Michael K. Ausbrook and the snipe swarm

One of things I love about writing this blog is that it provides me with the opportunity to highlight the good works of young (or younger) lawyers. This is one of those posts. It is about Michael K. Ausbrook of the Peoples Republic of Bloomington, Indiana.

Michael and I became acquainted after I wrote a snarky post about federal habeas corpus cases. It was entitled, The high cost of snipe hunts.

Photo credit: JJ Harrison (jjharrison89@facebook.com) per  Creative Commons Attribution 3.0 Unported license.

Photo credit: JJ Harrison (jjharrison89@facebook.com) per Creative Commons Attribution 3.0 Unported license.

I implied that you simply could not win those cases, and they were ultimately a waste of everyone’s time. Stated differently, finding a winner was next to impossible. That did not sit well with Michael. But let me digress for just a moment.

Micheal and I share a love for the classics and Loren Eiseley. I wrote about Michael, the classics and Loren Eiseley in a post entitled All the strange connections and the classics (“Don’t you see? In some strange way, and if only for a moment, the love of the classics brought Richard Arnold, Michael’s father, Michael and me (and perhaps even Robert Lincoln) together. Eiseley would not have been surprised.”).

From time to time, Michael and I correspond. Some times he sends me blog tips as here. Other times, we just shot the breeze. He is a wonderful writer with all the sensibilities of a gentleman who went to Exeter, taking Latin and Greek, and then majoring in the Classics at the University of Pennsylvania.

It was with this background that I was overjoyed to see that Michael’s work on federal habeas corpus cases resulted in his being honored as the 20th recipient of the annual Gideon Award given by the Indiana Public Defender Council, a branch of the Indiana judiciary. The Council has 1,100 members. The Council’s purpose is to provide a support center for lawyers who represent indigent criminal defendants.

Here’s the blurb about the award that Michael received:

The purpose of the Indiana Public Defender Council’s Gideon Award is to honor an individual who embodies the attributes of a zealous criminal defense lawyer for poor persons in Indiana and has distinguished him or herself in cases or his/her career. The Gideon Award is named in honor of the U.S. Supreme Court’s decision in Gideon v. Wainwright, 372 US 335 (1963), which first articulated the right to appointed counsel in felony cases.

Here is the YouTube video of the presentation and Michael’s thoughtful acceptance remarks:

Why did Michael receive this high honor?

Initially, you need to know his legal background. Michael graduated from the Indiana University School of Law, magna cum laude, Order of the Coif, in May of 1993. He is very smart. He is also an excellent writer and a researcher as his clerkship (1993-95) with the Honorable Frank Sullivan, Jr., Associate Justice of the Indiana Supreme Court evidences. It would be fair to conclude that Michael is among the best and the brightest lawyers Indiana has to offer.

With these extraordinary talents, Michael had an idea.

His idea was this: (1) if you taught yourself everything there was to learn about federal habeas corpus law, including the hideously complex creature that is AEDPA (Antiterrorism and Effective Death Penalty Act of 1996); (2) if you asked criminal defense lawyers from all over Indiana to refer indigent cases to you that might warrant federal habeas relief; (3) if you spent hours and hours determining whether a case could be a winner and you selectively took cases to federal court, under the federal habeas corpus statute, that had a reasonable shot of succeeding; (4) then you could really help indigent criminal defendants and make a living at the same time.

Guess what? Michael’s idea worked. He has won 4 of the 6 habeas cases he has taken to the 7th Circuit.  For context, understand and appreciate that federal habeas corpus petitioners have a national winning percentage of less than 1 percent. Michael’s success was mind-blowing. Along the way, he saved his clients 183 years of prison time.

For two of the many of cases brought by Michael, see Barnett v. Superintendent, 2015 U.S. Dist. LEXIS 70289 (N.D. Ind. June 1, 2015) (state conviction for burglary, battery, intimidation, and an adjudication that defendant was a habitual offender), granting writ of habeas corpus after summary reversal and remand by Barnett v. Wilson, 7th Cir. Case No. 13-2625 (7th Cir. Feb. 4, 2014)); Stitts v. Wilson, Southern District of Indiana Case No. 1:10-cv-765 (S.D. Ind. April 2, 2014) (state murder conviction) granting writ of habeas corpus after reversal and remand in Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013), reh’g and reh’g en banc denied, cert. denied 134 S. Ct. 1282 (2014)).

Now for a disclaimer. Michael was very concerned about my desire to write about his stunning successes. He absolutely flipped out when I insisted that he post the video of his award and his acceptance speech on YouTube. First, he is a truly humble person. Second, and most importantly, he did not want to be seen as a self-promoting huckster to the judges on the federal trial bench in Indiana or to the judges on the 7th Circuit.

I convinced him, after a bunch of e-mails, to allow me to write this post using the following argument: Michael, your idea is a good one and needs to be considered by others. The ability to practice a fascinating but obscure part of federal law while making enough to support yourself, if only modestly, and to do good at the same time is a rare opportunity. You would by a morbidly obese hog if you kept it to yourself. Besides I am frigging federal judge, you have to do what I say. He relented.

How to sum up? That’s hard. Michael exemplifies the very best of our profession.* More particularly, he has helped, along with others, to repair the near dead soul of a cynical and skeptical old federal trial judge. That’s miraculous.

Thank you Michael. Fiat justitia ruat caelum.


*Michael didn’t tell me, but his Dad was a very distinguished lawyer too in Washington, D.C.


12 responses

  1. Judge,

    Great post. With respect to the “connectedness” of things, or seeing how everything connects, you once posted a great ten dollar word that describes the inter connectedness of all things. What was that word? I thought I might find it on your previous post about Eisley, but it wasn’t there. Now it’s driving me nuts.

  2. Oh, a few years back there was a very interesting article about an inmate who had developed a habit of winning certs to SCOTUS on behalf of fellow inmates. Apparently he was very smart, and would screen the applications of his colleagues, choosing the right cases. I believe he was either released, or soon to be released from prison, and wanted to go on to law school. It was a terrific feel good story.

  3. I found the story, check it out. The man’s name is Shon Hopwood. He wrote a book “Law Man”. Apparently he did graduate law school after serving 11 years for five armed bank robberies. He is now an appellate court clerk for the DC Circuit. Only forty years old. You can find his story on Wikipedia. I know I read about this man a while ago. Was it this blog? If so, sorry about the redundancy. Maybe it was Howard Bashman’s How Appealing. Anyway,, Attorney Ausbrook’s story made me think of this. Taking on impossibly hard cases can be successful when carefully screened and intelligently handled.

  4. God bless you, you’ve saved a part of my sanity. I will write this down. It can only help me with my crossword puzzles. Are you sure you didn’t go to an ivy league school?

  5. No, I wasn’t. I finally figured out how to search the blog, and when I typed in Shon Hopwood, I saw that apparently Judge Kopf had sentenced him, and participated in a NPR interview. But I’m pretty sure I didn’t hear about this on this blog, I thought it was a Law Tribune article. (I only discovered its existence about eight months ago). Small world. All I can say is “apophenia.”

  6. Great post, Judge Kopf. Thanks for recognizing Michael and his hard and great work.

    One minor quibble: I know him personally, and I can state that he actually supports himself by other means and does these cases pro bono.

  7. Parag,

    Thank you for clarification. That makes his work even more amazing.

    All the best.


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