, that is the case. It is our job as defense counsel to manage the detritus. As a result, we have a parens patriae relationship to our folks. It’s very hard. We spend a lot of time talking about these questions in our office.

Feel better.

No, Kirk I don’t feel better. But, I am very glad there are defense counsel like you who understand the problem, who deal with it as best they can, and who show empathy in the process. Thank you!


A parable

There once was an old man and an old woman. They lived in the midwest. They were conservative types, but not crazy. They weren’t particularly religious. They were white. Outside of work, they knew few black people. They had grown up believing the motto that the police were there “to protect and serve.”

One evening, they sat down in front of the TV to watch the news and eat their evening meal. On the TV, a news reporter spoke of a black man in Baltimore who died in police custody. His spine was nearly cut in two. The cops who made the arrest were all white.

The old woman turned to the old man, and asked: “What’s wrong with the police in this country?” The old man said he had no idea. He added, “If folks like us have lost confidence in the police, can you imagine what colored people (he slipped back in time and used a term common to his youth) must think?” The old woman nodded. After that, they were silent for the longest time.


Update: Going out with a bang–and a sniff–but not a whimper

downloadShannon O’Connor won the dog sniff case before the Supreme Court. See Adam Liptak, Supreme Court Limits Drug-Sniffing Dog Use in Traffic Stops, New York Times (April 21, 2015).  Thus, Shannon’s last official act before his retirement as a federal defender was to argue and win his first case before the high Court. Shannon, and everyone else at the Federal Public Defender’s Office for the District of Nebraska, have reason to be very proud. Shannon went out with a bang and a sniff, but not a whimper!


New York Judge says chimp can file habeas case. Do I get a staffing credit if a chimp files a federal habeas case?

According to an article in the American Association for the Advancement of Science’s online journal yesterday:

In a decision that effectively recognizes chimpanzees as legal persons for the first time, a New York judge today granted a pair of Stony Brook University lab animals the right to have their day in court. The ruling marks the first time in U.S. history that an animal has been covered by a writ of habeas corpus, which typically allows human prisoners to challenge their detention. The judicial action could force the university, which is believed to be holding the chimps, to release the primates, and could sway additional judges to do the same with other research animals.

David Grimm, Judge’s ruling grants legal right to research chimps, Science Insider (April 20, 2015).



Recognizing that the world famous (truly) Henry Doorly Zoo and Aquarium has lots of primates, my law clerks, upon learning of this ruling, asked the most pertinent question. If primates are persons, do we get more staff if the primates file federal habeas corpus petitions? I am interested in your thoughts.


*Many thanks to a former law clerk, who is generally a horrible person, for the tip.



“Harold Koh, who once called Bush the ‘torturer in chief,’ became one of President Obama’s fiercest defenders of aerial drone strikes.” Tara McKelvey, Interview With Harold Koh, Obama’s Defender of Drone Strikes (April 8, 2012). Koh, you will remember, was one of the harshest critics of the Bush Administration’s “torture memos” written by his former student John Yoo. Then he signed on to the Obama Administration and began to pimp the legal reasoning that justified targeted drone strikes as something other than assassinations.  As the former Dean of Yale Law School, and a highly regarded expert on international law, Koh’s reputation burnished the argument.

Now consider John Yoo. His work on the “torture memos” got his him sued, widely condemned by his fellow academics, including Koh, subject to disbarment actions and generally ostracized by many.* The irony, of course, is that Yoo’s legal work on the “torture memos” resulted in no deaths, while Koh’s work greased the killing of many.

Now, the shoe is on the other foot, sorta. While Koh visited at NYU this semester, some student and faculty members circulated a petition. It states:

Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable[.]”

Zoe Schlanger, Controversy Swirls Around NYU Law Professor Involved in Obama’s Drone Program, Newsweek (April 7, 2015).

Koh had earlier been criticized by a Yale colleague for precisely the same reasons:

Why did he get involved? It’s quite inconsistent with his general work before. Koh’s claim to fame as a law professor has to do with the notion that the way international law and human rights become effective is through internalization in people like the legal adviser at the State Department,” Bruce Ackerman, a Yale law professor, told the Daily Beast at the time. “To put it gently, targeted killings are not acceptable under international law.


This time around, however, the academics came out in full force lauding Koh and decrying the NYU petition.

Koh’s supporters recently released a statement that, while careful to acknowledge the importance of free debate, said, “We think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty.

Nahal Toosi, Harold Koh in the cross hairs, Politico, (April 19, 2015).

As for John Yoo, he takes no pleasure from the misfortunes of Koh, his former teacher and critic. Rather, Yoo said that although he disagrees with Koh on many issues, “the NYU protest strikes me as silly.” Id. Yoo added that “I don’t believe in karma.” Id.

While Yoo may not believe in karma, I know hypocrisy. Why did a large number of academics strive to make John Yoo a pariah while giving Koh a pass? Perhaps there are good reasons. But, somehow, I doubt it.


*”Harold Koh, the former dean of Yale Law School, once railed against the Bush administration’s treatment of terrorism suspects, including deriding legal rationales laid out by a former student, John Yoo. After Yoo left the Bush team to return to teach at the University of California-Berkeley’s law school, he found himself a pariah, with many students unsuccessfully urging the school to drop him for policies they said justified torture.” Nahal Toosi, Harold Koh in the cross hairs, Politico, (April 19, 2015).


