Evil by the numbers–I don’t want to write today, fuck you

I don’t want to write today. Fuck you.

Joan and I had a small tiff last evening. I went to bed without saying “good night.” I awoke this morning in pain. I had slept on my right side. The right ear covered with shingles hurt like a spook in the night had used a Bic® to set it ablaze. The medication had worn off, and the pain had returned. This morning, early, I swallowed, gulped really, the pills and prayed (ironic choice of words) for the pain to recede.

My consciousness last night and this morning filled with the slaughter in Charleston. The TV had brought me video of the inside of the sanctuary. How beautiful it was. But, there, in all that beauty with specters of black slaves floating in the air, a white man had sat for an hour with a small prayer group. I’m not sure what the prayer group was discussing, but I know all the group, save for the single white man, were gentle souls. Lambs almost. And then the evil white man slaughtered nine of them. I wonder if they screamed like lambs do when a butcher cuts their throats. The imagined scene in that beautiful place is pornographic. A snuff film plays endlessly in my mind.

17-emanuel-charleston.w529.h352.2x

I am consumed by the thought of evil. I don’t want to write today, but I have already said that. So, what? Fuck you. I don’t want to write because that causes me think of evil. I can’t get it out of my mind. I am mad at Joan, you, the reader, and the world. I hurt like a son-of-bitch. Call me Judge Job.

Evil is all around us. About 2 percent of any population is evil (psychopathic) with another 10 or 15 percent falling into the grey area. See, e.g., Roderick Tweedy, The God of the Left Hemisphere: Blake, Bolte, Taylor and the Myth of Creation, pp. 158-159  Karnac Books (January 4, 2013) (citations omitted). That means evil is around us in huge numbers. By the way, I equate “evil” with the word “psychopath”–a violent person with no empathy. See, e.g.William HirsteinWhat Is a Psychopath?, Psychology Today (January 30, 2013).

Take the two percent figure and multiply it by America’s population of 320 million. The Google calculator will spit out the number 64,000 6.4 million. If you consider the “grey area” and reduce the low number of 10 percent to 5 percent just to be safe and multiply that against 320 million the Google calculator will spit out 160,000 16 million. In short, the number of evil, psychopathic, people in our country is staggering.

I don’t want to write today. Fuck you.

RGK

A note to a few special snowflakes on the pro gay marriage side: Grow the fuck up!

I used to have a note on my bench. I wrote it in my childish handwriting, It said something like: “Rich, shut the fuck up!” I removed the note when I realized I would never follow the injunction.

That brings me to the oral argument in the gay marriage case. Some guy, who probably speaks to himself in tongues most of the time, disrupted the arguments and got his ass hauled out of the courtroom. Before his exit, the guy screamed, “If you support gay marriage, you will burn in hell!* It’s an abomination!”

Chief Justice John Roberts took a brief timeout before calling on the next attorney. In turn, Justice Scalia quipped, “’It was rather refreshing, actually,’ he said. His tone sounded jovial, and laughter could be heard in the courtroom.'” Bob Egelko, Scalia’s quip about gay-marriage protester stirs bias debateSan Francisco Chronicle (May 2, 2015).

Now a few special snowflakes supporting gay marriage have asserted that Scalia’s remark was biased and improper. Id. For example, a law professor on legal ethics was upset and solemnly proclaimed:

It was “a gratuitous comment that could be heard to legitimize an offensive outburst,” said Deborah Rhode, a Stanford law professor who teaches legal ethics. While judges often reveal their viewpoints when questioning lawyers, she said, a remark like Scalia’s tends to “diminish popular perceptions of the justices as disinterested neutral observers.”

Id.

On the other hand, a non-snowflake supporter of gay marriage gave this adult response to Scalia’s critics:

 One gay-rights advocate in a forgiving mode is Evan Wolfson, founder and president of Freedom to Marry and an early organizer for equal-marriage rights. Wolfson, who was in the courtroom Tuesday, said he’s willing to give Scalia “the benefit of the doubt, that it was a joke, in the moment, about the tension in the room.”

More important, he said, was the message that the protest itself should send to the court.

“I think this was a real vivid piece of evidence about why gay people should not have to put their rights up to a vote,” Wolfson said. “Not that everyone’s a hater, but that there is hatred out there.”

Id.

For those few special snowflakes in the gay marriage movement who believe they are unique, that we should watch our words around them to avoid triggering unpleasant feelings, who love being victims and who see the bogey man at every turn, please, please “grow the fuck up!” At least to me, you have become tiresome.

299348775170772191_1363822843

RGK

*I came to grips long ago with the certainty that I would burn in hell. I plan on taking an air conditioner, a straw hat and a Hawaiian shirt, a plush recliner and a boatload of margaritas.

H/T How Appealing.

A disturbing anecdote about how some in the legal academy treated Professor Chris Fairman when he wrote his serious law review article entitled “Fuck”

A reader of my recent posts could not be faulted if he or she concluded that I have it in for all law professors. That is not true. But if you read this long post, you will find a disturbing anecdote that should give the reader pause about the health of law teaching.

I have enormous respect for those who devote the themselves to teaching the law. If I have a complaint, it is that many law teachers ignore the legal profession and the judiciary. But for those who devote their scholarship to areas that make a difference to the legal profession and the judiciary, the legal academy provides a critical service. Let me mention a few professors for whom my respect is particularly high.

Nancy Gertner retired from the federal district court bench and now teaches at Harvard. Her insights are penetrating and deserve the attention of federal judges and practitioners if only because she is brilliant, has “been there and done that” and pulls no punches when it comes to legal realism and the federal courts.

My law school–the University of Nebraska College of Law–is the proud first home of Roscoe Pound and sports numerous professors whose committment to the practice is evident and very much in the spirit of Pound. Dean Susan Poser‘s scholarship and teaching regarding legal ethics provides one good example. Kevin Ruser, the M.S. Hevelone Professor of Law at the College, and Steve Schmidt (who I had the pleasure of teaching), Associate Professor of Law and Courtesy Associate Professor of Forensic Science, are responsible for the very high quality clinical side of legal education at the College.

