I am going to kill you!

I suspect that if you took a survey of federal trial judges, you would find that many of them have received threats. Most of the time those threats are not serious. Of course, the problem is that you never know.

02On February 28, 2005, federal judge Joan Humphrey Lefkow returned home to find the bodies of both her husband and mother in the basement of her home on the North Side of Chicago. Both Michael F. Lefkow, 64, and Donna Humphrey, 89, had been shot multiple times. The Cook County medical examiner’s office stated that the victims were killed with .22 caliber shots to the head. No weapon was found at the scene, but two .22-caliber casings were recovered; evidence of a break-in was found as well. Initial suspicions focused on the possibility that hate groups were involved. On March 4, the FBI announced a $50,000 reward for information leading to the identification of anyone involved in the slayings. On March 8, investigators announced that DNA samples were obtained from a cigarette butt found inside the kitchen sink. Further evidence was recovered in and around the home, including a fingerprint, a bloody footprint, and a soda can.

On March 10, 2005, the Chicago Police Department and federal agents announced a possible break in the case. According to investigators, a van was stopped during a traffic stop in West Allis, Wisconsin, at 6 p.m. on March 9. As West Allis police officer Rick Orlowski approached the vehicle, the driver, identified as electrician Bart Ross, shot and killed himself.

Later that night, a suicide note was found in the van which admitted to the murders of Lefkow’s husband and mother, providing details about the crimes which would have been known only to the actual murderer. Ross was a plaintiff in a medical malpractice case that Lefkow had dismissed.

Investigators also found over three hundred .22 caliber shells in the vehicle, casings of the same caliber that were found in the Lefkow home. DNA evidence from Ross matched the cigarette butt found in Lefkow’s home. Ross also sent a handwritten letter to a TV station describing breaking into the Lefkow home with a plan to kill the judge.

Because of the Lefkow tragedy, any federal judge who wants one is provided with a rudimentary home security system.  We have one installed in our home. Frankly, it is a pain in the ass, but I know that my wife, Joan, feels better about being home alone knowing the system is in place. Note to reader: Joan is not afraid of anything, but she is not an idiot either.

Perhaps because I am bull-headed, I have left our name, telephone number and address in the telephone book. I don’t vary my route to work despite the suggestion of the resident judicial security specialist with the United States Marshals Service. Aside from the .22 rifle that I use to plunk the damn rabbits in Joan’s garden, I have refused the suggestion that I purchase and learn to shoot a handgun. None of this is bravery on my part. Rather, I insist upon living a normal life and most of the security tips seem over the top. Have I ever been seriously threatened? Frankly, I don’t know. But, I will give you four examples:

♦ Around 1990, when I was dating Joan, a friend of ours died who was a well-known trial lawyer. He lived in Kearney, about 200 miles west of Omaha where I served as a US Magistrate. I told Joan, who lived in Lincoln, that I would pick her up and we would drive out to the funeral. The evening before our trip, I lectured on the death penalty at the Creighton Law School. One of my daughters who was looking after Keller that evening received numerous telephone calls that were hard to understand but seemed threatening. That night when I returned home, she told me about the calls. In the morning, I called the Marshals and filled them in. I thought nothing more about it, and left for Kearney. When I arrived in Kearney, I noticed two US Marshals. It turned out that a few days earlier I had issued a writ to pick up some farm equipment owned by a member of the local Posse Comitatus group. When the Marshals checked my docket after I had reported the telephone calls, they became very concerned that the telephone calls may have come from that group, and they immediately notified the FBI* and sent two Marshals out to Kearney to follow us around until we arrived safely back at our homes. When I arrived at my residence that night, after dropping Joan off in Lincoln, I found the house filled with FBI agents and US Marshals.

A recording device was attached to the phone, the kids had been removed early from their schools, and our housekeeper was wide eyed. While nothing ever came of it, for the longest time Keller, who was then 10, wanted to become an FBI agent. The senior FBI agent who had been in our home was very kind to Keller and he went out of his way to explain what they were doing and why. Keller thought the world of him.