On Thursday evening, I gave the George Norris lecture for the political science department at the University of Nebraska Kearney. I graduated from that institution in 1969, although it was then called Kearney State College.

My former law partner, Ed Cook and his dear wife Betty, drove all the way up from their retirement home in Texas to attend. Chancellor Doug Christensen and Senior Vice Chancellor for academic affairs Charles Bicek attended also. Chair of the political science department, Professor Diane L. Duffin, presided over the ceremonies with a wit and dry humor that I enjoyed. She also went out of her way to make my stay truly enjoyable. My dear friend, Professor Peter Longo, introduced me with overly generous remarks. I was touched and flattered by the kindness shown by all.

Bill Kelly, Senior Producer at NET Television & Radio, recorded the event for posterity. (Only the gods know why.) Bill was a good sport and allowed me to incorporate him into my shtick.IMG_0491.kelly

My formal presentation asked whether Nebraska’s first federal judge, Elmer Scipio Dundy, was an activist judge for his ruling in the Standing Bear case. I have written about that issue before in these pages. Like most speeches given from a manuscript, my talk was dry but politely received.


After my formal presentation, there was a question and answer session. That was fun. There were great questions and a good deal of laughter. I really enjoyed the exchange, and was particularly impressed by the quality of the questions from the students and faculty.


The only “downside”to the whole affair was the presentation of a collection of old photographs of my college years. Those photographs reminded me of what a callow young man I was 40+ years ago.


In 1965, I came to Kearney State College from Ohio never once having seen the place before. I suspect that I am the only person ever admitted to the college on academic probation. Four years later, the world of the mind had been revealed to me. I owe my alma mater* more than I can ever repay. Thursday evening reminded me of my debt.


*Roughly translated from Latin, alma mater means “kind mother.” That was certainly true for me.

When Mickey Mantle proved that Judge Learned was not perfect

Many of you know that I am a great fan of baseball, John Q. Barrett, Professor of Law, St. John’s University, and Barrett’s Jackson List. So far as I am concerned, Professor Barrett has outdone himself with this offering dated April 6, 2015:

By the end of this evening, the Major League Baseball season will have opened in the United States and Canada for every team. Fans are smiling again…

Baseball was not, alas, one of Robert H. Jackson’s passions. When MLB tried in 1951 to persuade him to retire from the Supreme Court to become the Commissioner of Baseball, Jackson declined. He claimed not to know left field from right field and viewed an afternoon at the ballpark as wasted time. He preferred other seasonal, outdoor activities, including long walks, horseback rides, skiing, skating, gardening and fishing—activities where no one kept score. (Okay, sometimes Jackson’s fishing mates, including on a couple of occasions President Franklin D. Roosevelt, did keep precise score of who caught what.)

Baseball also seemed not to appeal to Judge Learned Hand. He served on the federal bench in New York City from Jackson’s youth and outlived him by almost seven years. Judge Hand was one of Jackson’s contacts in the law, an often kindred spirit and, to a degree, his friend.

In spring 1959, Judge Hand, then age 87 and a Senior Judge of the U.S. Court of Appeals for the Second Circuit, demonstrated publicly some baseball obliviousness. The occasion was the annual dinner meeting of the American Law Institute, held at the Mayflower Hotel in Washington, D.C.

Judge Hand made his baseball disclosure in a comment following Attorney General William P. Rogers’s remarks at the dinner. Rogers recounted that his son Doug, age 12, had recently answered two telephone calls to their home. One was from President Eisenhower. The other was from Vice President Nixon. William Rogers reported that he had explained afterward to Doug that although these calls did not mean much to him now, they would one day. Doug had listened politely to his father and promised to remember the calls. Then, with great excitement, he had asked, “Did you ever meet Mickey Mantle?” To that boy and many, many others, the centerfield of the New York Yankees was the leading national figure.

The ALI audience of course laughed. Then Rogers noticed his predecessor, former Attorney General Herbert Brownell, Jr., in the audience. Rogers described Brownell as “a Yankee fan” and waved to him, provoking more laughter and his wave back at Rogers. He then turned serious and commented, “Of course I realize that my story about Mantle right now is not timely.”

Judge Hand, seated at the head table, was being honored at this dinner for his fifty years of federal judicial service. During Rogers’s remarks and then his byplay with Brownell, Judge Hand was visibly perplexed. He whispered to his neighbor but appeared unsatisfied with the reply he received.

Then Judge Hand rose to speak. He thanked previous speakers for their many tributes to him. Then he volunteered that he did not know the “name” that Attorney General Rogers had mentioned.

The audience at first sat silent, unbelieving. Then gasps of astonished laughter broke out.

Judge Hand then addressed Rogers directly. “Mantle?,” he asked. “I don’t know what Mickey Mantle is or does. Is it a man or a thing?”


No one, except occasionally a pitcher, is perfect.

(Italics added by Kopf)


Another lame and cheesy excuse from Kopf

I maintain an e-mail account so folks can write to me about this blog. Since my recent illness (about which I whine constantly) I haven’t responded to a whole hell of a lot e-mails. That bothers me ’cause it was my practice to try to respond when folks took the time to send me an e-mail. Given the numbers now pending, I won’t ever catch up. So beginning this weekend, I will try once again to be responsive to my e-mail correspondents.  However, (trigger warning: more whining coming), if you sent me an e-mail between March 2 and April 15 don’t expect a response. Sorry!


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