A former DOJ trial lawyer, the legendary Professor Mike Fenner at the Creighton Law School has devoted his decades of acclaimed teaching and penetrating scholarship, on evidence and other federal matters, not only to his law students but to lawyers and federal judges alike. Same, same for Pat Borchers. He is a former law clerk to Justice Kennedy when the Justice was on the Ninth Circuit and, after that, Pat was a litigator of important cases in California. Pat, the former Dean of Creighton Law School, is now Professor of law and head of the Werner Institute on conflict resolution at Creighton. Among other things, Pat brings his subject matter expertise on the federal courts to that important new endeavor, an endeavor that is already having a huge impact on federal practice and the federal courts.

But the “superstar” when it comes to helping the federal bar and federal judges is Professor Doug Berman at Ohio State’s Michael E. Moritz College of Law. His blog entitled Sentencing Law and Policy has been the most important contribution a law professor has made to the federal courts in my lifetime. He singlehandedly took a new medium and turned it into an interactive teaching and information tool of incalculable value to solving the real world problems facing federal practitioners and federal judges.

I want to make clear that the reader should not assume that any of the professors cited above agree with anything I have written in this blog. I have cited these scholars as examples of professors I highly respect. They may think I am a jerk and an idiot. That said, let me next turn to turn to the precise point of the post.

Until now, I have believed that law school professors thought of themselves as a community of scholars engaged in the joint enterprise of seeking the truth. I assumed that there was a warm collegiality that fostered investigation into legal subjects that the rest of the world might ignore or find too disturbing to contemplate. I earnestly believed that among this community of scholars that there were no taboos. Intellectual honesty was the only requirement for the law professor and scholar. If the following anecdote is representative (and I fear that it is), my assumptions were dead wrong.

Like Doug Berman, Christopher M. Fairman teaches at Ohio State. He is a full professor–the Alumni Society Designated Professor of Law–and the Associate Dean for Faculty. He graduated Phi Beta Kappa from the University of Texas. After nine years as a high school history teacher in the public schools in Texas, he received his J.D., in 1994, with Honors, including Order of the Coif, from the University of Texas School of Law. Professor Fairman teaches Civil Procedure I and Legal Writing and Analyses to 1L students and Civil Procedure II, Professional Responsibility, and a seminar on ADR Ethics available to second- and third-year students.

Fairman knows his way around the state and federal courtrooms. He was law clerk to the Honorable J. Woodfin Jones, Texas Court of Appeals for the Third District, Austin, Texas (1994-95).  He was a law clerk to the Honorable Fortunato P. Benavides, United States Court of Appeals for the Fifth Circuit, Austin, Texas (1995-96). He was a litigation Associate at Weil, Gotshal & Manges LLP, Dallas, Texas (1996-2000).

According to his faculty page, “Professor Fairman’s scholarly interests can be easily summed up: Words matter.” Professor Fairman first book is entitled Fuck: Word Taboo and Protecting our First Amendment Liberties (Sourcebooks 2009). The book builds on his scholarship in taboo language found in his highly popular law review article, “Fuck,” 28 Cardozo Law Review 1171 (2007).*

Christopher M. Fairman Associate Dean for Faculty; Alumni Society Designated Professor of Law

Christopher M. Fairman
Alumni Society Designated Professor of Law and Associate Dean for Faculty

The reader will recall that I favorably cited Fairman’s law review article in an earlier post. In my view, that law review article was written by an accomplished legal scholar and former practitioner with a proper sense of the real world. After carefully analysing the historical, linguistic, etymological, legal, and other sources, Fairman came to believe that the word “has no intrinsic meaning at all . . . .” I found the ending remarks of Professor Fairman’s article particularly important:

Regardless of its source, when taboo becomes institutionalized through law, the effects of taboo are also institutionalized. If we want to diminish the taboo effect, the solution is not silence. Nor should offensive language be punished. We must recognize that words like fuck have a legitimate place in our daily life. Scholars must take responsibility for eliminating ignorance about the psychological aspects of offensive speech and work to eliminate dualistic views of good words and bad words. Taboo language should be included in dictionaries, freely spoken and written in our schools and colleges, printed in our newspapers and magazines, and broadcast on radio and television. Fuck must be set free.

Having obtained tenure before the article was published, Fairman was proposed for elevation to full professor after the article came out. In that process, Ohio State sends out requests to law professors at other universities inquiring about their views of the candidate. Fairman ran into a buzz saw.

Although his article was the most downloaded article that year on the Social Science Research Network, one silly reviewer said the law review article wasn’t even competent scholarship, much less of high quality. Another law professor known for producing empirical information and analysis regarding the penetration of legal scholarship excluded Chris’s article from the list and analysis even though he was using the Social Science Research Network and the article was the most downloaded from SSRN. The reason? Because it was  “provocatively titled.” Professor Fairman wrote a response to that slight which, in my opinion, revealed beyond doubt that the exclusion was, in my words, stupid and, perhaps, the product of a rank and mean elitism.** Despite all of this, Fairman was promoted. That says positive things about Ohio State.

So, why I have I written this post? Believe it or not, I have written this post because I care deeply about the legal academy. Federal practitioners and judges need law professors to help us. If Professor Fairman’s experience is any indication, a fair number of law professors ought to stop eating their young. If they continue to put obstacles in the path of other young scholars like Fairman, the law schools will become completely populated by professors known by practitioners and the judiciary for their utter irrelevance. That would be disaster.

Update:  Please go and read Scott Greenfield’s piece entitled Teaching Law, for Real

RGK

*I read the article when it first came out. I was particularly interested in the article because of an experience I had with a big law firm in Ohio in the summer of 1971 when I worked as a “summer associate” while also avoiding the draft. I was doing research for one of the partners who, acting for the ACLU, was defending a kid charged with some sort of crime for wearing a tee-shirt in public that read, “Fuck the draft.” I wish I would have had that article in 1971. 

**Professor Fairman rightly asked whether Randall L. Kennedy’s “Nigger!” as a Problem in the Law, 2001 U. Ill. L. Rev 935 (2001) would have been excluded.

