D-Day and the insurance man

The 71st anniversary of World War II’s D-Day invasion was remembered Saturday at a cemetery in France overlooking Omaha Beach.  Thousands of young American boys died there. Thousands more were badly wounded as our troops took the beaches and proceeded north to Germany.


Lawyer Elaine Mittleman, who is a regular reader and sometimes guest writer for this blog, suggested that we ought to remember those heroic kids and those other heroic youngsters who fought their way through Europe and survived to take their places in American civic life. She was correct to do so, and I appreciate her prompting.

Elaine enclosed an obituary from the father of a friend of her’s. It is worth quoting from that obituary:

Charles Gardner Beatty, 89, passed away at 12:40 p.m. Saturday, Dec. 22, 2007, at his residence. Mr. Beatty retired in 1981 as president of Hobbs Miller Insurance. His insurance career began in 1954 and he remained as chairman of the board of Hobbs Miller Insurance and Beatty Insurance Inc. after his retirement.

Charles Gardner Beatty

Charles Gardner Beatty

He was a 1936 graduate of Shields High School. He was a World War II veteran serving as a tank commander with the 746th Tank Battalion. He landed on Utah beach on D-Day with the Allied Forces at Normandy. He took part in the Battle of the Bulge and other combat until he was injured so seriously he had to be shipped back to the US for treatment. While in combat he received the following citations, European-African Middle Eastern Theater Ribbon with four bronze service stars, one Bronze Arrowhead for the D-Day Invasion, a Bronze Star medal with one Oak Leaf Cluster, a Purple Heart with three Oak Leaf Clusters, a World War II Victory Medal, an American Theater Ribbon, and the Croiz de Guerre with a Silver Star from the French Government. While at Schick Orthopedic Hospital in Clinton, Iowa [for two years], he met his future wife, Herta Gutzeit. He was separated from the service on Oct. 17, 1947, as a captain.

Mr. Beatty was a member of First United Methodist Church of Seymour and an associate member of United Community Church, Sun City Center, Fla. He was a life member of the Seymour Elks Club, Seymour Eagles Club, American Legion, Jackson Lodge 146 F&AM, Yorkrite bodies, Murat Shrine, Scottish Rite Valley of Indianapolis and a recipient of the Honorary Thirty Third degree of the Scottish Rite.

Prior to his retirement Mr. Beatty was active in many community and civic organizations including, Seymour Lions Club (Past President and Keystone Award Member), Seymour Chamber of Commerce (Past board member and Treasurer and recipient of Chamber’s Citizen of the Year Award), Boys Club of Seymour (Past President, Honorary Director, Past Chairman of Hoosier Area Council, Bronze Keystone Award winner and recipient of Man and Boy Medallion), Jackson County United Fund (Past President and Drive Chairman), Independent Agents of Indiana (Past member of Board of Directors and recipient of Larry McClain Community Service Award). He was former recipient of Seymour Jaycees “Boss of the Year” award. He served as a board member and secretary of all the Seymour Community School Building Corporations from the Seymour High School through the Seymour Middle School building projects.

Born July 23, 1918, he was the son of Guy and Mary Gardner Beatty, both of whom preceded him in death. On June 8, 1946, he married his army nurse, Hertz Gutzeit. They were married 61 years and she survives.

Charles Gardner Beatty was an ordinary man who did extraordinary things during World War II. He returned to civilian life, after having been grievously wounded. He built a meaningful life. We should remember Charles as an exemplar of all the young men and women who did so much to make this world a better place.*


* In like manner, we should also remember Judge Heaney and the Silver Star. We need to remember him for the extraordinary courage he displayed as an Army Ranger during two days in June, 1944 and for so much more.

President Clinton nominates Judge Richard Arnold to serve as Associate Justice of the Supreme Court

With many, many thanks to Elaine Mittleman who downloaded and shared with me a file pertaining to the late Judge Richard Arnold from an October 10, 2014 release of information by the Clinton Library, I am delighted to reproduce a draft of a speech prepared for President Clinton to use when nominating Richard to a seat on the Supreme Court. The time frame is May of 1994–the precise date of the e-mail appears to be May 13, 1994.

