At a loss for words

Not surprisingly, a “federal judge Thursday prohibited Oklahoma officials from certifying the results of a 2010 statewide election that approved a constitutional amendment to prohibit state courts from considering international or Islamic law when deciding cases.”  See also How Appealing (posted at 08:24 AM, August 16, 2013).

As I thought about the poor federal trial judge who was assigned to this case, I struggled for words to describe my feelings.  Then I saw the following which perfectly captures my sentiments:

Photo credit: TRF_Mr_Hyde per Creative Commons license.

Image credit: TRF_Mr_Hyde per Creative Commons license.

RGK

The best gift I ever got from a convicted killer

If, over a long career, you sentence a lot of people to prison, several things can happen to you.   Most of them are bad.  Here’s a short list of some of the bad things:

*  You can begin to see offenders only in numerical terms.  “What’s the base offense level, criminal history score and sentencing range?  Next!”

*  Unless you are very careful, you may become inured to the horrific impact that prison sentences have on offenders and their families.  “You say your parental rights will be terminated if you go to prison, well, they’ll be better off anyway.”

*  You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.

*  With a despair akin to that found in the best of Richard Pryor’s stand-up routines, you may find yourself making jokes with punch lines about the futility of rehabilitation.   “Say, did you hear about the guy who went to prison, was rehabilitated and came out an even better monster?”

All of these things are unconscious. If they weren’t, you would be one sick puppy.

Now, this must not become a pity party.  I have a hell of good gig.  I get paid decently, and the pension is great. People call me “judge” and the bowing and scraping I get with a snap of my fingers is a nice extra perk.  That said, if you care about doing a good job when you sentence people, you better try to find an antidote for the creepy things I have just described.

For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.

Tommy Gene got into a bar fight in Cozad, Nebraska when a young Hispanic kid provoked him.  One thing led to another, and Tommy Gene stabbed the kid in the heart about three times.  The young man died, and Tommy Gene was convicted of murder.  Ultimately, he was sentenced to 30 years in prison.

In the late 1970s, I was appointed to represent Tommy Gene in a state post-conviction action.  To make a very long and fairly complex story short, I got Tommy Gene’s sentence reduced by half and this made Tommy Gene immediately eligible for parole.

After the trial judge refused to give Tommy Gene relief on the sentencing question, I convinced the Nebraska Supreme Court that the trial judge had been too tough on Tommy Gene when he gave him 30 years in prison.  If you feel the need to read more, see State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (Neb. 1978) (Although sentence of imprisonment of defendant convicted of second-degree murder was required in view of serious nature of crime, where defendant had no significant criminal record, crime was unplanned and provoked by victim, defendant exhibited willingness to work at honest labor, was not addicted to alcohol or narcotic drugs, and his prison record provided evidence that extended period of incarceration was not required to rehabilitate him, term of imprisonment of 30 years was not warranted and would be reduced by Supreme Court to term of 15 years).

When I represented Tommy Gene, I spent a lot of time with him.  I really got to know him.  I learned that he had been born in Arkansas, that his family had abandoned him at a young age, that he spent a lot of nights sleeping in farm wagons filled with cotton, that he had virtually no education, that he had never been in any real trouble, that he had drifted from Arkansas to Nebraska on the hope of farm work, that all the guards and case managers who dealt with him in the prison thought so much of him that they were willing to sign statements for presentation to the judge expressing their view that Tommy Gene ought to be released from prison, and that he really loved my wife’s cooking.

As for the later point, I needed a lot of time with Tommy Gene.  So, I got him moved to the jail in Dawson County.  In that old jail, situated on the second floor of the Sheriff’s office, there were no firm procedures.  A lawyer could see his client about any time the lawyer wanted.  Moreover, the jailer was a nice guy and I got along with him very well.  He allowed me to bring Tommy Gene meals from our home.  I spent numerous evenings sitting on the floor outside of Tommy Gene’s cell while he ate the meal my wife prepared and we talked about his life and his case.

Anyway, I came to really like Tommy Gene.  While there was no question that he had murdered someone, Tommy Gene was not a bad person.  In fact, save for the small matter of stabbing someone three times in the heart, Tommy Gene was a good person.

When I got the decision of the Supreme Court, I called Tommy Gene who by then had been returned to the  prison in Lincoln.  At first, Tommy Gene didn’t understand the good news.  When I finally was able to get through to him that he would be let go soon, he seemed stunned.  Shortly thereafter, and fairly abruptly, Tommy Gene hung up.

As soon as I got a copy of the opinion, I mailed Tommy Gene a copy and told him in a letter to contact me if there was any delay in his parole.  Some months later, I learned that Tommy Gene had been paroled.  With that, Tommy Gene’s case was no longer the compulsive driver it had earlier become.

