Net neutrality

I have been hearing a lot about “net neutrality” recently. I understand the federal court are getting involved.

John McEnroe, Jr. is a former World No. 1 professional tennis player often rated among the greatest tennis players of all time, especially for his touch on the volley. He was well-known for screaming at officials for calls at the net. He came to Lincoln recently to play a charity match. That got me thinking.

Do you know of any good reason the federal courts, through this “net neutrality” litigation, should now be overseeing tennis?

Just more federal judicial overreach if you ask me!



A “thank you” to Ann Fessenden


Ann Fessenden will soon retire as the Eighth Circuit Librarian and Secretary to the Historical Society for the United States Courts in the Eighth Circuit. That will be a great loss, especially to the Historical Society where Ann served as the glue that held the Society together.

Ann was extremely well-suited by education to serve our Circuit. From the University of Mississippi, she received her J.D., Magna Cum Laude in 1984. From the University of Oklahoma she received her Masters in Library Science in 1977. From the University of Oklahoma: she received her B.A. in Journalism in 1974.

Her service as our librarian brought national recognition. For example, she served as President of the American Association of Law Libraries in 2007 and as President of the Mid-America Association of Law Libraries in 1993-94.

Ann became Circuit librarian in 1984. By the time of her retirement Ann will have served nearly 31 years. In every meeting I had with Ann, and there were many in my capacity as Chairman of the Board of the Historical Society, Ann’s thoughtfulness, discretion and experience were evident. Her good counsel and immense institutional knowledge served all of us well.

As Ann leaves to pursue her interests in travel or to serve as principal bassoonist to a local symphony orchestra, she carries with her the deep appreciation of judges and judicial staff throughout the Eighth Circuit. Well played, Ann!



“Yellow shoe firms”

If you are a civil practitioner, particularly one with a mega-firm, you must read Adam Liptak’s article of April 11, in the New York Times. See Adam Liptak, The Case Against Gay Marriage: Top Law Firms Won’t Touch ItNew York Times.

The refusal of top law firms to represent those who sincerely oppose gay marriage is, in my view, a stinking stain on our profession. Instead of referring to these factories as “white shoe” firms, better to call them “yellow shoe” firms for their abject cowardice. Shame on them.



This and that

1. There are things I see and hear at sentencing that deaden my soul. Like the parents who made child pornography with their own little kids. The excellent panel lawyer who represented one of the defendants refused to accept my thanks and compliments for taking this horrific case. In chambers, he said, wryly, “Hell, judge, I thought it was a drug case.”

2. A young black man on supervised release on my docket was driving drunk with his pals. A white cop pulls them over. The driver–my kid on supervised release–tries to slide into the back seat. His buddy takes the driver’s seat. He intends to take the rap for his friend. The only problem is that the officer’s cam captures the stupid scheme. As the officer is arresting my supervised release offender, the kid becomes abusive. He brings up Ferguson, Missouri and utters the slogan “Hands up, don’t shot.” Other racial abuse follows. The officer doesn’t react. Later the kid admitted to me that he played the race card in an effort to provoke a fight with the cop and avoid state prosecution that would surely result in his return to federal prison.*

3. I finished my Federal Sentencing Reporter article. It argues that actuarial data relating to similar offenders such as race, gender and age that are empirically correlated with a risk to reoffend should be taken into account at sentencing. It is a detailed rebuttal to General Holder’s speech this summer. I’ll let you know when it comes out.

4. This Thursday, I will be honored to give the George Norris Lecture at the University of Nebraska a Kearney. I will be talking about “judicial activism” and asking whether Nebraska’s first federal judge, Elmer Scipio Dundy, was an “activist judge” when he granted a writ of habeas corpus to a band of Indians. For those of you who read this blog, you may remember I am speaking of the famous Standing Bear case that I have previously written about.

5. Cover_art_for_Firing_Line_program_featuring_William_f._BuckleyI remain tired and weak. Slept most of Friday and Saturday. UNK will kindly allow me to give my lecture from a nice soft chair if I tire at the podium. Sorta reminds me of William F. Buckley’s “Firing Line” where Buckley held forth while seated in a comfy chair. Except my presentation will lack the erudition of the intellectual giant who was Buckley. I do think, however, that I may use a pencil as a prop.



*In the study of rhetoric, there is something called the “moral equivalence fallacy.” See Odessa College, Fallacies of Argument. It suggests that serious moral wrongs are no different in kind than minor offenses. Therefore, and to be clear, the act of an offender provoking a police officer does not justify, for example, the officer shooting the suspect in the back.


Critical advice for young solo criminal defense lawyers

If you recently opened your own shop after graduating law school and you desire to make a name for yourself doing criminal defense work, I urge to read Scott’s post today at Simple Justice entitled David Aylor, The Other Shooter. It speaks to your dreams of getting the “big” case, thus marking your territory as a player.

I could add some things to Scott’s post–like a reporter is never your friend when he or she interviews you on the record for a story–but any contribution of mine would be of the marginal variety. Read Scott’s post, it is full of practical and ethical advice on taking a “big case” and speaking out publicly about your ticket to fame and lucre.


A plausible defense for Officer Slager?

Based upon a video gone viral, a white South Carolina police officer has been charged with shooting and killing a fleeing black suspect. The video that shows a police officer gunning down a fleeing suspect is both stunning, and, at least facially, damning. The suspect is shot in the back. Any claim the officer had a legitimate fear for his life seems like an excuse if you focus on the moment he pulled the trigger eight times.

Those of you with more experience than I have in these type of cases, could help inform me and others about an important but seeming overlooked question. Let me explain.

Take the account of what happened as reported in the New York Times as the facts. They are:

The shooting unfolded after Officer Slager stopped the driver of a Mercedes-Benz with a broken taillight, according to police reports. Mr. Scott ran away, and Officer Slager chased him into a grassy lot that abuts a muffler shop. He fired his Taser, an electronic stun gun, but it did not stop Mr. Scott, according to police reports.

Moments after the struggle, Officer Slager reported on his radio: “Shots fired and the subject is down. He took my Taser,” according to police reports.

But the video, which was taken by a bystander and provided to The New York Times by the Scott family’s lawyer, presents a different account. The video begins in the vacant lot, apparently moments after Officer Slager fired his Taser. Wires, which carry the electrical current from the stun gun, appear to be extending from Mr. Scott’s body as the two men tussle and Mr. Scott turns to run.

Something — it is not clear whether it is the stun gun — is either tossed or knocked to the ground behind the two men, and Officer Slager draws his gun, the video shows. When the officer fires, Mr. Scott appears to be 15 to 20 feet away and fleeing. He falls after the last of eight shots.

The officer then runs back toward where the initial scuffle occurred and picks something up off the ground. Moments later, he drops an object near Mr. Scott’s body, the video shows.

 MICHAEL S. SCHMIDT and MATT APUZZO, South Carolina Officer Is Charged With Murder in Black Man’s Death, New York Times (April 7, 2015),

Does Officer Slager have an arguable defense that he shot Mr. Scott out of concern for the public safety? Focus on the “fact” that Scott resisted arrest, had been shot once with a Taser, the Taser shot failed to subdue the subject, the subject tried to reach for the officer’s Taser, and began to run away. Doesn’t the following rule apply:  “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm . . .  to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1 (1985).

I would especially like to know whether this standard is subjective or objective. It would be great to see an actual criminal jury instruction where the shooting of a fleeing subject ostensibly to protect the public was used as a defense.

Educate me please!

All the best.


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