The draft speech was evidently prepared by David Dreyer and was sent to Donald A. Baer and Robert O. Boorstin. These men were all White House aides to President Clinton and served on his communications team. The subject line of the e-mail is interesting and states: “Updated Version. Don’t Assume a Decision, It’s Chinatown.”

Of course, President Clinton did not nominate Judge Arnold on May 13, 1994 or at any other time. Richard had long suffered from lymphoma, and the President reluctantly decided that Richard’s health was too much of a gamble. Instead, President Clinton announced Stephen Breyer as Justice Blackmun’s replacement on May 13, 1994, with the United States Senate confirming Breyer on July 29, 1994.

What follows is the President’s speech on Judge Arnold that was never given. Page one:

jpeg.Clinton Library  Judge Richard Arnold 2006-0188-F  10.10.14_Page_18Page two:

jpeg.Clinton Library  Judge Richard Arnold 2006-0188-F  10.10.14_Page_19

Page three:

jpeg.Clinton Library  Judge Richard Arnold 2006-0188-F  10.10.14_Page_20

As I have said before, and with no disrespect to Justice Breyer, it is a tragedy that Judge Arnold never had the opportunity to sit on the Supreme Court. Our nation is worse off as a consequence.

If you don’t believe me, please watch this video of the “The Art of Judging,” an address by Richard before the Eighth Circuit Judicial Conference, held on August 8, 2002 in Duluth, Minnesota. If nothing else, watch the first part of the video (starting at about two minutes) where Richard tells the story of his confirmation hearing as a district judge. As much as anything, that vignette tells you all you need to know about Richard and why other judges throughout the nation revered him.



Like the German Judge Lothar Kreyssig, a Czech lawyer by the name of Dr. Egon Schwelb was a hero too

Judge Frank E. Schwelb of the D.C. Court of Appeals (the equivalent of the Supreme Court of the District of Columbia) recently passed away. Advocates like Elaine Mittleman who argued cases before Judge Schwelb say that he was “wicked smart . . . with a wry sense of humor.” Elaine also noted that “When I thought again of him, I saw some similarities with . . . Chief Judge Kozinski.” Judge Schwelb was a Czech by birth*, and Judge Kozinski is a Romanian by birth. Brilliant, brilliant men.

We should mourn the passing of this interesting man who came to this country (and Yale and Harvard) as a young child chased out of his homeland with his parents by the Nazis. His is a story of how immigrants have enriched, and continue to enrich, our society and the legal profession in particular. Rest easily Judge Schwelb. See his Washington Post obituary here.

While I am sure that his father was proud of Judge Schwelb, that pride was reciprocated by the son for his father. And, it is that story–the story of Dr. Egon Schwelb–that I wish to highlight today. Sometime around 2006, Judge Schwelb gave a fascinating account of his father to the Czechoslovak Government in Exile Research Society. See here.

Told in the Judge’s own words, here is the story of Dr. Egon Schwelb:

  • My father, Dr. Egon Schwelb, was a prominent Social Democratic attorney who handled a lot of what might now be termed civil liberties cases, and who represented, among other clients, anti-Nazi German refugees who fled to Prague after Hitler and the Nazis came to power in Germany. On March 15, 1939, German troops goose-stepped into Prague — I still have some slight memory of that — and on the following day my dad was taken into custody and held at the Pankrac prison.
  • In May, 1939, my father was released, though I have never been able to find out exactly why. My parents were able to obtain British visas and an exit permit, and on August 12, 1939, we travelled by train from Prague through Nazi Germany to Holland. I know that my parents were afraid that we might be taken off the train before we crossed the Dutch border, for events were not very predictable at that time, but cross we did. We travelled in a Dutch ship from the Hook of Holland to Harwich, arriving in Britain on August 13, 1939. The war, as you know, began on September 1, when the Nazis invaded Poland, so we made it by less that three weeks. Those members of our family who did not manage to leave the country, including my mother’s younger sister, perished in the Holocaust. My parents were both of Jewish origin, though not practicing Jews.
  • We spent the first few weeks of our stay in Britain in refugee hostels in Surrey. In late 1939 or early 1940, my parents obtained a flat in Mill Hill, in the northwestern part of London. We were in London during the Blitz, and I collected shrapnel splinters after air raids. Eventually, President Benes named my father to the Legal Council (Pravni Rada) of the government-in-exile. My dad served in that capacity until the end of the war. During his service as a legal adviser to the Benes government, my father sensed that postwar Czechoslovakia would not be a democratic country for very long, and (much to my dismay at the time) my parents decided not to go back.
  • After serving in the United Nations War Crimes Commission from 1945 to 1947, my father was named Deputy Director of the Human Rights Division of the U.N. in 1947.
  • Our family came to the United States in 1947, and lived here ever since. My dad had a very distinguished career and earned the nickname Mr. Human Rights. In 1979, shortly after his death, he posthumously received the Dag Hammarskjold Award for his contributions to peace and human rights. He died just a few months before I was named by President Carter to my first judgeship.

