Another post on how the sausage is made: Petitions for writs of mandamus by pro se litigants


Let’s discuss making sausage.


Rule 21 of the Rules of Appellate Procedure provides in pertinent part as follows:

a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court must file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes.

(2)(A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

(5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court judge

The authority to issue a writ of mandamus comes from the All Writs Act. 28 U.S. Code § 1651(a) (“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”)

Essentially, a writ of mandamus is a direction by a superior court to a district judge.  It tells the judge to do, or refrain from doing, something that is inconsistent with the trial judge’s previous order (action). It is a way to get an issue before the superior court when an appeal would not be authorized because whatever the trial judge did was not a final order and normally no appeal will be heard from non-final orders. It also can be used when the petitioner lacks standing to appeal.

In the hands of experienced federal practitioners, the ability to seek review via a writ of mandamus is an important tool. For a fascinating mandamus case with extremely good lawyers that involved yours truly, see US v. FastNos. 12-2752, 12-2769 (8th Cir. 2013) (denying crime victim’s petition for writ of mandamus regarding my award of restitution in a criminal case involving child pornography), on remand from the Supreme Court, US v. Fast, Nos. 12-2752, 12-2769 (8th Cir. 2014) (remanding the case to me in light of Paroline v. United States, 134 S. Ct. 1710 (2014).)*

On the other hands, the ability to seek a writ of mandamus by pro se filers is a problem. Often, those petitions are entirely lacking in merit, and sometimes they are plainly frivolous. They slow down cases. Frequently, the Court of Appeals will call for a response from the trial judge before ruling, and the judge must then submit a careful written response. Moreover, the trial judge frequently freezes the case in place awaiting a decision from the Court of Appeals because the judge worries that if the petition is granted the bell cannot be unrung.

While the problem is, in my view, significant, I don’t know of any solution to it. I am reminded that making sausage is not a pretty process.


*On remand, I made the same award.


President Truman, Justice Jackson, the prosecution of the Nazis and the value of transparency

I have a strong recollection of speaking with my father* on the subject of whether it was fair to try German officials for their deeds during the WWII inasmuch they were following German law. This must have been sometime in 1954. I have no recollection of how the subject came up or why my father thought a child could understand what he was speaking about. Anyway, that is the first time I had heard the words “ex post facto.” My father, like many Americans, was never entirely sure that the war crimes trials were fair despite the fact he held a deep loathing for the monsters of the Third Reich.

Thus, it was before the trials started that Justice Jackson and the American government faced a public that was not entirely certain about the simple justice of the endeavour. From the Jackson List and the estimable Professor John Q Barrett, I now know that the Justice and the President relied on transparency as a way of building the support of the American public for Jackson’s mission:

During the course of his seventeen-plus months as United States Chief of Counsel for the prosecution of Axis war criminals in the European theater, Justice Robert H. Jackson wrote and delivered five (at least) monumental, eloquent and enduring statements about his work:

  • On June 6, 1945, Justice Jackson delivered a preliminary report to President Harry S. Truman;
  • On November 21, 1945, Jackson delivered his opening argument before the International Military Tribunal at Nuremberg in Allied-occupied former Germany;
  • On February 28, 1946, Jackson delivered to the IMT his argument defending the criminal charges against the Nazi organizations that he was prosecuting in addition to the individual defendants;
  • On July 26, 1946, Jackson delivered his closing argument before the IMT; and
  • On October 7, 1946, following the completion of the trial and Jackson’s return to Washington and the Supreme Court, he delivered his final report as Chief of Counsel, along with his letter of resignation, to President Truman.

*          *          *

The first of these, Justice Jackson’s June 1945 report to President Truman, summarized Jackson’s first forty days of work as the President’s appointee and Jackson’s views on how he hoped to proceed.

At the start of this report, Jackson described his activities since May 2nd, when the President had announced Jackson’s appointment:

In brief, I have selected staffs from the several services, departments and agencies concerned; worked out a plan for preparation, briefing, and trial of the cases; allocated the work among the several agencies; instructed those engaged in collecting or processing evidence; visited the European Theater to expedite the examination of captured documents, and the interrogation of witnesses and prisoners; coordinated our preparation of the main case with preparation by Judge Advocates of many cases not included in my responsibilities; and arranged cooperation and mutual assistance with the United Nations War Crimes Commission and with Counsel appointed to represent the United Kingdom in the joint prosecution.

Jackson then covered, in some detail, five topics:

1.                  how his work to prosecute major war criminals was being coordinated with other, ongoing war crimes prosecutions;

2.                  his preparation of the American case, his coordination with U.K. counterparts, and his communication with French and U.S.S.R. representatives as they worked toward agreement on an international plan of action;

3.                  the basic features of his prosecution plan, including his commitment to fair trials as a desirable alternative to summary executions;

4.                  the prosecution’s validity in international law, and as a next step in international law’s development; and

5.                  his sense of urgency, both to commence trial and to complete his assignment.