“Merry Fucking Christmas”

I hate Christmas. I really do. I will have a very serious post on why this is so on December 26. But, for now, consider the following:

  • Yesterday, the basement flooded.
  • Last night the clothes dryer conked out.
  • Judge Ross died this week.
  • Thanks to the blood clots from Sioux City, my balloon foot hurts and I am now wearing black slippers with velcro ’cause their the only kind of footwear that works when your foot looks likes something from the The Island of Doctor Moreau. See below.

photo

  • My doc, educated at the Grace L. Ferguson Storm Door and Medical School, says, “not to worry” and than grins in his terrifyingly vacant way.
  • Yesterday, Petra, our oldest grandchild ended up at a Canadian hospital for her Christmas present. Diagnoses: parasites from China. See below. Thank you baby Jesus!

Petra

With the foregoing in mind, I offer you Denis Leary and Merry Fucking Christmas.  May it bring the true meaning of this blessed holiday to you and yours!

RGK

What I learned (and am still learning) from a “Fuck You” motion

Several years ago, the Clerk’s office received a scribbled piece of paper from a prisoner that was in response to an adverse ruling I had made.  The Clerk’s office appropriately treated it as a motion.  The motion concluded with the words:  “Fuck you!”*   In response to the motion, I drafted an order stating that “the ‘Fuck You’ motion is denied with a hearty ‘you too.'”

I sent the order for filing, but my “taste and decorum committee” strongly recommended that I reconsider.  They asked me to put myself in the position of the prisoner and then ask myself how the prisoner would feel upon receiving my sarcastic order.  I pulled the order.

On another occasion, I was in the process of sentencing a young Native American for an offense that had taken place on the reservation.  (Parenthetically, if you want to see what its like to live in hell, spend time in “Indian Country.”)  I had informed the lawyers that I was considering an upward departure or variance.  My upward departure/variance suggestion was met with strong opposition from zealous defense counsel as well as the the fair-minded prosecutor.   While considering the motion, and during a heated exchange with counsel, I harshly and sardonically described the young man and his conduct.

When given the opportunity to speak prior to sentencing, the kid seemed nearly in tears.  He was not scared of more prison time, he was angry at me for describing him in ways he thought were unfair.  After listening to the boy, I decided to follow the recommendations of the lawyers and I gave what amounted to a “time served” sentence.  But, the young man’s injured reaction to my words hangs with me still.

Now, why do I write this post?  It is true that the role of the trial judge frequently calls for the use of unvarnished language, and humor can be an excellent way of punctuating the point.  However, there are human beings on the receiving end of those words.  In lots of cases, those human beings confront lives that few of us on the federal bench can imagine and, when they appear before us, they are powerless.

Lesson learned (and still learning):  Control your inner smart ass.  Sometimes, saying nothing is quite sufficient.

RGK

*For more on this word and its legal significance, see Christopher M. Fairman, Fuck, 28 Cardozo L. Rev. 1711 (2007).

Our little old house is worth millions (to us)

We bought the house of our dreams in 1998. It is an old style range house. It was built in 1969. We paid $269,000 for it. It sits on a busy street. The tax guy says it is now worth $330,000. He wants to know if I want to appeal the valuation. The valuation is terribly wrong, but I won’t appeal. That’s because our little old house is worth millions to us.

Photo credit: The damn tax assessor. By the way, our address is 3910 South 27th Street, Lincoln, NE 68502.  For all those freaks who wrote that they wanted me dead after my partial-birth abortion decisions or my flag burning decision, if you show up I plan a warm welcome. I have a 50 year old .22 rifle that fires high velocity Remmington 22 shorts. Out of ten shots this year at the bastard bunnies, I got one. So, be  wary. By the way, fuck the NRA.

Photo credit: The damn tax assessor. Our address is 3910 South 27th Street, Lincoln, NE 68502. For all those freaks who wrote that they planned to kill me after my partial-birth abortion decisions or my flag burning decision, if you show up, I plan a warm welcome. I have a 50-year-old .22 rifle that fires high velocity Remington 22 shorts. Out of ten shots this year at the bastard bunnies, I got one. So, freaks be wary. By the way, fuck the NRA. What a bunch of assholes. 

 

Our backyard, oh dear, the backyard.

Joan labors daily with her extensive flower garden. I mean labors. She doesn’t like weed killing products. She weeds the very large garden by sitting in the weeds in her old sweat pants. The chiggers bite her. Those bites hurt and itch throughout the summer. She says weeding is relaxing. She doesn’t mind the the chiggers. The old woman can outwork most everyone when it comes to tending gardens. Her Catholic upbringing, so uncommented upon otherwise, is evident in her gardening. Hard work and the pain of the chigger is a gift from God. I don’t understand.

Since I have been sick we have had a lawn guy take care of the grass. My little John Deere tractor that Scott Greenfield mocks, ’cause he has a that big John Deere Gator, sits unused in the three car garage. The lawn guy retired after serving as a fire fighter. He’s my age. He is lean and brown and strong and grizzled. He is profane. I like him a lot. He uses the same swear words that I do. I suppose it is a generational thing. His son, who will follow him in the business, is huge. He smiles as he toils in the 97 degree heat, giving off perspiration in wild streams. He seems content to perform the simple task of mowing. I envy him, and I am grateful for him too.

Our backyard, oh dear, the backyard.

IMG_1575

IMG_1552

IMG_1549

IMG_1583 (1)

IMG_1570

 

IMG_1575

 

Some things are more important than others.

RGK

To Howard, Doug and Scott: Thank you for the wonderful gifts!

As many folks familiar with this blog know, I am not a believer and Christmas is not my favorite time of the year. See, for example, Merry Fucking Christmas from last year.

The foregoing said, I have opened Christmas presents each and every day this year. They came from three bloggers.* So, since my mother taught me always to send “thank you” notes, despite the fact that she was drunk on her ass virtually all the time, I take this Christmas day to thank the three fellows who gave me these gifts.

