The difference between dumb and stupid

As the Republicans, led by a Canadian born reincarnation of Genghis Khan (but without the good looks) and another guy who apparently paints himself with day-glow orange makeup,  threaten to shut down the government, I have a problem. I am forced to consider what I will do with a complex criminal case scheduled for a jury trial starting one day after the federal budgetary deadline. Will I have money to pay jurors? Will the staff be furloughed? Will I have US Marshals?

Now, I should be fair. God knows, judges are supposed to be fair (but never active). The Republicans threaten to destroy the world as we know it, but, truth to tell, the Democrats, like the insipid “little person” who runs the Senate, are happy as clams at the prospect. That way these progressives (what an idiotic name) can blame the Republicans for starving puppies. With a little effort, I can almost hear the scripted but horribly delivered lament from that strange lady who used to run the House.

So, is there a moral equivalency between these two fractious factions? I don’t even know what the hell that question means. But, I do agree with Lewis Black that: “The Democrats are dumb and the Republicans are stupid. The difference between dumb and stupid is dumb isn’t funny. Stupid is seriously funny.”  So, instead of fretting over the plight of jurors, I am going to sit back, scratch my ever expanding ass and laugh. By the way, that’s what old RINOs do.


The enormous but hidden challenge of the pro se docket

photo (2)[T]he right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel . . . .” The right is currently codified in 28 U.S.C. 1654.

Faretta v. California, 422 U.S. 806,  812-813  (1975).

One of the purposes of this blog is to realistically describe what goes on in the life of a federal district judge.  In this post, I write about the hidden challenge of dealing with pro se cases.

At the beginning of their chapter on federal district judges, Epstein, Landes and Posner write that a “substantial fraction of cases filed in the district courts (many by persons who do not have legal representation) have no possible merit and so really are just noise in the data.”  Lee Epstein, William M. Landes and Richard A. Posner, The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, at p. 207, Harvard University Press (January 2013) (emphasis added).   While they are correct to say that pro se cases often lack  merit and, from the perspective of a social scientist, might fairly be dismissed for empirical purposes, a federal district judge cannot so easily ignore that class of cases.

If pro se cases were only a small fraction of the caseload, there would be nothing to worry about.  But that is not the case.  I estimate that pro se cases comprise 25% of the typical civil docket of the typical federal judge.  That’s right, 1 in 4 civil cases are pro se.  Many believe the real ratio exceeds 1 in 3.  See, e.g., Kory Schneider, Illiberal Construction of Pros Se Pleadings,  159 University of Pennsylvania Law Review 585, 592 (2011) (37%).

The federal judiciary has reacted to this massive case load by devoting substantial resources to pro se cases.  In 2013, the judiciary will allocate funding for 328 pro se staff lawyers* each working an assumed 1,763.04 hours per year on cases.  Memorandum from the Director of the Administrative Office of the United States Courts to District Chief Judges, FISCAL YEAR 2013 PRO SE LAW CLERK ALLOCATION, (October 22, 2012).  On average, pro se prisoner civil rights cases are assumed to take 13.4 hours of the lawyer’s time, and pro se habeas corpus cases are assumed to take 8.3 hours.

Although one could define the pro se docket to include any civil case filed by a pro se party, the conventional way federal courts define the pro se docket is to key on whether the person filing the complaint or petition is or was a prisoner.  Note that habeas petitions challenging state convictions and section 2255 motions challenging federal convictions are civil in nature even though a criminal conviction is at the heart of the dispute.

I manage the pro se docket for the District of Nebraska,  and supervise our two pro se staff lawyers.  Gabi and Ryan are our pro se staff lawyers.  (Gabi, the lead pro se staff attorney, is pictured above.)  Both graduated law school with top grades.  They are great lawyers and wonderful writers. ** Unfortunately, and as a result of the budget disaster, Ryan (like 37 other pro se staff lawyers nationwide) has been rewarded for his five years of hard work with a pink slip, effective December 31, 2013.

The job of pro se staff lawyers (sometimes called pro se law clerks) is to work with the judges to manage and resolve the huge but hidden caseload that is the pro se docket.  Unlike the typical law clerk, pro se staff lawyers are specialists who often intend on making a career of working for the federal courts.  They must keep up on and master arcane aspects of federal law.  Because much of their work also involves questions of deference and comity with respect to the state courts, pro se law clerks become experts on state procedural law.  Additionally, they must act as case managers constantly worrying about such things as progression orders, the age of motions and the time to disposition of cases.  These lawyers work under constant and grinding pressure.  It is very demanding work.

When dealing with the pro se docket, the task of the federal district judge and staff attorney involves finding tiny needles in mountainous haystacks while disposing of the leftover hay in timely manner.  Even though the vast majority of cases are found to lack merit, every case must be treated with care.   On the other hand, pro se litigation can do real harm by forcing defendants to expend money to defend the silly.  Thus, the judge and the pro se staff attorney must work diligently to see to it that pro se litigants do not abuse the process. Finding the right balance, requires skill and experience.

They may only be “noise in the data,” but pro se cases comprise a substantial part of the daily life of a federal district judge and his or her staff.  If one wants to understand what federal district judges actually do, knowledge of the pro se docket is essential.


*This includes staff lawyers who devote their time exclusively to death penalty cases.

**They are also nice people with diverse and interesting backgrounds.  For example, and although an American citizen by birth,  Gabi, a fluent Spanish speaker, spent her summers as a child with her grandparents in an extremely remote part of Mexico.  In her spare time, Gabi loves to read the poetry of Pablo Neruda.   I had the privilege of marrying Gabi and Raul.  Raul is a lawyer too.

Working for free, but not cheaply

Photo credit:  pcambraf's photostream per Creative Customs license.

Credit: pcambraf’s photostream per Creative Commons license.

As a senior judge, I could quit today, and the government would continue to pay my salary.  Or, if I like, I can continue to work even though I am not required to do so to receive my salary.

Like many others (who are far better judges than me), I work for free.  I don’t deserve a pat on the back–I like what I do and am happy to do it.

But, as the sign says, I don’t work cheaply.

This afternoon’s activity in the United States Capitol was the last straw.  I am compelled to speak out bluntly.*

So, to the crazies in Congress, primarily, but not exclusively, members of the Republican party, I say the following:

Today, Congress approved a budget fix so that you and others can fly around the country secure in that knowledge that the air traffic controllers will be at work rather than on furlough.   Then you scurried away to catch your flights home.  Yet you are knowingly and wilfully failing to appropriate the funds necessary for the federal courts to perform their core functions.  What is it about the word hypocrisy that you don’t understand?  Have you no shame?


*Unlike active judges who are constrained by all sorts of things, I don’t have much to lose by speaking my mind.

Congress is herewith warned

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days.  Here is the missive received today from our Clerk’s office:



The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates1:
May 3 May 17 May 24 June 14 June 28 July 5 July 19 August 2 August 16 August 30
The Nebraska Federal Public Defender’s Office staff will be furloughed on these dates, and the Defender’s Omaha and Lincoln offices will be closed. In the event the U.S. Attorney’s Office is required to furlough its staff, the same date(s) will be used.

1.  The only exception to this directive is when the assigned judge specifically requires the hearing or trial to be held.

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD.   If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations.  I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished.  If a banana republic is what members of Congress want, I may help them get it.


The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole

(Photo credit:  Alex E. Proimos' photostream pursuant to a creative commons license,

(Photo credit: Alex E. Proimos’ photostream pursuant to a creative commons license,

Years ago, I had the privilege of drafting the plan that created the Federal Public Defender for the District of Nebraska.  Thus, it was, with utter despair, that I learned yesterday that the FPD for Nebraska will let go his senior criminal investigator (who is located in Lincoln) because of the dire budget situation.

The investigator, with 18 years of service to the FPD and additional years of service before that as a lieutenant in a metropolitan police department, is among the best and brightest.  He is the epitome of integrity, professionalism and just plain common decency.  He is universally liked and respected by everyone including his former law enforcement colleagues.

Because federal defenders are part of the judiciary, they are directly impacted by the crushing reductions in funding that the judiciary faces as a result of the sequester.  Indeed, it appears that Congress has singled out the Defenders (and Criminal Justice Act panel attorneys) for special damage.

I have been with the federal courts now, in one capacity or another, for over 25 years.  I served as chief judge and at other times I chaired our budget committee.  In short, I have “been around the block” when it comes to budget crisis.  I don’t scare easily.

But this I know with absolute certainty: Never before have the federal courts faced anything like the impending disaster brought about by the failure of Congress to appropriate the necessary pittance (less than 1% of the national budget) that is required to run the courts including most especially the Federal Public Defenders.

Judge Julia Gibbons, speaking for the entire judiciary, recently told Congress that “the Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the Constitutional mission of the federal courts.” Funding Cuts Will Compromise Federal Courts, Judges Tell Congress, (March 20, 2013)* (emphasis added).   She was not crying wolf.

There is no other way to look at it.  Congress, with its psychotic fixation on ideology, has begun to intentionally trash the Constitution, the federal judiciary and most particularly the Federal Public Defenders.  Unless they prefer a banana republic, where the rule of law belongs only to the corpulent political elite, it is time for the citizens of this country to wake up.


*Statement of the Honorable Julie S. Gibbon, Chair Committee on the Budget of the Judicial Conference of the United States Before the Subcommittee on Financial Services and General Government of the Committee on Appropriations of the United States House of Representative (March 20, 2013).

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