I never saw him Tommy Gene again.  And except for what I will describe next, I never heard from him again either.

One day a pretty woman walked into our law office and said she would like to speak to me.  I came out to the counter, and she introduced herself as one of Tommy Gene’s friends.  She said she had something for me from Tommy.   With that, she gave me the leather briefcase that is pictured below.  She told me that Tommy Gene had paid one of the other inmates to make the case for me.   She said that Tommy Gene said, “Thanks.”  With that, she left.Briefcase

The briefcase sits in my office.  I look it at it before I sentence people.  When I do, I hope for balance.  Sometimes it works.

RGK

It’s a fact: Federal district judges are carpenters not politicians

Photo credit:  Phil and Pam's photostream per Creative Commons License.

Photo credit: Phil and Pam’s photostream per Creative Commons License.

Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges.   In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice.  In particular, I want to focus on “rational choice” and district judges.

Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences.  While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.

As the full title of their book specifies, the authors assert that federal district judges are rational actors.  Employing an economic model, the authors’ premise is that federal district judges avoid effort that is wasteful or unproductive (effort aversion) and federal district judges avoid effort that results in reversal (reversal aversion).  Since most cases in the federal district courts are “easy”–meaning that they can be resolved by application of rules and precedents–federal district judges resort to conventional legal reasoning even when that reasoning produces results inconsistent with the judge’s personal ideological preferences.   Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful.  That is, the federal district judge  will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort.  The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.*

Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views.  This group of judges act more like carpenters than politicians.   This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.

RGK

*One can accept the data discussed by the authors and the statistical analysis conducted by them without accepting or fully accepting their labor model as an explanation.

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

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

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

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

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

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

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

RGK

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

Sketchy trial judges (and what they do)

Before it happened, you could not have convinced me that I would one day order a state (or anyone else) to pay $150 million or so based in significant part on one my sketches.  But that is truly what happened.  See Entergy Arkansas, Inc. v. Nebraska, 226 F.Supp.2d 1047 (D.Neb.,2002) (Nebraska breached its good faith obligation under the  Central Interstate Low-Level Radioactive Waste Compact and must pay $151,408,240.37 for its violation of federal law), aff’d 358 F.3d 528 (8th Cir.), petition for cert. dismissed, 542 U.S. 960 (2004).

Plaintiffs claimed that Nebraska had breached its good faith obligation under an interstate compact when it refused to license a nuclear waste disposal site.  The issues were complex. Over the span of a month or so as the trial proceeded, tons of scientific evidence was presented derived from computer models, hydrographs, well borings, core samples and physical observations.  At issue were questions pertaining to ground and surface water flows, wetlands, the topography and geology of the site, radioactive release scenarios, and on and on and on.  The evidence made my head spin.

Near the end of the nonjury trial, the lawyers and I flew to the site so I could see what it actually looked like.  The site was in a remote part of Nebraska.  (Is that sentence redundant?)

The day we arrived it was so hot and windy that we had to walk each of the 320 acres rather than taking a vehicle.  A pickup’s exhaust might start a prairie fire.   Since the license had been denied, no construction had taken place.  It was difficult to envision how the completed project would look in relation to the topographical features of the half section of ground where the project was to be  constructed.  Thus, we really had to tramp all over the damnable place.

During the walk-about, I tumbled down a slight ridge and into a culvert.  The lawyers helped me up and tried hard not to laugh.  I wasn’t hurt.  However, I was covered with stickers and all manner of dust and dirt.

After I picked the straw out of my hair and our tour ended, we returned to the plane.  While we were in the air, I tried to compose some notes of what I had seen and how that site visit could be placed in context with the other evidence that I had heard.  The inside of the plane was stifling and I was stumped.  None of my notes made sense.

We eventually reached an altitude where the temperature in the little twin-engine began to fall to something slightly under 80 degrees.  As the temperature moderated,  and almost without thinking, I began to sketch.  By the time we landed, I was beginning to understand the true picture.

Once the trial ended, and I began to draft my opinion, I sat down to carefully review my notes.  What drew my attention again and again was the sketch I had started on the plane.  I began to refine the sketch.  The more I refined the sketch, the more the scientific issues and the case more generally came into focus.

The opinion I wrote was very long, some 200 pages or so.  But, it was the sketch that encapsulated my basic understanding of the case and much of what I thought was important.  That sketch is reproduced below:

Entergy, 226 F.Supp.2d at 1092.

So, what lesson is there to be learned from the foregoing about being a federal trial judge?  It is pretty simple.  Facts are the dominion of the trial judge whereas law belongs to appellate judges.  It is up to the trial judge to understand the facts better than anyone and then portray them honestly. That effort sometimes requires getting a bouquet of burrs on your backside.

RGK

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