FHxHlVe8_400x400

 

First, thanks to Howard Bashman and How Appealing. Howard what you do is amazing. You are a critical resource to the legal profession. I particularly like the fact that you almost never write snarky stuff, except when it comes to a certain state Supreme Court. That I love!

 

 

berman_douglas1

 

Second, thanks to Doug Berman and Sentencing Law & Policy. Doug, like the great teacher that you are, you inspired me to write this blog and taught me to think more deeply (insert punch line) about sentencing. Besides, I like bald guys who are Bob Dylan fans. Now, send me a picture of you smoking a joint!

 

 

SHG_Bloomberg2_400x400

 

Third, thanks to Scott Greenfield and Simple Justice. Scott, you scare the shit out of me. But you have also made me less stupid in the process. By the way, this is not a belly rub–think of it as a massage from a pretty showgirl.

 

 

Howard, Doug, and Scott, I truly want thank you. All the best.

RGK

*Honestly, I just learned that “blawg” means a blog about law and “blawger” means one who blogs about law.  I am 68, don’t laugh at me. It is a miracle that I can still type.

 

Vignettes from a former narc turned defense investigator

I can’t prove that the following unedited series of vignettes are true. All I can tell you is that I believe the writer who appears anonymously in this blog but is known to me. But then again my ability to judge credibility is suspect. So you be the judge. By the way, some of the references and language in the following account are dated. That is because the events described took place some years ago. The writer is now “retired,” although you and I would not describe it that way. I am privileged to share with you the following:

Note to the reader: All of the events described are true, however none of them took place in Colorado. My apologies to the narcotics squad of Denver. I’m sure you guys are great. My physical disability needs to remain undescribed, as it could lead to the discovery of my identity.

In my public service career, I was severely injured as a firefighter. I then became a paramedic, followed by a police officer specializing in narcotics enforcement. This piece details my move from law enforcement to:

Defense

Contrary to how most cops think, I always respected good defense attorneys. If you were smart about it, you’d realize it was just a game…good guys and bad guys with justice found somewhere in between. I wound my cases tight enough so that most of the crooks pled out, but I did spend some time in court and enjoyed it. On the witness stand, I always addressed my answers to the juries, not to the attorneys questioning me.

Near Denver, Colorado, a Mexican named Ernesto Almaguer, who I had done for coke and heroin, hired an expensive defense attorney. This lawyer looked the part and would be sympathetic to the jury. He wore his gray hair slightly long, stylishly cut without looking too much like a TV preacher. His gray suit bespoke dignity and good grooming. Doubtless it was expensive but not flauntingly so. In manner, belying the gentleman he looked, he was a rodeo bull, a killer out of the chute. After questioning my training and qualifications, he jumped right in.

“Officer Stevens, is lying a part of your work?”
“Yes, it is. I need to deceive the suspects into thinking I’m like one of them in order for them to feel comfortable selling me drugs, which is what they do.” He didn’t like me going beyond a simple “yes” but didn’t move to have it stricken.
“Don’t you find yourself lying all the time?”
“I never lie in court.”

Trying another tack: “Officer Stevens, is it common for narcotics agents to do the drugs they purchase?”
“No, it is not.”
“Did you not, Officer Stevens, and bearing in mind your previous testimony about not lying in court, snort cocaine in front of my client?”
“No, I did not.”

I never used “sir” as many cops do with a defense attorney. I never wanted to give a jury the idea that I held the defense team in high esteem. Nor did I ever show contempt for them.

“Officer Stevens, my client is prepared to bring in witnesses who will testify to seeing you take drugs in his presence.”
“I feigned doing the drugs in front of your client and his companions in order to put them at ease with me.”

The attorney looked he had just been given a new Rolex. He moved closer to me, smiling. He was about to commit the cardinal sin in court: don’t ask a question unless you know the answer. Ask the question. Ask the question!
“Officer Stevens, would you show the jury just how you feigned doing drugs in front of my client?” He looked over at the jury, smiling, waiting for my answer.
“I’d be happy to but I’ll need a few things.” The judge granted noon recess while I wrote out a brief list for the attorney while the worried young prosecutor looked on.

“Are you sure about this?” the DA asked quietly as the jury members filed out. “No sweat, I developed this technique and have taught it at narc seminars,” I answered.

In the narcotics training classes I had attended, most of the information was dated and supplied by pedantic guys who hadn’t been on the street in a long time. Or, the classes were given by the DEA, in which case the techniques taught were rigid, mostly ineffective and even counter- productive. Good narcs need to be flexible, able to adapt to changing circumstances. That’s not the government way.

While working in the southern part of Colorado, I’d developed enough good information on large scale cocaine dealing that the DEA became interested in my work. They sent out a brand new agent, just out of training at Quantico. His name was James and through no fault of his own, he was a Texan. That, though, together with his recent training, was a miserable combination. It’s no secret among law enforcement officers that the DEA, and slightly less so the FBI, look down on the “locals” and are famous for taking over good cases. I was determined not to let that happen.

I was working on a young couple, Steve and Marcie, who had risen in a mercurial fashion from stealing hub caps to dealing major quantities of cocaine. Although not sophisticated, they weren’t stupid and knew everyone on the street. For several years, the local PD hadn’t been able to touch them.

Funds for local law enforcement are always scarce but the cops adapt by being creative and resourceful. When the day was set for me to introduce James to Steve and Marcie, a pre-meet conference was scheduled with the DEA at the local county Sheriff’s office narcotics unit. The unit was located in a small, two room office with a few messy desks crammed in. I was there with my sometimes partner Big Boy, all 350 pounds of him. A couple of the other narcs were interested in the show and hung around. By the time all the DEA Special Agents arrived, there was scarcely elbow room. They had come in three cars and looked, with the exception of James, like they walked off the set of Miami Vice, all pastels and jewelry. James was his own special case, arriving in a sharkskin suit accented by a pair of lizard skin cowboy boots. Christ, when did the Mafia take over Houston? It was announced that he was to be the “prime” operative and that my role was simply to introduce him as my friend “Jimmy” and then get out of the way. The other agents would be cover and surveillance. We street narcs looked around and tried to smile at each other only with our eyes. Without saying so, we were all pretty sure that the city of Stewartsville was in for a treat.