Like the German Judge Lothar Kreyssig, the Czech lawyer, Dr. Egon Schwelb, was a hero too. Our profession should be proud to count these men among us. We can only hope to emulate them in some small measure. But try we must.


*In the “small world department,” my son-in-law Karel holds dual Czech and Canadian citizenship and speaks Czech fluently. With daughter Lisa and their children, Karel teaches in China. Keller’s wife Stacey, residing with Keller and Fletcher in Australia, is also of Czech origin. Her maiden name is the same as Karel’s last name. My late wife and I lived in Wilbur, Nebraska when I attended law school. Wilbur is the “Czech Capital” of Nebraska. We lived in that small community so that my late wife could teach high school French to the Czech kids. By the way, if you have not tasted Kolach, a Czech pastry, you have missed one of the essential joys of life.

Once in a while this blog may do some good

Doug Berman, at his highly regarding sentencing blog, recently wrote favorably about an unpublished Sixth Circuit decision regarding prejudice under the Lafler* and Frye** decisions. See here. In that case, the Sixth Circuit wrote:

[W]e are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence. Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.

SAWAF v. UNITED STATES OF AMERICA, No. 13-5620 (6th Cir., June 30, 2014).

More than a year ago, in a guest post on this blog, Elaine Mittleman, an expert on federal post-conviction motions, flagged this problem in a piece entitled Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post. I followed up with the issuance of a standing order in my cases partially in response to Elaine’s thoughtful commentary. See here. Elaine deserves great credit for seeing this problem, and proposing a practical way of addressing it. I feel privileged to have given her a slightly wider audience for her prescient views. Thanks Elaine.


*LAFLER v. COOPER, No. 10–209 (2012) (Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed).

**MISSOURI v. FRYE, No. 10–444 (2012) (The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected, and that right applies to “all ‘critical’ stages of the criminal proceedings.).

Are “paralegals” feeding on federal prisoners?

We live in a time of unprecedented changes for American lawyers,
probably the greatest changes since the Great Depression. That period saw
the creation of the lawyer’s monopoly through a series of regulatory
modifications. Will we see the same following the Great Recession?
Formally, no. This Article predicts that formal lawyer regulation in 2023
will look remarkably similar to lawyer regulation in 2013. This is because
lawyer regulators will not want to rock the boat in the profession or in law
schools during a time of roil.
Informally, yes! We are already seeing a combination of
computerization, outsourcing, and nonlawyer practice radically reshape the
market for law from one that centers on individualized, hourly work done
for clients to a market of much cheaper, commoditized legal products. This
trend will accelerate over time. The upshot? Formal lawyer regulation
will continue on with little change, but will cover an ever-shrinking
proportion of the market for legal services.

Benjamin H. Barton, The Lawyer’s Monopoly—What Goes and What Stays, 82 Fordham L. Rev. 3067 (May 2014).

Professor Barton might be correct, but this post is not intended to spark a discussion about the shrinking legal market for lawyers–at least not directly. Rather, I want to talk about one of the consequences of that shrinkage. That is, an essentially unregulated market of “paralegals” who may be offering legal services to federal prisoners and harming those prisoners in the process.