♦ On November 4, 1994, I began my first foray into the abortion morass.  A women had been raped, and a doctor performed an abortion of the fetus. The doctor then sought reimbursement  pursuant to the Nebraska Medicaid law. Nebraska refused to pay.  I granted relief to the doctor, and enjoined Nebraska from refusing to pay such claims. See Orr v. Nelson, 902 F.Supp. 1019 (D. Neb. 1994) (“Virtually all courts that have considered the issue have concluded that the 1994 Hyde Amendment preempts conflicting state law so that a state may not prohibit funding for abortions in cases of rape or incest while the state continues to accept federal Medicaid funds.”).

That decision was not popular, and it got a fair amount of publicity. About five months later, and on April 19, 1995, Timothy McVeigh blew up the federal building in Oklahoma City. The official investigation saw FBI agents conduct 28,000 interviews, amass 3.5 short tons (3.2 t) of evidence, and collect nearly one billion pieces of information. Somewhere in that mass of information are my discussions with the FBI. Rumors abounded that the Omaha federal building, and perhaps the Lincoln federal building, had also been selected as potential targets.

Our Federal Public Defender, David Stickman, represented a client who had recently been held at the federal facility in El Reno, Oklahoma. David reported to the FBI, so I was told, that his client, who David refused to name without his client’s permission, had information about the blast including the fact that I might have been a target, probably because of my earlier abortion decision. The FBI discussed this information with me, and told me that unless Stickman cooperated that they would arrest him as a material witness. They asked me to lean on David, and I refused. I urged the FBI to calm down, but they were not about to do so. To this day, I am not sure exactly what happened, but I later learned that David’s client agreed to speak with the FBI, probably in exchange for a potential cooperation deal. As it turned out, the client’s information had a ring of truth to it but was based upon rumor and speculation. I have always held Stickman in high regard, and this incident, particularly his willingness to go to jail if need be, only buttressed that respect.

♦ In 2004, I declared the federal “partial-birth abortion” statute to be unconstitutional. See Carhart v. Ashcroft, 331 F.Supp.2d 805 (D. Neb. 2004). Earlier, I done the same thing regarding Nebraska’s “partial-birth abortion” statutes. Both cases ended up in the Supreme Court. When I issued the decision on the federal statute, I was inundated by e-mails at my unpublished personal government e-mail address. How the writers got access to that e-mail address is unclear, but there is reason think that a right-wing web site obtained the address somehow and broadcast it the readers of the site.

The e-mails were almost uniformly nasty, but also frequently funny in a twisted sort of way. That prompted me to put together a “top ten list” of the dumb and dumber ones for circulation to my colleagues. For example, one of the writers proclaimed that my decision made the writer “embarrassed to be a Husker fan.” By the way, Wisconsin slaughtered the Huskers yesterday, with Melvin Gordon running for 408 yards against the vaunted Husker defense. That was not my fault.

In any event, one e-mail caught my eye. It was explicit. The author was going to kill me. I turned the e-mail over to the US Marshals, and they in turn gave it to the FBI. Since the poor guy who wrote the e-mail did nothing to hide his address, it was a simple matter for the FBI to find the fellow. I later learned that two agents interviewed the writer who was a decent man with a family and a good job. He apologized over and over for his impulsive gesture and, with a stern warning from the FBI, that’s where it ended.

♦ Three years or so ago, I begun to have trouble sleeping in my bed. My left leg and hip hurt like the devil. So, I took to sleeping in a chair in the family room. I am fairly certain that this was a precursor to the blood clots and cancer that later developed. Sleeping fitfully in the chair one early morning, I heard someone trying to get through the locked front door. A fairly big guy was banging and leaning heavily on the door. I flipped on the lights, and the fellow staggered back. I opened the door and told him to get the hell gone. He swore at me, but eventually left. I called the police, and two young female officers showed up in two separate cruisers. I told them what had happened, and they left in an effort to find the guy. And then a police sergeant showed up too. He asked me to get in his cruiser and took me several blocks from our home, where the other officers were putting handcuffs on a man. I was able to identify the man, and the sergeant took me back home. Along the way, he told me that the two female officers were rookies and he had been dispatched to my home because the dispatcher’s computer screen flashed an alert that I was a federal judge, and he was sure his captain would want a full explanation.

By the time I got home, one of our Deputy US Marshals was there. Even though the putative intruder was in custody, the Deputy Marshal carefully walked around the home looking into bushes and such with his flash light until he was sure that no one else was there. I subsequently learned that the guy had a criminal record, but was drunk out of his mind when he tried to get into our home. When he sobered up, he said that he thought he was at his apartment and he believed his roommate had locked the door. He entered a plea to disturbing the peace. The Marshals concluded that the guy was harmless.

So, what should you make of this? Probably nothing. Stuff like this goes with the job of being a federal trial judge. That is easy for me to say when the fine men and women from the US Marshals Service, the FBI and the local police take these matters very seriously.


*The US Marshals have the responsibility to safeguard judges. The FBI is called into handle any necessary criminal investigation.

iPhone irony

The Washington Post is carrying two stores of interest to iPhone users. All the federal judges in Nebraska are provided with iPhones (4s) for work and, in my case, play. The first story recounts that the FBI Director went wacko about the new Apple operating system (iOS 8.0 plus subsequent iterations) because it is encrypted in such a way that law enforcement officers can’t easily get into Apple products. The second Washington Post article recounts that if you downloaded iOS 8.0 or 8.1 to your new iPhone 6 or iPhone 6 Plus the phone no longer works as a phone–it becomes a really expensive reminder that Steve Jobs is dead.* We judges have been told not to download the new operating system until our IT people give the OK.

Do any of you see the same amusing irony that I see? Delicioso.**


*Apparently, iOS 8.2 issued a day or so ago fixes these problems. See here.

**If you find references to oral sex disconcerting, do not look up this word in the Urban Dictionary. Substitute “schadenfreude” instead–Germans are far more repressed. Trust me, I know.


On being vetted

One reader suggested that I might add some posts on what is like to being vetted to become a judge. I think that might be of some interest.  So, for the next several days, I will post pieces about what happened to me in the vetting process.

I have been “vetted” four times. Once by our Court with the assistance of the FBI when I became a magistrate. Twice by the White House when I was considered for the position of district Judge. And, once by Senator Chuck Hagel for a circuit judge position.

The day after Christmas in 1986, and after the FBI was done with me for the position of magistrate judge, my wife died unexpectedly while we entertained a client who had just gotten out of prison. Since my wife was perfectly healthy or so everyone thought, our wonderful friend and family doctor urged an autopsy. He said it was particularly important to know whether there was something genetic going on. I agreed.

The autopsy came back. My wife had idiopathic myocarditis. Essentially, this is an inflammation of the heart that interferes with that organ’s ability to function. Not infrequently, young men and woman in the 40s just fall down and die without any symptoms to speak off. That’s exactly what happened to my wife in the kitchen of our home as she was gathering more to eat.

I don’t remember when, but around the time the autopsy was complete, I received a letter from the Special Agent in Charge at the Omaha field office of the FBI. He expressed his condolences for the death of my wife due to idiopathic myocarditis.

The only way the SAC could have known of the precise cause of death (because the death certificate showed only “heart failure”) was for him to have read the autopsy report. I had certainly signed all the waivers necessary for him to obtain whatever he wanted at the beginning of the FBI inquiry. After reading the letter, I was impressed with the FBI thoroughness and “wink and a nod” kindness of telling me that the FBI knew exactly the cause of death and there was no concern. Sometimes, being “vetted” is sad.





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