“Guys,” I started, “I’m not sure you understand the climate in Stewartsville. It’s a small town and our suspects know all the other bad guys. None of them look like you. This is gonna to spook ‘em.”
“Don’t worry,” one assured me condescendingly. “This is our formula and it works.” Okay, it’s your show.

I wanted James to meet Steve and Marcie at a small taqueria I knew, figuring I could score a good Mexican lunch at the same time. Introducing them to someone new was going to be tough under any circumstance, but at least the atmosphere there was casual and it had a slim chance of working. But no, that wasn’t the government way. They wanted to meet at the fanciest restaurant in town so that Jimmy could impress them.

“Guys,” I tried again , “This really is going to spook ‘em. It’s not gonna work. They’re not the fancy place kind.” I was told that the agents had already visited the restaurant and that it was the only place where they could adequately protect James.

“Guys, nothing’s going to happen today of any substance. Steve’s not going to sell to James, especially on the first day they meet. The danger’s minimal. I’ll watch out for him.” But who, I wondered, would watch out for me if the crooks fingered James and his well dressed cadre? I’d be guilty by association. The DEA guys would all go home to Denver and I’d be on my own.

My objections were overridden and we drove, conspicuously I thought, to Stewartsville. How many brand new Camaros, I wondered, would it take to tip our hand? Three would be my guess.

We hung in the parking lot while the DEA backup squad crowded into the restaurant. I was chagrined and embarrassed. James told me how he wanted the caper to go down. “Listen,” he said, “you just introduce me. I’ll do the rest. I’m going to tell him I won’t buy anything less than a kilo to start.” I rolled my eyes. A sharply dressed female agent joined us as James’ girlfriend and we went it. This is just getting better and better.

There’s something in the dna of drug dealers that renders them incapable of being punctual. Maybe they’re high, possibly they’re lazy and probably they don’t really care. James was getting nervous when Steve and Marcie hadn’t shown after 30 minutes. “Don’t worry,” I offered, “They’ll show.”

They did show but not together. Steve sent Marcie in first to check things out. I got up and met her at the door. “This is pretty weird,” she said. “We hardly know you and now you want us to meet someone else and here” she croaked out, looking at the chandeliers and fancy table settings.

“Don’t worry, this guy’s ok. He just has his own way” I explained, trying to smooth the path for the giant mudslide I knew was to come. She left the restaurant and returned several minutes later with Steve.

There are times in our lives when we know we’re surrounded by fools and there’s no way out. There are times when we see people who are oblivious to the situation they’re in and are incapable of reading the people they’re in that situation with. Such was the case with James that afternoon. He became a boisterous, obnoxious Texan. He complained loudly about the service and then the food. He tried to pal up with Steve who looked around, spying people who he knew were out of place even in a restaurant he was unfamiliar with. Steve was having nothing to do with it. He stared at me, someone he was nervous about to begin with, with a suspicious look that asked me “Who the fuck is this guy and why am I here? And while I’m asking, who the fuck are you?”

I was embarrassed, even in the make believe world of undercover narcotics work. I considered trying to rescue Jimmy, but he was floating away too fast for my life ring to reach him. Fuck him. I’ll just sit here, eat this expensive food and watch him self destruct.

James wanted to talk drugs and lots of them. Steve and Marcie were silent. The female agent tried to make girl talk with Marcie in a kind of Macy’s-meets-K Mart conversation. I tried wishing myself into another dimension. As Steve and Marcie got up to leave, the surveillance agents hurriedly called for their checks and scrambled, not very nonchalantly, for their cars. I met up with Big Boy who had watched the circus parade from across the street at an Arby’s. “Sharp guys, those DEA types,” was all he said, wiping the mustard from his abundant mustache. James reported to me that evening that Steve and Marcie had been followed to their home. “Wow,” I replied, “That’s some hot intel. Your guys are real aces.”

While it didn’t go over too well with the feds, the local coppers liked my independent attitude and defense of home turf. Because of the flexibility and creativity I had been showing, I was now being asked to give classes to cops about my methods of operation. One was the feigning of coke use. It was absolutely never to be a common or preferred technique, I taught, since things could go wrong. But in a tight spot where there was no alternative and things felt right, especially for a deep cover officer, it could be used to establish credibility and enhance the operative’s safety.

Court was reconvened after lunch. The defense attorney, sure of his impending victory, took on a less aggressive manner toward me. Maybe he thought that after slaughtering me on the stand, he wouldn’t want the jury to side with me out of pity. He approached the witness stand and pulled the items I had requested from a paper bag; razor blade, hand held mirror, short drinking straw and a small amount of table salt. I smiled to myself thinking he probably had all but the salt at the ready in his office desk.

“Okay,” I addressed the jury members seated to my left and ignoring the attorney, “Here’s how this goes. I need to set up the situation just right. I’m in control of this deal. If it’s in a car, and space is tight and the bad guy’s visibility of me is too good, I tell him I’m paranoid and he needs to keep a watch out for cops. Remember, in this world, no one trusts the other guy. Let’s do this like we’re in a car.”

I held the mirror in my right hand and chopped the salt with the blade as if it was coke, scanning the courtroom looking for cops. I set the blade down. I now directed my full attention to the jury member closest to me, engaging his eyes with mine. I held the mirror a little below the level of my chin, straw held between my left index finger and thumb. I instructed him to watch for cops and motioned with my head to his left. A fully willing accomplice now, the juror turned that way. As he did, I bent over, brought the mirror closer to my face and licked the tip of the small finger of my left hand as I looked away from the juror. I snorted about ½ inch away from the line of salt I had made, scraping it up onto my wetted finger. I straightened up and quickly showed the jurors the salt on my finger before it dissolved.

The DA looked at me like a proud father whose adored son who has just hit his first home run. The defense attorney looked like he’d been thrown naked into a patch of blackberry bushes. He managed to throw some humor out as he was falling off the cliff. “Officer Stevens, is it true that you have an obvious physical disability that might make people like my client believe you are not a police officer?”
“Yes, it is.”
“Don’t you think that’s a little unfair?”
Guilty as charged.