Jackson finished writing his report on the morning of Wednesday, June 6, 1945.  He delivered it to President Truman at the White House late that afternoon.

In their meeting, which was brief, the President stated his approval of the general make-up of Jackson’s plan and expressed particular appreciation for his report’s closing paragraph, which thanked Truman for his personal encouragement and support.  They agreed that Jackson’s report, which although “private” really was a state paper written for the public, would be released promptly.

The White House released Justice Jackson’s report on the next morning, June 7th.  That afternoon, President Truman responded as follows to press questions about the report

Q. Mr. President, are you in complete agreement with Justice Jackson’s report?

A. I am in entire agreement with it.  I think it’s a good report, and I think it shows just exactly what we are attempting to accomplish.

 Q. Mr. President, can you shed any light on one section of that report, where Justice Jackson said that it was the inescapable responsibility of this Government to prosecute these war criminals, even if this Government had to do it alone?

 A, That’s just—  It means just exactly what it says.  That is what we propose.

 Q. Is there any prospect that we will have to do it alone?

 A. No, no.  That’s just to make it emphatic.

 Q, Any prospect of an early answer from the other countries on our suggestion for a military tribunal?

 A. Yes, I think so.  I don’t think there will be any delay on that.

 Q. Mr. President, can you tell us—

 A. The British have already come in, and I am sure the Russians and the French will.

In ensuing days, Jackson’s report—about 5,700 words—was published in most American newspapers and in many newspapers around the world.  It became a topic of very positive comment and, going forward, a reservoir of governmental and public support for Jackson’s work as U.S. Chief of Counsel in London, where the international negotiations soon commenced, and then in Nuremberg throughout the trial year.

To read Justice Jackson’s full June 1945 report to President Truman, click here.


*My father served in North Africa and was awarded the Purple Heart. Somewhere, I have a  photo of him guarding German POWs.

How Justice Jackson became the chief prosecutor at Nuremberg

John Q. Barrett, Professor of Law, St. John’s University, and author of the Jackson List tells the story of how the Justice became the chief prosecutor of the Nazis. As always, this tale is fascinating. Enjoy.

On Thursday, April 26, 1945, Justice Robert H. Jackson and his Supreme Court colleagues heard oral arguments in five cases.

Later that afternoon, as Jackson worked in his chambers, his secretary Ruth Sternberg took a telephone call from the White House.  The caller explained that Judge Samuel I. Rosenman, President Truman’s counsel, wanted to speak to the Justice.  She put Rosenman through and he and Jackson spoke, briefly.  Rosenman said he had a presidential request to communicate to Jackson.  Rosenman asked if he could come to the Court to talk to Jackson in person, and he of course agreed.

When they met a short time later, they first discussed President Franklin D. Roosevelt.  He had died, suddenly, just two weeks earlier.  Each had known him well and worked with him closely.  They discussed their personal loss, and its effect on the country.

Then Rosenman turned to the point of his visit.  He explained, at length, that the Departments of Justice, War, Navy and State had, some months earlier, prepared a plan for President Roosevelt.  It proposed to try Adolf Hitler and other Nazis, soon to be defeated militarily, as war criminals before an international tribunal.

Roosevelt had approved the plan and, at the Yalta conference in February, he had presented it to Churchill and Stalin.  Together they had referred it to their foreign ministers.  Since then, additional work, including by Rosenman himself in London, had occurred.  In the U.S., Rosenman told Jackson, the War Department had done substantial work, assembling a very large amount of detailed evidence showing criminal conspiracy by Nazi leaders and the culpability of many individuals.

Then Rosenman communicated President Truman’s request:  he wanted Jackson to head the American delegation in this international endeavor, and to conduct personally and present evidence in the American case, and to be really the lead trial attorney for the entire United Nations.

They discussed all of this in detail.  Rosenman conveyed President Truman’s very complimentary opinions of Jackson’s experience and ability as a trial lawyer, and the President’s offer to Jackson of a free hand in discharging the proposed assignment.

They also discussed whether it would be consistent with Jackson’s duties as a Supreme Court justice.  Rosenman reported Truman’s view that it was, and that it would not require Jackson’s resignation from the Court.  Jackson noted that the Court was approaching its summer recess, and that trials of war criminals would need to be prompt if they were to serve real public purposes.  He opined that this new task would not really interfere with his Court work until October at the earliest.  He and Rosenman concluded that because Jackson’s Court colleagues likely would bear with him and do some part of his Court work in the next year, he could undertake the assignment and remain on the Court.  Jackson added that if he took the position and it affected the Court adversely, he of course would resign from judicial work—he believed that he could not properly start the President’s assignment and then leave before it was finished.