28 U.S. Code § 2255 provides a method for a prisoner in federal custody to attack his or her criminal conviction or sentence in federal court.  It is the federal equivalent of the Great Writ. While seldom successful, a section 2255 action stands as the last chance for a federal prisoner to upend a wrongful conviction or sentence. I attach such significance to those motions (they are called “motions” rather than petitions for habeas corpus) that I do them myself and without hardly any assistance from a law clerk. I do this because I was the one who presided over the case, and imposed the sentence, because it is efficient for me to do the original research and writing because I have intimate knowledge of the matter, and because I truly see these motions as very important, even though, as I have said, they are seldom successful. Note that unless the federal prisoner is entitled to an evidentiary hearing, or other special circumstances exist, he or she not entitled to the appointment of counsel. However, there is a form that is available from the Administrative Office of the United States Courts, and the various clerks of court, that serves as clear and concise guide to the prisoner.

This week, I received information from a good friend of this blog, Elaine Mittleman. She also knows a thing or two about section 2255. See, for example, Elaine Mittleman, Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post, Hercules and the umpire (June 1, 2013). See my response entitled: An order of Frye. In any event, last week, Elaine sent me a copy of a document that she received. It is that document that concerns me and it is that document that prompted this post.

The document represents that the author is a “paralegal.” It pertains to a Supreme Court case and § 2255 motions.* Quoting another source (a “law clerk” at a Federal Correctional Institution no less), the document discusses the time for filing a section 2255 motion under the Supreme Court case and whether the decision is “retroactive.” Quoting the law clerk, the document ends with this advice: “The courts are crafty and find all sort of ways to deny proper claims. [F]or this reason, please get yourself experienced help to file your [case name] argument.” (Emphasis added by Kopf.) The document footer then adds the “paralegal’s” name, address, telephone number, fax number, e-mail address and web site. Additionally, it lists the hours when “inmate calls [are] accepted” and when “Spanish speaking calls” will be accepted.

As to the substance of the advice contained in this apparent solicitation, I am dubious. It suggests a deadline for filing, and that deadline may be just flat wrong. It also goes into a discussion of “retroactivity” and that discussion seems to me to miss a very important point.

If, as I suspect, that communications like this one are intended to induce inmates to hire “paralegals” to prosecute section 2255 motions, I am concerned that federal prisoners are being fleeced. For those lawyers who have a federal criminal practice or who do federal post-conviction work I pass along this information for whatever value you care to give to it. Whether you believe legal services should be expanded or not through deregulation, surely we can all agree that federal prisoners deserve protection from incompetents who seek to profit from their misfortune.**


*I have the communication but I will not reproduce it, describe the Supreme Court case which apparently prompted the communication, or elaborate upon the specific legal issues involved. I don’t want to assist the “paralegal” in ginning up work, particularly when the document is based upon advice that may be inaccurate or misleading or incomplete.

**To be specific, Federal Public Defenders, CJA counsel, retained counsel, and post-conviction practitioners would do well to warn prisoners about paying money to “paralegals” regarding the preparation of a section 2255 motions.

Cornelia Groefsema Kennedy, a pioneering Federal District and Circuit Judge, is gone but must not be forgotten

At 90 years of age, Judge Cornelia Kennedy died on May 12, 2014, in Grosse Pointe Woods, MI. The judge was a pioneer. She must not be forgotten.

Elaine Mittleman, a federal criminal defense lawyer with a national practice, is good friend of this blog.  She is also a very proud graduate of the University of Michigan law school. Judge Kennedy graduated from that law school too.

What is fascinating to me is that Elaine began chronicling the judicial life of Judge Kennedy when Mittleman was a law student. In the October 15, 1979 issue of Res Gestae, the University of Michigan Law School Student Weekly, Elaine wrote a long piece about Judge Kennedy, her many accomplishments, the fact that the judge was viewed as a judicial conservative, that President Carter nominated her to the Sixth Circuit, and that the judge’s confirmation hearing was prolonged as liberal groups commenced a “formal investigation” into the judge’s work as a federal district judge and her suitability to serve as an appellate judge.

This long ago article is worthy of preservation for historical purposes, particularly as it chronicles the inception of the transformation of the judicial confirmation process from an inquiry into legal competence into an inquiry dominated by blatant political considerations.  You can read the remarkable article here: Res Gestae Michigan Law School 10.15.79.  Many thanks to Elaine for permission to reprint the article and for her suggestion that Judge Kennedy’s passing deserved attention by the blog.