I’ve found that the better the cops, the less antipathy there is toward the defense. The sloppier the cops, the angrier they are to be called into court or for defense interviews.

I referred to what I did in leaving police work to go to work for the defense as jumping the fence. The few real friends I had in police work understood that I had lived and worked alone almost three years under heavy stress and that it was okay for me to leave. They knew that we would be engaged in the same game, just on opposite, respectful sides of the field. The others shunned me and would do so even more when I started to pick apart the cases they had made. The precept that everyone is entitled to a defense wasn’t something they took seriously. An even harder concept for some of them to grasp was that a suspected bad guy should get arrested for what he was actually doing, not for what the cops knew or imagined he had done in the past.

The Denver PD narcotics detectives were the most antagonistic toward me. The several cases I worked for attorney John Ziegler cemented my relationship with them. One was a search warrant served for drugs after a long and complicated vehicle surveillance. An initial scan of the police reports, especially those detailing the surveillance, made it look bad for our guy.

I took a real luxury in reading the reports in a big case. For one thing, I could bill for all my time. But mostly, I loved getting inside the heads of the cops. How long had they been after this guy? Did they stay awake during the entire caper? Do they bear a special grudge against the crook?

I always favored the cops, not the crooks. I liked nothing more after reading reports and doing extensive interviews with the cops and witnesses than to go to the attorney and tell him, “Your guy is hosed. Better cut the best deal you can right away.” I liked it less when I found a cop who was lying and I proved it. What I loved in this antagonistic, cat and mouse game was the challenge. How good were they? How good was I?

In the surveillance part of the reports, after several readings, I picked up on a subtle change in the details of the reporting narc’s writing. He had been specific in his descriptions of what was happening up to a certain point. Then, the details became vague over the time it took the suspect to transit a couple of streets. Then again, the details became more precise. Shit, they lost this guy for a couple of blocks!

The cop was lying, but doing so in such a way that he felt ok about it. It was close to the truth. I scheduled the interview and met him at his headquarters. He came in to the room with an air of authority and superiority. He made it clear that I was inferior, an unworthy foe. That I was an ex-cop made it all the worse.

I bored him for a while with questions about his background and his training. His guard was down when I asked him how long he’d been working on my client. Quite some time and it was clear he didn’t like the guy. He sure didn’t like me and that suited me fine. He wasn’t cautious with his answers, letting his antipathy toward my client and me get away from him. I asked him about the surveillance in a ho-hum manner, as if I was going through the pre-determined steps just to get paid. I almost had him dozing when I asked him about the lack of details covering the time it took the suspect to transit those few streets, but he awoke quickly and was on high alert. He stumbled over his answer. “Listen,” I said, “You had this guy cold, you lost him and then you picked him up again.” I put my legal pad in my briefcase. “Then you got a search warrant based on phony continual surveillance.”
“Listen yourself,” he replied. “This guy’s an asshole and he’s been selling drugs a long time.”
“What you mean is,” I countered, “that you lost him but you know he’s a crook. You’re sure he’s sold drugs in the past and you want him convicted for that. But you don’t have him this time and that’s how the game’s played.”

He stormed out of the interview. The DA dropped the charges a short time later. From this time on, the wall was up with Denver PD and the narcs insisted on having a DA present for any further interviews with me.

I had an odd encounter with a State Trooper in another drug case that looked flimsy to me. He had been working a drug detail for a couple of years and was anxious to beat some kind of record for drug arrests. He made me aware of this when I asked him about his undercover experience and the number of buys and cases he’d made. “Almost 300 cases and that’s the record. Some guy worked all over the state with different agencies and made all those cases. This one will tie me with him.” Christ, he’s talking about ME!

I was both flattered and angry. This trooper, who looked like a youth pastor at a holy roller church, was making lousy cases out of a sense of competition. I grilled him hard for the rest of the interview and knew his case couldn’t hold water. As I got up to leave, shaking his hand, I said “I’m the guy you’re competing with. You won’t tie me with this dog of a case. You gotta sew ‘em up tighter.” Case dismissed.

Accident investigation is a specialty, one in which I had no expertise. So when I got a call for a DUI case with a serious accident involved, I was surprised. Walter Percer’s client was driving at night, northbound on I-25 when he hit another car. A couple of the occupants in the other car were seriously injured. Walt’s client, the drunk, was uninjured. Because of the nature of the injuries and the DUI, he was facing felony charges. Percer was hoping to plea his guy out to a lesser charge.

He gave me the police reports and I spent a lot of time on them, much more than I could bill for. They were really confusing. I attributed my confusion to my lack of knowledge on the subject of accident investigation. Well, I’ll do some interviews and maybe get enough info to help Walter. And, I’ll get paid. I made an appointment to view the impounded cars and to interview the Trooper involved.

While looking over the cars with two troopers in attendance, I tried to act like I knew what I was doing. I think they saw through the ruse. I then sat down with them for interviews. “But,” I said, “neither of you two were at the scene of the accident.”
“No,” one replied, “We took the case over because we’re detectives. You can speak with us.”
“Great,” I replied. “I will, but I need to interview the trooper who was at the scene.”
They looked at each other with resignation. “That officer is dead.”

I told them how sorry I was and asked about the circumstances of his death. He had died of a ruptured brain aneurism shortly after this accident. The light bulb clicked on. It wasn’t that I couldn’t understand the on-scene reports because I lacked the expertise in accident investigation. It was that this poor cop had been about to blow a tire in his brain and by the time he’d sat down to write the reports, he was greatly compromised. This was one case I didn’t feel great about helping to win.

Pride in my work has always been important to me, whether as a cop, private investigator or paramedic. That pride was never more seriously tested than when I did defense work on child sexual abuse cases. The work I’ve done has exposed me to some of the rawest things a person can imagine. I’m sure I haven’t seen the worst, but I’ve gotten clear images of what people can do not only to themselves but to others.