*          *          *

Thus began Justice Jackson’s assignment as United States Chief of Counsel for the Prosecution of Axis War Criminals in the Europe Theater.  It took him to Europe in May 1945, and then to London that summer, and then, after successful negotiations with Allies and creation of the International Military Tribunal, to Nuremberg in Allied-occupied former Germany.

Beginning that November, Jackson served in Nuremberg as U.S. chief prosecutor before the IMT.  With Allied counterparts, he prosecuted twenty-one Nazi leaders and six Nazi organizations for the overarching crime of conspiracy, and for the substantive crimes of waging aggressive war, committing war crimes, and committing crimes against humanity.  Their evidence, mostly captured, authenticated Nazi documents, showed the enormity of the crimes and the evils of Nazism (including what the prosecutors began to comprehend that year, and the world has worked to comprehend ever since, as the Holocaust).

Almost a full year later, in Fall 1946, at the conclusion of the first and only international Nuremberg trial, the IMT held that each of the charged offenses was an international crime.  It convicted most but not all of the defendants and imposed serious sentences.  It made factual findings, based on the evidence, of what Nazism and each defendant had been and done.

Justice Jackson, undertaking this assignment, missed the Supreme Court’s entire 1945-46 Term.

*          *          *

At the beginning, on April 26, 1945, Justice Jackson did not immediately accept President Truman’s request, communicated by Judge Rosenman.  They agreed that Jackson could think further and study it.

Over the next days, Rosenman provided and Jackson reviewed secret government planning documents.  Jackson drafted a proposed letter of acceptance.  He spoke to Assistant Secretary of War John J. McCloy and, later, to Secretary of War Henry L. Stimson, two important architects of the project.  With input from Rosenman and others, Jackson drafted proposed executive orders outlining his appointment and assignmen

Jackson also spoke with President Truman, first by telephone and then in person.

On May 2, 1945—seventy years ago tomorrow—President Truman signed Executive Order No. 9547.  It designated Justice Jackson to act as U.S. representative and chief of counsel in preparing and prosecuting charges of atrocities and war crimes, against leaders of the European Axis powers and their principal agents and others, before an international military tribunal.

That afternoon, the President held a press conference.  He read a statement announcing his appointment of Jackson.  He explained that Jackson’s task would be to prosecute major Nazi war criminals whose crimes had no particular geographical location.  The President stated his hope that an international military tribunal soon would be organized, and that it would be Jackson’s job to try cases before it.  Truman announced that Jackson had assembled a staff that already was at work, so there would be “no delay.”

The President also disclosed, it seemed almost accidentally, his “official information” that Hitler was dead.

Justice Jackson, at the Supreme Court, then issued his own statement.  His task, he said, was “that of a lawyer and advocate.”  He said he was “accept[ing] the assignment by the Commander in Chief with a sense of my inadequacy and with complete dedication I shall see it through.”

Jackson articulated publicly, on that first official day, his vision of what became the Nuremberg trial:

I would not have taken this burden upon myself if I were not convinced that materials available and procedures possible afford an opportunity to do something toward bringing to a just judgment those who have heretofore thought it safe to wage aggressive and ruthless war; and to do it in a way that will be consistent with our traditional insistence upon a fair trial for the accused.

 Thanks to Professor Barrett for his fantastic work. He is a treasure as is the Jackson List.


When state prosecutors lie under oath and present the testimony of a witness that the prosecutor knows to be untrue

screen-shot-2015-01-20-at-10-36-31-pmI am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.

From a retired former federal prosecutor with tons of experience as an FBI agent, as an AUSA, and as a supervisor, an e-mail landed in my account two days ago. My correspondent urged me to read the following article and view the video of arguments in the Ninth Circuit presided over by Judge Kozinski. See Sidney Powell, Breaking: Ninth Circuit Panel Suggests Perjury Prosecution For Lying Prosecutors, New York Observer (January 20, 2015).

It is  may be shocking proof that some state prosecutors are liars and some state prosecutors knowingly present liars as witnesses. To them, winning is everything. See the update below. I have NOT read the entire record.

Judge Kozinski and the Ninth Circuit are bound and determined to punish such behavior. Please read the article and view the video cited above. Starting off it will sicken you, but in the end it will make you proud even though you should worry about the tip of the iceberg.

Thanks Jeff.


A commentator who states that he or she has read the record has provided this important information:

I just read the documents that were filed with the federal court in connection with this habeas case. They are quite extensive. They are all available on PACER. You may want to read them for yourself. After doing so, you may want to edit the title of your post.

Apparently, what you classify as a “prosecutor lying under oath,” involved a prosecutor who was called as a witness to explain to the jury why a witness/informant’s sentence was reduced by three years. That prosecutor testified that the sentence reduction was the result of a sentencing mis/re-calculation, and not a quid-pro-quo in exchange for the witness/informant’s testimony against the defendant. That prosecutor also testified to the same effect in connection with the federal habeas proceedings, essentially sticking to his recollection as testified to at the defendant’s trial. There is a transcript of the witness/informant’s sentencing proceeding that, on its face, appears to condradict the witness/prosecutor’s recollection of events (that took place many years before he testified at the defendant’s trial. But that prosecutor testified (in connection with the federal habeas proceedings) that there off-the-record discussions regarding whether or not the witness/informant’s sentence should be reduced which apparently bolster the witness/prosecutor’s recollection of events.

Bottom line: In this case (which apparently was tried twice over a period of seven years), it doesn’t seem fair to tar the prosecutor as a perjurer (as you do by your post) untill you have read the entire, voluminous record that exists and is available for public inspection. The same goes for the Ninth Circuit panel. Judge Kozinski has stated that there is an “epidemic” of Brady violations being committed by prosecutors throughout America. It seems like he is on a crusade in this area, albeit a good crusade if his statement is accurate. But, based upon my quick reading of the record in this case, it seems as though he (and his collagues on the panel) jumped the gun (probably based upon their law clerk’s memos) without carefully and fully reading the entire record in this complex case.

With respect to the trial prosecutor, apparently he had no knowledge that any witness at the trial provided testimony that was in any way false or misleading. He testified to this effect at the federal habeas evidentiary hearing. And the magistrate judge presiding over that hearing expressly found that the trial prosecutor did not know that any witnesses testimony was false/misleading. You may want to read the record. It may cause you to remove the “that the prosecutor knows to be untrue” language from your post.

The internet is a powerful tool that has served many great purposes. But, if used improperly, without cross-checking the accuracy of what is being posted (which, I concede, can be a time-consuming task that detracts from the allure of instantaneous reporting of events that blogs like yours permit) it is nothing more than a gossip-mill which, in some cases, can unfairly destroy the reputation of innocent persons.



Professor Richard Hasen and Dahlia Lithwick are right on state judicial election ads but a similar and more serious problem lurks for the Supreme Court (and possibly the rest of the federal judiciary)

Last Wednesday, I posted a video of a mock ad for a judge that ridiculed advertising for judges who run for elections. It was funny. But, as the real ads become more and more numerous, misleading, vicious, and explicitly partisan, there is a serious consequence to judicial advertising. The public begins to see judges as nothing more than politicians in black dresses.

Thus, I couldn’t agree more with the thrust of Professor Hasen and Ms. Lithwick’s Slate article entitled Lousy Judgment, This year’s scary election ads will destroy any lingering confidence in the judicial branch (October 31, 2014).* As the authors state, “the real effect of these increasingly nasty ads, and the fundraising demands that come along with responding to these increasingly nasty ads, is an aggregate loss of confidence in the capacity of the judicial branch to be fair and unbiased.”

What frightens me even more than these angry, inane, uninformative, untrue and, yes, scary ads for state judicial officers is the ill-conceived notion that we ought to do away with lifetime appointments to the Supreme Court and instead adopt a system of term limits for the Justices. If we fear the explicitly partisan judicial jousting in some of our states, we ought to be terrified at the idea of nationalizing this idea for the Supreme Court.

One of the most “popular” term limits proposals, at least among the elites, would limit the Justices’ active service to 18-year terms so that a new member would be nominated in each odd year, giving presidents 2 nominees for each 4-year executive term.  That is exactly what we don’t need if we care about the public’s confidence in the Court.**

We don’t need a hyper-partisan confirmation fight of monumental proportions every two years driven by the President’s “right” to select his or her “own” to serve on the Court. At the level of the Supreme Court and throughout the nation, the adoption of such a proposal would finally put a stake through the heart of the principle that law is not politics by another name.***

As Professor Thomas W. Merrill, the Charles Evan Hughes Professor of Law at the Columbia Law School, has said, “Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution.” In other words, term limits would likely erode public perceptions (even more) of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for the president. I hope that does not come to pass. The consequences are scary.



*The irony of my agreement with Professor Hasen and Ms. Lithwick will not be lost on those who read this blog regularly.

**The idea would surely “trickle down” to the lower federal courts. For example: “There is something more required for federal district judges. Similar term limits and no-confidence votes by the state legislatures in their districts would likely help a lot. Perhaps having the nominees approved by state legislatures in their district rather than the Senate would be a good idea.” aurorawatcherak, Reforming the SCOTUS  (April 1, 2014). Indeed, Linda Greenhouse, who is many things but not a nut, explicitly calls for the adoption of a Constitutional amendment of Article III that would apply to the lower courts. The amendment she endorses reads this way: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour for a non-renewable term of 18 years, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” At nearly 68, and on senior status, they can’t get me.  Except for my love of the federal judiciary, I have no personal interest in these matters.

***Maybe this is not a principle but rather a pretense. If that is true, it was not always so and one can hope that the principle is restored in the future. Moreover, even it is and will always remain a pretense, it is a pretense worth preserving. Sometimes, pretenses serve to constrain the behaviors of even the most strong-willed and potentially partisan among the judiciary. I know that from personal experience.

A reluctant “prosecutor”

This may not interest anyone except those who study Nebraska legal history. Then, again, it is sufficiently weird that it may be interesting to others. I will tell the story. You decide.

As I indicated in my post on Bill Barrett, in the early 1980s I was hired to represent the Nebraska legislature when a state savings and loan company went under and many Nebraskans lost a lot of money. One of my jobs was to investigate the involvement of Attorney General Paul Douglas. To make a long story short, one of my investigators, a detective with the Lincoln police department, dove into the records of the failed company and came up with a check that seemingly proved that Douglas had been involved in “straw man” loans with the company. That was a problem for Douglas, particularly because he also had oversight authority of the banking department that regulated the failed institution. To make matters worse, Douglas had assigned an assistant attorney general to that task who owed a lot of money to the failed institution and she had previously been married to the Attorney General’s business partner.

I became convinced that Douglas had not been honest with the Nebraska legislature when he testified that he did not understand the nature of the fraudulent transactions he had engaged in with the company. Basically, the transactions worked like this: (a) Douglas and his business partner would borrow money from the failed institution to buy real estate owned or financed by the financial institution; (b) someone controlled by the institution would buy the real estate from Douglas and is partner with financing from the failed institution; (c) Douglas and his partner would profit from that transaction; (d) the new loan on the real estate would be booked by the institution and the sale price would indicate that the institution was well secured by the real estate that now had an inflated value. The straw buyer from Douglas and his partner would hold the real estate until he or she could sell it. This worked fine until it didn’t; that is, until real estate values crashed in Nebraska and throughout the nation.

The question for me was whether I should advise the Nebraska legislature to impeach Douglas. At that time, there had been only one impeachment in Nebraska’s history and it had failed. See State v. Hastings, 37 Neb. 96, 55 N.W. 774 (1893); State v. Leese, 37 Neb. 92, 55 N.W. 798 (1893); State v. Hill, 37 Neb. 80, 55 N.W. 794 (1893). Moreover, that earlier impeachment was before Nebraska had a unicameral legislature.  With the advent of the unicameral legislature, impeachments were of necessity tried in a real court, the Nebraska Supreme Court, and not in the Senate of a bicameral legislature.

The standards for an impeachment conviction were impossibly high: (1) although the only “punishment” involved was the loss of office, the Nebraska Supreme Court treated the proceeding as “criminal” in nature and required proof beyond a reasonable doubt; and (2) a majority of the Justices (four) was not sufficient to convict, a super-majority of five out the seven was required to find “guilt.” Moreover, we would have almost no time to prepare because the trial was required to be held in ten days and that time limit would not be extended!

I was instructed to draft articles of impeachment that could be used in two ways. The legislature could adopt the articles, but, instead of impeachment, officially reprimand Douglas, call for his resignation and refer the matter to the Nebraska Counsel on Discipline for an ethics probe. This was the alternative I recommended arguing in a memorandum (leaked by a Douglas supporter and state senator) that a conviction would be very hard to obtain given the criminal nature of the proceedings, the requirement of proof beyond a reasonable doubt, the need for a super-majority of justices to find “guilt,” and the ten-day time to prepare. The alternative was impeachment. When the day of the debate came, I was stunned as I watched the proceedings unfold. The body elected to impeach, and it was my job to try the case.

I needed help. So, I called my friend Wes Mues, who later became a distinguished appellate judge. I have written about Wes in these pages and in particular his tragic death in an auto accident. Wes and I decided that we would try the case as fast as possible leaving Douglas’ defense team little time to prepare. (In about three days, we called 21 witnesses* and offered 103 exhibits.) We also sought to call Douglas as a witness but the Supreme Court quashed the subpoena on “Fifth Amendment” grounds.  We did not call the principals of the failed institution because they were being prosecuted in state court and they were also the subject of a federal grand jury investigation.** If the impeachment trial was truly a criminal case, we could not ethically call anyone who had a legitimate Fifth Amendment privilege if we also knew the witness would invoke the privilege in front of the finder of fact.

When Wes and I had our first “status conference” with the defense team and the Supreme Court we quickly realized that there was an evident hostility among some of the judges toward our side. Judge Boslaugh was presiding because the Chief Justice and two other justices had recused themselves and in their place state district judges had been substituted.