Here are just a few of the highlights of the life and times of Judge Kennedy:*

  • Cornelia Groefsema was born to Elmer and Mary Groefsema on August 4, 1923, in Detroit. Her father was an accomplished lawyer in Detroit, and her mother later became a law student at the University of Michigan Law School. When Cornelia was just nine, her mother, then a second-year law student, died prematurely. Elmer Groefsema then raised his daughters himself, and he “instilled in them a deep love of the law.” One might honestly say that Judge Kennedy was born a lawyer.
  • Upon graduating at the top of her class from the University of Michigan Law School, Kennedy served as a law clerk for the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. She was the first woman to serve as a law clerk at that prestigious court. (Kennedy’s sister Margaret was the first woman to serve as a law clerk on the Sixth Circuit Court of Appeals.)
  • The judge was a real lawyer, practicing her craft for 18 years. She was then elected to the state bench, only the third woman elected to a court of general jurisdiction in the state of Michigan.
  • Just four years later President Nixon appointed Judge Kennedy to the United States District Court for the Eastern District of Michigan.
  • In 1977, after serving as a district court judge for seven years, Judge Kennedy became chief judge of the Eastern District of Michigan. She was the first woman to become a chief judge of a United States District Court.
  • During her tenure as a state circuit court judge and federal district court judge, Judge Kennedy was the director of the Detroit Bar Association, a member of the Judicial Conference of the United States, and chairperson of the National Conference of Federal Trial Judges—and she was the first woman to hold every one of those positions.
  • President Carter nominated Judge Kennedy to the United States Court of Appeals for the Sixth Circuit in 1979. During her confirmation hearings, Senator Orrin Hatch commented, “by damn you have a lot of qualifications[.]”
  • While on the Sixth Circuit, she also served on the Judicial Conference’s Advisory Committee on Codes of Conduct, the Board of Directors of the Federal Judicial Center, the Supreme Court Fellows Commission, and as a founding member of the National Association of Woman Judges. In 1985, President Reagan appointed Judge Kennedy to the Commission on the Bicentennial of the United States Constitution, where she served for seven years. After 13 years on the Court of Appeals, Judge Kennedy presided over the first all-female, three-judge panel to sit as an appellate court in the circuit.
  • Judge Kennedy’s service to the Sixth Circuit spanned a long period time.  Nominated by Jimmy Carter on April 9, 1979, to a new seat authorized by 92 Stat. 1629, the judge was confirmed by the Senate on September 25, 1979, and received her commission on September 26, 1979. She assumed senior status on March 1, 1999 and remained so until she retired in 2012.
  • in 2011, the Almanac of the Federal Judiciary compared her to Chief Justice William Rehnquist. “‘Word in Cincinnati [the home of the Sixth Circuit] is that she is one, tough, demanding and principled jurist’ who is universally admired and respected by her colleagues even when they disagree with her. ‘Her attitude and values permit no gray areas, and they are too keenly developed to be reshaped by the political process.'”
  • In 1981, Judge Kennedy was one of just two judges seriously considered to fill the vacancy on the Supreme Court caused bythe resignation of Justice Potter Stewart. The spot ultimately went to Sandra Day O’Connor, who later wrote of Judge Kennedy:

She has been a shining example to women across the land in every area. Her work on the bench has been marked by excellent analysis overlaid by common sense. Her volunteer service has spanned every aspect of legal service. She has been a wife and a mother, and a friend and mentor to countless young lawyers, both male and female. She has been a most impressive model for me for a very long time. She is deserving of the highest tribute for her splendid service on the bench for more than 30 years.

(Personal letter to Derek J. Sarafa and quoted in Michigan Lawyers in History–Judge Cornelia G. Kennedy: First Lady of the Michigan Judiciary.  Link provided below.)

In sum, there is no doubt that Cornelia Groefsema Kennedy was a pioneering judge of the highest caliber. We should not forget her.


*Much of this information is derived from a wonderful article written by Derek J. Sarafa, Michigan Lawyers in History–Judge Cornelia G. Kennedy: First Lady of the Michigan Judiciary, published by the Michigan Bar Journal.

Photo credit: Martin Vloet, Michigan Photography. Judge Margaret Groefsema Schaeffer [pictured at right], 92, passed away April 11, 2013, at her home in Farmington Hills, Mich. Judge Cornelia Groefsema Kennedy [pictured at left], 90, passed away May 12, 2014, at her home in Grosse Pointe Woods, Mich. For more, see Katie Vloet, Sisters in Law, Quadrangle (Fall 2012).