Defense attorneys have special kinds of stomachs to keep their food down when sitting with some of their clients. Self serving and guilt expiating statements aside, everyone is entitled to a defense and I admire the attorneys who do that work. But still, some crooks should just be shot and save the courts time and money. I’ve met a lot of them. The one characteristic they all share is…lists. Lists of kids they haven’t raped. (My silent response: so there are some you haven’t gotten to?) Lists of people who they’ve helped along in life. (My silent response: You’ve paid these people or have given them presents so you could rape their kids) Lists of people who will vouch for them (My silent response: losers who will say anything you can influence or pay them to say.)

This being said, there was a movement in prosecutor’s offices during the time I did this work toward believing anything a child or adult female victim said. It was well before the term “political correctness” was coined, but it was there just off stage. This was when a wife could jab at a husband in a custody battle by manipulating the kid into accusing the dad of molestation. It was when a woman could accuse a guy of rape, with no accompanying evidence or credible story, and be believed. It was when a parent could influence a child to keep quiet in the face of a monstrous crime and the prosecutors wouldn’t dig deeper.

Among many such cases, one will always stick in my memory, the murder of a child. Our client was the accused, the father. It was a low paying court appointed case for me; it was the same for the uninspired attorney I was working for. The police reports showed no promise for our client; not that I thought there should be any. Gang killings and drug murders were victimless crimes in my outlook. The slaughter of a child wasn’t.

The parents of the youngster were lowlifes in their early thirties, living in a small and dirty weekly rental in Trinidad, south of Pueblo . They had one remaining child, a six year old girl. The investigating officers had found her brother, a three year old, dead in the bedroom both kids shared. They called for paramedics who pronounced the youngster, bloody and bruised, dead at the scene. The autopsy revealed multiple skull fractures with intracranial bleeding as the cause of death.

I started the case by interviewing our client in jail. He was anxious to tell his story. He and his wife had been drinking and snorting coke and had a fight. They settled things and did more coke, finishing all they had. The wife went out to find their dealer and was gone a long time. The boy was restless, fussing and crying. As he became more agitated, so did our client. He tried to quiet the baby and only got angrier. He shook the baby, hit him about the face and threw him across the room. The youngster stopped crying. And moving.

My next step was to interview our client’s wife. Their apartment was so like those I was familiar with as a narc that I thought I was watching a movie of my past. There’s a smell that comes from unwashed bodies, cat and child urine, dirty dishes and desperation. This apartment had it and it hit me before I crossed the threshold. The mother was in apparent anguish and closely echoed the story her husband gave me. I say apparent anguish because I felt her holding something back. She was a dope fiend so my expectations of meeting a grieving mother weren’t high. Amid the tears there was a coldness, an aloofness from the situation. A piece of this seemingly obvious puzzle was missing.

Because of the age of the surviving girl and the gravity of the case, a representative of the prosecutor’s office from the victim/witness division,
was in attendance when I interviewed her. I had interviewed several people with her before and thought she was okay. Some were way too aggressive in protecting their clients, scolding me when my questioning got to the point of probing for details. “Look,” I would reply to them, “I’m a nice guy. The defense attorney’s a jerk. Who would you rather have talk to this kid?”

The interview took place at the child’s aunt’s house. It was a modest home and simply furnished, but clean and much better than the kid was used to. We were alone with her on the first floor. I tried never to talk down to someone I was interviewing. Rather, I tried to set them at ease with me being a nice guy who just wanted to do my job, get at the truth and then leave them alone. In the case of a child, being open and respecting their intelligence was most often enough to get a satisfactory interview.

After introductions, I began by asking about her brother’s health. It had been okay as far as she knew. I asked if he cried and fussed much and she said yes. This was where I’d find the golden key but the time wasn’t right to press in. I questioned her about her parents and if they fought much. They did, she said, but didn’t really know why; it seemed to increase when they had a party together. I talked about her school, favorite subjects and fun sports for awhile. About twenty minutes had passed and I knew that her attention was waning. Now was the time to turn that key. “When your brother died, were both your parents home?” “Yes.”

Bingo, here we go. My suspicions after interviewing her mom were soon to be justified. “You know how important it is to tell the truth all the time?” I asked.
“Yes.” Her eyes flicked aside ever so quickly. This was it.
“It was your mother who hurt your baby brother, wasn’t it?”
Man, I hated this. Her eyes dropped to the floor and then to the victim/witness woman, who had suddenly come alert and glared at me. I gently held my hand up, motioning for her not to say anything.
“Yes.”
“It wasn’t your dad, was it?”
“No.”
We thanked the child and took her upstairs. On our way out to our cars, I turned to the victim/witness rep and said, “My client’s attorney will expect a call from your boss in the morning.”

My emotions were jumbled when I got home late that night and poured myself a tall, straight glass of rum. Why hadn’t the cops picked up on this? Why hadn’t the DA questioned the reports? Why hadn’t he taken a closer look at the mom?

After the mom pled out and the dad was released from jail, the attorney, gloating over his victory, told me his misguided client was trying to cover for his wife, taking the credit for the case I’d broken. It was a little like someone telling the baker how the bread was made.

One more example of victims being believed in the face of all evidence to the contrary stands out. It was a woman who accused two guys of rape at a party. Everyone there had been drinking when the suspects took her upstairs where, the cops said, both had forced sex with her. They then had sex with her again, this time in a different position. The police reports treated this lightly. No one downstairs heard anything like a struggle. No one heard any shouting. I blinked as I reread this section several times. WHAT?!?!

When my chance to interview the victim came shortly before the trial, I had no set plan. I just determined to fill in some of the blanks left by the sloppy police reports. The most obvious questions were: Had you known both these guys before the party? What did each person do after the initial sex? How long after the first sex did the second intercourse occur? The answers, in order: No. We went to sleep. About an hour.

There were only a few more questions that would lead to a dismissal of the case. In the hour after the first sex, did you make any attempt to escape? No. Were you restrained in any way from leaving? No. Did either of these guys call you after that night? No. Were you upset by that? Yeah.