Boslaugh quickly threw us a curve. “Who do you represent?”, he asked. I replied that we represented the Nebraska legislature. Boslaugh disagreed. He instructed us that we were no longer representatives of the legislature but we were henceforth “special assistant attorneys general.” We were told that we represented the State of Nebraska. We objected, and told the judge that we would have to consult our client, the legislature. Boslaugh implied that he would kick the case if we did not relent. We spoke with our client–through the two legislators who had been designated as “managers.” They agreed that we had no choice, and Wes and I became “special assistant attorneys general” representing the State of Nebraska. And, that dear friends became very significant as I will next explain.

Working day and night to get ready, Wes and I went into seclusion at the Super Eight motel. We had help from young staffers from the legislature. They were willing but none of them had ever been in a trial. Wes called one of his law partners, Graten Beavers (who later became a county judge). He had a lot of experience as JAG prosecutor, and Graten drove from Kearney to Lincoln to help us. But we remained under the gun.

And then the call came.

A very experienced criminal defense attorney from Omaha called. His call was a bombshell. His client was the mastermind of the “straw man” loans and the main principal at the failed institution. Since Wes and I were now special assistant attorneys general, we had the power to grant immunity. He wanted a deal. In exchange for immunity in the pending prosecution in state court, his client would appear as a witness against Douglas and explain fully that the Attorney General knew exactly what was going on. I listened, and told the lawyer I would have to get back to him.

My initial inclination was to reject the offer. It was too high a price to pay. But, without that testimony, we almost surely would be unable to convince five judges beyond a reasonable doubt that Douglas had guilty knowledge. I decided that I needed to consult with the local prosecutor. His name was Mike Heavican. I did not know Mike then, although I consider him a good friend now. He later became the United States Attorney for the District of Nebraska and presently serves as Chief Justice of the Nebraska Supreme Court. When I called Mike, he was very helpful. Essentially, he said that he thought it would be wrong to do any deal. Even a deal limited to use immunity would put the malefactor in a position to argue for leniency if, as was likely, the state criminal prosecution against him was successful. Mike and I agreed that I should completely reject any offer of cooperation. And I did.

After the trial, which was televised throughout the state on public television, the outcome I had feared came to fruition. We had convinced a majority of the Supreme Court that Douglas was guilty. Hastings, Shanahan***, and Grant, Justices, and Moran, District Judge found that:

based on the evidence before us, we find beyond a reasonable doubt that the misrepresentation by Douglas was willfully done with a corrupt intention. Specifically, we find that Douglas is guilty of specification No. 1 of the articles of impeachment and resolution submitted by the Eighty-eighth Legislature, Second Session, of the State of Nebraska. Therefore, we would find that Paul L. Douglas has committed a misdemeanor in his office as Attorney General of the State of Nebraska.

 State v. Douglas, 349 NW 2d 870, 903 (1984).

Lacking a super-majority, however, Douglas escaped conviction.****

So, I will conclude with a question. Was I a dumber than a mule for rejecting the cooperation agreement?

Photo credit: a-z animals.

Photo credit: a-z animals.

To this day, I go back and forth on the answer to that question. Quite frequently, I bray and wiggle my pointed ears.


*Among other witnesses, we called the brilliant Ronald D. Rotunda, a constitutional law expert, an ethics expert and a lawyer who served as assistant majority counsel during the Watergate scandal and investigation.

**As a side note, the feds had brought in a special prosecutor from the Department of Justice. I had convinced him to give me the grand jury transcripts under Federal Rule of Criminal Procedure 6 as it then existed. On the day I was scheduled to drive to Omaha to get the transcripts, the DOJ prosecutor pulled the plug asserting that the FBI’s “in-house counsel” did not believe that disclosure was permitted under Rule 6 because I was really not a prosecutor. Tell that to Justice Boslaugh, I thought to myself.

***Tom Shanahan later became a federal district judge and my dear friend. I never spoke to him about the Douglas matter.

****Mr. Douglas was later prosecuted for what amounted to perjury. I testified against him. He was found guilty but his conviction was overturned when the Nebraska Supreme Court found that the legislative committee that administered the oath lacked the power to do so. See here. Subsequently, Douglas lost his law license for four years, was reinstated and practiced law until his death. See here. Mr. Douglas later appeared before me several times. It was awkward. That said, he always treated me with respect and he always did a good job for his clients. So far as I am concerned, Paul Douglas was a good man and a good lawyer who made a bad mistake. He passed away in November of 2012. See here.

A clemency proposal that deserves strong support from President Obama and AG Holder

A helpful reader brought to my attention a piece on the New York Times editorial page that proposes a complete reworking of the clemency process. Specifically, it proposes a broadly representative and non-partisan commission to make recommendations to the President about pardons and clemency.

Given my awful experience with Hamedah Hasan (Merciless), I urge President Obama and Attorney General Holder to get behind this proposal, and strongly so. They should so if only to publicly proclaim “mea culpa, mea culpa, mea maxima culpa” – “through my fault, through my fault, through my most grievous fault.” A public expiation of their manifest sins would do them and the rest of us (not to mention those who deserve mercy) a world of good. If Obama and Holder aren’t total hypocrites they will do so.

I reprint the piece in full:

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates.

This design would give the president bipartisan support in making what is often a politically sensitive decision. Particularly in a tough-on-crime age, the risk of even one person committing another crime is enough to deter grants of clemency across the board. That is another argument for a well-financed commission, which can collect data on the results of clemency grants — data that could then be used to better inform future decisions.

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

The Editorial Board, It’s Time to Overhaul Clemency, New York Times, August 18, 2014.


The notice of appeal problem in criminal cases

I have a problem. My problem relates to motions to vacate under 28 U.S.C. § 2255. I hope readers who practice criminal law in the federal courts can help me.

If a defendant does not take a direct appeal, and later files a section 2255 motion alleging ineffective assistance of counsel on the basis that defense counsel was told to take an appeal but failed to do so, as the law stands now I must appoint counsel and hold an evidentiary hearing even if the first lawyer submits an affidavit denying that he or she was told to appeal. Here is a recent such case from Nebraska, although it is not mine, where the Court of Appeals reversed the denial of a section 2255 motion precisely on this basis. Franco v. United States, No. 13-2607 (8th Cir., August 8, 2014).

After I sentence a person I scrupulously comply with the Federal Rule of Criminal Procedure 32(j).  Specifically, I give a detailed description of how and when a defendant may appeal. I make clear that the defendant has 14 days to file the notice of appeal. I use simple words and then ask the offender whether he or she has any questions.  I specifically invite a discussion on the subject. Moreover, before I leave the bench, I tell the defendant that my court clerk will hand the defendant a written summary of what I just told the defendant as soon as I am gone. I add that the defendant can speak with the clerk at that time and she will file a notice of appeal for the defendant if the offender merely asks her to do so. See Federal Rule of Criminal Procedure 32(j)(2).

Here is the notice the defendant and his or her counsel receives from my clerk immediately after I leave the bench:

TO: Each defendant and his/her counsel:

(1) Unless a defendant has given up his or her right to appeal (for example, by signing a waiver in a plea agreement approved by the court), you are notified that every defendant has a right to appeal. Appeal means to have a defendant’s conviction or sentence reviewed by a higher court. A conviction may be appealed because it was obtained in violation of the law. A sentence may be appealed because it was imposed in violation of the law. If a defendant was convicted after a trial, the defendant may appeal the conviction and the sentence. If a defendant was sentenced after a plea of guilty or “no contest,” the right to appeal is generally limited to appealing the sentence.

(2) To start an appeal, a notice of appeal must be filed with the Clerk of the United States District Court for the District of Nebraska. A defendant may file the notice of appeal. Also, if the defendant tells his or her lawyer to file the notice of appeal, the lawyer is obligated to do so. In addition, if a defendant tells a court clerk to file the notice of appeal, the court clerk is required to do so.

(3) A notice of appeal must be timely filed in the district court, generally within fourteen days after the entry of the judgment or order from which an appeal is taken. This normally means that a notice of appeal must be filed in the district court within fourteen days of today’s date. If the notice of appeal is not timely filed, a defendant may lose his or her right to appeal.

(4) Every defendant who is unable to pay the expenses of an appeal has the right to apply for permission to appeal without payment of a filing fee or costs. In addition, every defendant who is unable to pay for a lawyer may apply for the appointment of lawyer to represent the defendant during the appeal at no cost to the defendant. In other words, even though a defendant is poor, the defendant’s poverty need not prevent an appeal.

Receipt of the foregoing notice is acknowledged this day of
, 20 , immediately after sentencing, by:

 _______________________                             ___________________________

Signature of defendant                                      Signature of defense counsel

(The deputy clerk of the court is directed to give a copy of this notice to each defendant and his/her counsel immediately after sentencing. The deputy clerk of the court shall then set forth in a copy of the notice the date the notice was given. The deputy clerk shall then procure the signature of the defendant and his/her counsel on a copy of the notice. The signed copy of the notice shall then be filed in the court file by the deputy clerk.)*

The notice is signed by the defendant and his or her counsel. It is filed in the court file.

At the same time as the foregoing notice is is delivered and signed, defense counsel is additionally handed a copy of Eight Circuit Rule 27C. The lawyer acknowledges receipt of the rule, and that acknowledgment is filed in the court file. Here is the form:



(a) Notices of Appeal. Retained counsel in criminal cases, and counsel appointed to represent a party pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A, Federal Rule of Criminal Procedure 44, or the inherent power of a federal court, shall file a notice of appeal upon their client’s request. Defendant’s trial counsel, whether retained or appointed, shall represent the defendant on appeal, unless the Court of Appeals grants permission to withdraw.

(b) Motions to Withdraw. A motion to withdraw on the ground that in counsel’s opinion there are no non-frivolous issues to be urged on appeal must be accompanied by a brief prepared in accordance with the procedures enunciated in Anders v. California, 386 U.S. 738 (1967), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987). A motion to withdraw on any other ground will only be granted for good cause shown, and will rarely be granted unless another attorney has entered an appearance for the defendant on appeal or another attorney has agreed to represent the defendant on appeal and the defendant has consented to the appearance of that new attorney.

As defense counsel, I acknowledge receipt of 8th Circuit’s Rule 27C.


Now, here is my problem. If the defendant later claims that he or she told defense counsel to file a notice of appeal, but that claim is not true, is there anyway to avoid the time and trouble of appointing a lawyer to represent the defendant and then conducting an evidentiary hearing?  I ask this question because: (1) I trust most criminal defense lawyers to file a notice of appeal if directed to do so; (2) there is little incentive for offenders not to lie about whether they instructed their counsel to appeal and in fact I have a strong suspicion that the prison “writ” writers frequently make this type of allegation without specifically consulting the prisoner for whom they are writing the 2255 motion; (3) allowing an offender to attack defense counsel based upon nothing more than the say so of the offender seems wrong to me since the consequence to the lawyer is significant–getting dragged into court to testify when the claim alone has the real potential to sully the accused lawyer’s reputation; (4) the consequences to the court are not small either, as the requirement of an evidentiary hearing requires under the rules the appointment of yet another lawyer (Rule 8(c) of the Rules Governing Section 2255 Proceedings) and the evidentiary hearing and subsequent proceedings suck up large amounts of time; (5) almost never is the defendant’s claim upheld after an evidentiary hearing (which in our court would be held by a magistrate judge with a follow-up a report and recommendation to me) since history proves that most lawyers in fact comply with their legal and ethical obligations to file notices of appeal when directed to do so.

Is there any solution to avoiding these frequently fruitless hearings that do little but harm the reputations of conscientious defense counsel and waste time and money? I would appreciate the advice of defense counsel who confront this problem on a regular basis.


*If the defendant cannot speak English, the interpreter reads the document to the defendant in his or her native tongue.

PS Thanks to Elaine Mittleman for stimulating my thoughts on this subject.

A judge and a prosecutor “collude” to do the right thing

A helpful reader has called to my attention this article that appeared yesterday in the New York Times involving Loretta E. Lynch, who is the United States attorney for the Eastern District of New York. We hear a lot about prosecutorial abuse. We seldom here about prosecutors doing the right thing. In the unique case mentioned in the article which involved a crime of violence, you will see a fine example of prosecutorial discretion used to treat an offender–who made a stupid mistake by rejecting a plea agreement–with a degree of fairness that is remarkable.  You shouldn’t be surprised to know that District Judge John Gleeson plays a prominent role in this story.*


A thoughtful reader commented:

Interested in whether you have any concern, as a judge, that the U.S. Attorney had no more legal authority to undo this injustice than did the judge. At least, I can think of none. Unless I am missing something, all the U.S. Attorney did or agreed to do here is (a) not object to the judge’s doing something unlawful — again, otherwise right and just, but nevertheless, unlawful — and then (b) not appeal. The underlying injustice arose from a technically correct application of a stupid, cruel and badly written law (18 USC 924(c)), aggravated by one of the worst, hypertechnical, and thoroughly obtuse statutory construction decisions in modern Supreme Court history, Deal v. United States, 508 U.S. 129 (1993). Deal was authored by Justice Scalia, but it was a six-vote majority. Deal mandated (quite unnecessarily and mistakenly, as Justice Stevens’ dissent shows) this sort of “stacking” of consecutive sentences.

Comment by pdgpa, July 29, 2014 at 9:45 AM (italics added by Kopf).

I read Judge Gleeson’s (Gleason) opinion. He used a Rule 60(b) motion to reopen a prior 28 U.S.C. § 2255 proceeding  (Keep in mind that section 2255 proceedings are technically civil in nature.) Rule 60(b)(6) provides that the judge may grant relief from a final judgment “for any other reason that justifies relief.”  Since the United States consented to the vacation of counts of conviction that were “stacked” for sentencing purposes, and section 2255 explicitly gives district judges the power to vacate sentences that “are otherwise subject to collateral attack,” Judge Gleeson arguably had the legitimate power to vacate the underlying sentence.  While reasonable minds can differ about whether Holloway should catch a break while many others who are similarly situated will not enjoy similar treatment, it appears that Judge Gleeson acted lawfully.


*Long ago, I unsuccessfully tried a similar tactic in the infamous case of Hamedah Hasan where she too made a horrible mistake, rejecting a plea agreement, and ending up with a mandatory life sentence (later reduced through no help of the United States Attorney or the Justice Department). See, and here.

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


*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.

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