Photo credit: Martin Vloet, Michigan Photography. Judge Margaret Groefsema Schaeffer (pictured at right), 92, passed away April 11, 2013, at her home in Farmington Hills, Mich. Judge Cornelia Groefsema Kennedy (pictured at left), 90, passed away May 12, 2014, at her home in Grosse Pointe Woods, Mich. For more, see Katie Vloet, Sisters in Law, Quadrangle (Fall 2012).







Blamin’ It on the ACA

Readers may have seen a trend over the weekend. I have reprinted several pieces written by lay people because I thought they were interesting and provocative and because they were well written. This post continues that trend but highlights a different genre, satirical musical lyrics.

Some may recall Elaine Mittleman’s guest post entitled Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post. Elaine is an experienced criminal defense lawyer with a fascinating family as shown here and here.

Over the weekend, Elaine gave me a tip about her talented sister Ann Elsner, a highly regarded scientist and professor in the School of Optometry at Indiana University. See, for example, here. As a hobby (or distraction), Professor Elsner has been taking drum lessons and writing songs. She has a group of young Bloomington musicians who help her record the songs. The professor has allowed me to print the words to a song she wrote on an airplane trip about the shutdown. Additionally, she just sent me the first cut of the song and a video recording of it showing the young musicians preparing and then performing the song. It is hyperlinked below. Regardless of your politics, the song is clever and the young musicians are certainly talented.

Blamin’ It on the ACA, 

Copyright Ann E. Elsner

Can’t understand how we shut down this way.
Don’t know what’s true, just what the pols say.
People laid off, without any pay.
Let’s get back to work, and I mean today.

But they’re blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
bla-ay-ay-ay amin’ it, (blamin’ it)
On the ACA.

That nasty compliance hangs like a sword
Over my head, it can’t be ignored.
Can’t keep part-timers till order’s restored.
Less work is done, but paperwork soared.

But they’re blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
bla-ay-ay-ay amin’ it, (blamin’ it)
On the ACA. (Oooh Yeah!)

The problems were starting before we were closed.
At 29 hours, workers got hosed.
Don’t deserve healthcare, it must be supposed.
Partial support was never proposed.

Two part time jobs could pool benefits.
The math’s not complex. Let’s use our wits.
Did you lie down and lay off? Then the shoe fits.
It’s time for some push back. Let’s stop the blitz.

But they’re blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
bla-ay-ay-ay amin’ it, (blamin’ it)
On the ACA.

What do we look like to folks overseas?
A powerful nation brought to its knees.
Not by outsiders, but the nation’s trustees.
The real reasons seem too nebulous to seize.
Can’t understand how we shut down this way.
Don’t know what’s true, just what the pols say.
People laid off, without any pay.
Let’s get back to work, and I mean today.

But they’re blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
bla-ay-ay-ay amin’ it, (blamin’ it)
On the ACA.

But they’re blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
blamin’ it, (blamin’ it)
bla-ay-ay-ay amin’ it, (blamin’ it)
On the ACA.

The first cut of the song was just recorded. Here it is on video. The song starts at 1:50.

Thanks to Elaine and Ann for brightening my day. If only Congress were composed of real people.


Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post

I am pleased to provide a guest post from Elaine Mittleman, who has handled appeals in several Courts of Appeal throughout the federal system.  As counsel appointed under the Criminal Justice Act to handle these appeals, Ms. Mittleman’s thoughts about making a record of plea offers are particularly noteworthy.

With thanks for her thoughtful effort, here is a guest post worth reading:

Putting Plea Offers on the Record

I appreciate the opportunity to contribute this guest post. The thoughts expressed here are mine.

In the recent Supreme Court cases about plea bargaining, Missouri v. Frye, 566 U.S. __, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 566 U.S. __, 132 S.Ct. 1376 (2012), Justice Kennedy suggested that the trial court may adopt some measures concerning the plea offer process. One measure is that “formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.” Frye, 132 S.Ct. at 1409.

In Lafler, 132 S.Ct. at 1390, Justice Kennedy noted that the prosecution and the trial courts may adopt some measures concerning the plea offer, which may help ensure against late claims after a trial leading to conviction. He also explained that there are procedures about plea offers currently used by various states.

The plea offer process may differ between state and federal courts. However, Justice Kennedy referred only to procedures in state courts when he suggested that formal offers should be part of the record. The plea offer process in federal courts would benefit if plea offers were put on the record.

Although there are guilty pleas in about 97 % of federal criminal cases, the defendant should be given correct information about the consequences of going to trial. The number of criminal trials in the federal courts from FY 2008 – 2012 was 13,719, which was 3.3 % of the total number [412,107] of cases. The number of criminal trials in the District of Nebraska for FY 2008 – 2012 was 88, which was 2.9% of the total number [3,060] of cases. See United States Sentencing Commission, Statistical Information Packet (available at http://www.ned.uscourts.gov/internetDocs/jpar/SentencingData/NED_2008-2012.pdf).

In light of the Frye and Lafler decisions, the district courts should include in the record information about any plea offer. The courts should ensure that the defendant understands the plea offer. Further, the courts should include in the record the defendant’s decision whether to accept the plea offer or to reject the plea offer and go to trial.

Having information about the plea offer on the record is useful in cases addressing 2255 motions about ineffective assistance of counsel. Many of the issues about ineffectiveness should be easily decided if the district court has ensured that the record reflects the defendant’s understanding of and decision to either accept or reject the plea offer.

Several cases illustrate the advantages of having the district court include a discussion on the record with the defendant about any plea offer. In United States v. Cooper, 891 F.Supp.2d 1071 (D. Neb. 2012), Judge Kopf could rely on the fact that Cooper had represented to him that no one had promised a lighter sentence and that he would be sentenced under the sentencing guidelines. In his opinion, Judge Kopf indicated that he had conducted a lengthy Rule 11 proceeding. Having the detailed record of the plea hearing provided information on which the subsequent 2255 motion could be decided without an evidentiary hearing.

In Toepfer v. U.S., No. 12-13047 (11th Cir. May 13, 2013) (available athttp://www.ca11.uscourts.gov/unpub/ops/201213047.pdf), the trial court advised the defendant, just before the jury was sworn in, about the difference in sentencing between going to trial and pleading guilty. The court explained that, if the defendant would be found guilty of possessing more than 999 marijuana plants, he would be subject to a 10-year mandatory minimum and the court would have no discretion as to the sentence. The court explained that, if the defendant entered a guilty plea, the court could make a finding of fewer than 1,000 plants, which would trigger a 5-year mandatory minimum. The defendant said that he understood the consequences, but still wanted to go to trial. In a subsequent 2255 proceeding concerning ineffectiveness, the trial court’s admonition before trial provided support for the finding that the defendant was not prejudiced because he had no intention of pleading guilty.

A defendant should be advised before he goes to trial of the effects on the likely sentence of his decision to go to trial instead of accepting a plea offer. Having the district court advise the defendant about the potential sentencing disparities and loss of credit for acceptance of responsibility can help ensure that defendants understand and take seriously the stark differences in sentences that result from the decision to go to trial.

Defendants are carefully advised of the effects of their decisions to plead guilty. Defendants should similarly be advised of the effects of their decisions to go to trial and thereby face a longer sentence if convicted. The practice of providing the defendant with sufficient knowledge to make an informed decision would provide other benefits. The defendant’s decision to go to trial results in an extensive use of judicial and other resources. In this period of budget restrictions, a defendant’s decision that may greatly increase costs should be based on correct information, instead of possibly faulty assumptions.

As Justice Kennedy noted in Frye, 132 S.Ct. at 1407, a plea agreement can benefit both parties by conserving valuable prosecutorial resources and by allowing defendants to receive more favorable terms at sentencing. The court also benefits by reducing the burden on the judges and court staff from conducting lengthy trials.

There are also advantages to putting on the record the specifics of the plea offer. In light of the extensive plea bargaining, transparency would be increased if plea offers were on the record. Further, having a record of the plea offer would minimize disputes about whether and when a plea offer had occurred. Presumably, many ineffectiveness claims could be easily resolved by referring to the plea discussion in the record, instead of requiring an evidentiary hearing in a 2255 proceeding.

The federal courts and the participants in criminal cases would benefit greatly if plea offers were placed on the record.

Elaine Mittleman

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