One of the cases that stretched the bounds of my complicity with defense attorneys was again with John Ziegler. It was actually a series of cases, that, while keeping me well supplied with cash, gnawed at me. John represented several Mexicans, who comprised a cartel-within-a- family. Over several months, scarcely two weeks passed that John didn’t call me about a new family member arrested. I’d arrive at his Denver office, greeted by his secretary who handed me a retainer check for $2500.00. Each time.

The head of the operation was Adolfo, a young, handsome light skinned Mexican. I soon met his wife, Dina. The two looked the picture of the American Dream. Young, hard working foreign nationals who had made it good in the States, living in a good neighborhood and driving nice cars. Hard working they were indeed, keeping a stable of cousins and nephews busy distributing large amounts of cocaine north and south along the I-25 corridor and east and west along I-70. I had no doubt that some of the coke I’d bought in my narc days came from these folks.

Every time there was an arrest or a suspected surveillance, I got a call. More by luck than design for Ziegler’s clients, all the cases were in state court. This was probably due to the fact that the arrests were scattered over several counties. John, with my assistance, cut some great deals for most of the mules, or family delivery men. Some, however, were just too guilty for even an ace attorney like him to help.

A big concern of Ziegler’s was that he knew the feds wanted these folks badly. Once they got into the act, the show would be closed down. When he would interview Adolfo and his wife, I was often there to help with translation. I would then be excused for him to spend time alone with his clients. While I never asked him what was said during these private meetings, I imagined John the attorney giving them the advice to stop doing what they were doing. On the other hand, I thought about John the investor who, with his partner Max Malcovich, had taken a bath in the ’89 stock crash. He liked and needed the income flow.

I too liked and needed it. Along with that, I enjoyed doing verbal battle with the arresting troopers, street cops and detectives. The closing act came in Pueblo county and while saddened at the loss of those big checks, I was happy to be done with Adolfo’s clan.

A state trooper had pulled over a speeding (wow, how dumb was that?) sedan with several Mexicans inside. Once at the side of the road, the occupants bailed from the car and scattered. The slowest cousin was the chubby driver, who was grabbed immediately. A quick search of the car on probable cause revealed a trunk full of kilos of cocaine. This cousin was arrested and placed under $20,000 bail.

This was a mistake. Perhaps the presiding judge was fooled by the peasant-like appearance of the man before him in court. Possibly he didn’t think this mule had any connections who could help him out.

Ziegler called me first thing Monday morning and told me to pack for an overnight trip. At his office he handed me two bank withdrawal slips for $9,999.00 each. I understood immediately. Any bank withdrawals over $10,000 had to be reported to the feds. He also handed me an envelope with $1,000 cash to cover my immediate travel expenses, the balance to be given to Adolfo’s cousin.

The glance I gave John opened a gulf between us that never closed. It was a questioning, partially hurt and feeling-fully-manipulated look. I was to go to the county jail in Pueblo and bail his new client out. I was to get him a room and give him a bunch of cash.

The term “client” really didn’t apply. We both knew that the cousin would contact Adolfo and be told where to go for the time being while arrangements were being made to ship him back to Mexico, never to appear in court.

The look I got from the jail staff and detectives in Pueblo as I handed over the $20,000 in bail money weren’t as kind as the one I’d given Ziegler. They hated me and made every effort to show it. I shared their thoughts.

RGK

 

 

An ode to certain “serious” law professors

I received some critical reaction from “serious” law professors regarding my use of “stfu” in my Hobby Lobby post. Here is a particularly florid one from a corporation’s guy who so far as I know has never stepped into a trial courtroom let alone any other courtroom.* Without intending to shove a stick in the eye of such types, I encourage them to read Christopher M. Fairman, FUCK, 28 Cardozo Law Review 1711 (2007). I then encourage them to grow up.

I supposed I am obligated to do one more thing. “Serious law professors” have these attributes: You have tenure, you are highly educated, you proclaim the value of intellectual honesty (but you never take risk that would test that commitment), you give high value to the power of words (as long as they accord with your world view), you never make a point without evidence to back it up and you always attend the Dean’s tea. But, because I, like you, place a premium upon not giving offense or inflicting trauma on someone who is not a member of my elevated class, I herewith provide a TRIGGER WARNING. This post might cause certain “serious” law professors emotional issues. So, don’t read this post or the cited law review article if you wish to avoid years of therapy that the resulting trauma may require. 

RGK

*Citing no evidence, the good professor (a real wordsmith) accused me of “thinly veiled anti-Catholicism.” While it is true that I am not a religious person and my first cousin, after travelling the world, converted to Reform Judaism, the following might interest the good professor: the man who most influenced me about telling the truth was a dear friend and a Catholic priest; my late wife devoted her teaching to the Catholic schools; my brother-in-law (the brother of my late wife) went to a Catholic high school as did my middle daughter, at my insistence; my oldest daughter married in a Catholic church and took instruction from a Catholic priest in order to do so; five years after the sudden death of my first wife, I married my second wife, Joan, a devote Catholic and member of a large Catholic family with seven children.

Justice Breyer is “a cold fish,” the young and the dumb said so

As a lawyer, until you have been around for a while after law school, you are young and dumb. You just are. It is a provable fact–as a lawyer without experience you are young (even if you are old) and you are dumb.

I don’t care if you went to Harvard Law School. I don’t give a shit what your IQ score was at some prep school. I don’t care if you carry around your Nobel Prize. No White House should use lawyers with no more than two years experience to help vet potential Supreme Court nominees. For a terrifying (and fun) read when the young and dumb were consulted in the Clinton administration about Judge Breyer, please read ‘Cold Fish’ Memo on Justice Breyer Surfaces in Clinton Papers, Wall Street Journal (Jun 6, 2014). Thanks to Howard Bashman, at How Appealing.

When I got done reading the article. I had two thoughts. (1) What a bunch of fucking idiots at the White House to rely upon these kids.  (2) What kind of an ego does it take to believe that two years out Harvard you are competent to undertake the task of evaluating a potential nominee to the United States Supreme Court?

God(s) please spare us the young and the dumb.

RGK

 

 

%d bloggers like this: