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.

RGK

*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.

We are the scriveners

MuesBalancedNebraska has a peculiar beauty. This place is infused with such extremes of wind, weather, drought, flood, geology, geography and the constant threat of hardship that the beauty can quickly turn painful.

Although he graduated from the University in Lincoln, I first got to know Wes Mues when he and I attended Kearney State College long ago. Wes was a beautiful person. Not only was he outwardly attractive, but there was a genuine warmth about him that pulled people to him. Look at the photo at that top of this page. See what I mean? You could not help loving Wes.

Following college, I got to know Wes much better after we both enrolled as first year law students. During the following three years, we became buddies. He really shined in law school. After we graduated (Wes “with distinction”), we found ourselves together again. We became extremely close friends when he clerked for federal district judges “Dick” Dier and “Duke” Schatz and I clerked for Don Ross, a federal circuit judge. Both chambers were in Omaha, and, when Judge Dier died unexpectedly, Wes came to work with Judge Ross until Judge Schatz was confirmed.

We both left clerking at about the same time to enter the real world. We both ended up a few miles apart in central Nebraska where the Sandhill and Whooping cranes come in the icy-cold spring. I think we both returned to the sticks because we wanted to become real lawyers, whatever that meant to us at the time.

Wes began to practice with a preeminent trial lawyer in Kearney by the name of Jim Knapp. Wes and I later learned and laughed about the fact that Knapp had offered each of us the same job when he only had room for one of us. In addition to being a truly great trial lawyer, Jim was an outsized character.

I went into practice in Lexington, about 45 miles to the west. I was drawn to Lexington by Ed Cook, Judge Ross’ brother-in-law. Ed’s followed his father who followed his father into the practice of law in Lexington. The firm was founded in 1884. Ed is the best lawyer and person I have ever known. But, I digress.

Over the years, Wes and I bumped into each other in our respective practices. Once, entirely on a technicality (I was good on technicalities), I bested Wes in a suit about an airplane that got burned up in a hangar. That was the only time.

On another occasion,  I got into a tussle with a first-year associate in Wes’ firm. The kid did something to really annoy me (I can’t remember what that was), so I called Wes to complain. I told Wes the young man was an “asshole.” Wes replied that I was entirely and unquestionably correct.  But then Wes added, “He’s our asshole, so get over it.” I laughed so hard I forgot about being angry.

Another time, Wes agreed to become the “first-chair” lawyer in a federal diversity case that was too big and complex for our little three-person firm to handle alone. We were representing a retired farmer whose brain was nearly but not entirely destroyed in an accident caused by the driver of an errant semi-truck and trailer. Due largely to Wes, we settled that case for what was then the largest insurance payout in Nebraska’s history. The day-in-the-life video of our client that Wes put together, showing the poor fellow at the asylum calling for his mother as big tears rolled down his weather-beaten face, was the most powerful evidence that I have ever seen.

In 1984, I got myself into a load of trouble. Earlier, I had agreed to become special counsel to the Nebraska legislature, and that matter unexpectedly resulted in my appointment as a special assistant attorney general to try the impeachment of Nebraska’s Attorney General, Paul Douglas. Douglas was liked by all (he once offered me a job) and members of the Republican party absolutely adored him. Except to say that the matter involved the Attorney General’s personal business dealings with a failed financial institution, the facts aren’t important in this context. That said, the impeachment was a very big deal in Nebraska. For background, see Terrance DeWald, An Evaluation of Nebraska’s Impeachment Standard–State v. Douglas, 29 Creighton Law Review 358 (1986).

Under the Nebraska Constitution, we had only ten days to prepare. Worse, the legislative staff that provided me with support was ready and willing but didn’t know the difference between a deposition and a donut.  Since Nebraska has a one-house legislature, the trial was before the Nebraska Supreme Court. To make matters more difficult, the court had previously decided that an impeachment trial was “criminal” in nature even though the only “sentence” that could be imposed was expulsion from office. That meant the “proof beyond a reasonable doubt” standard applied. It also meant that we could not call Mr. Douglas as a witness.

Needing help desperately, I telephoned Wes and asked him to try the case with me. Now, slow down, dear reader, this is important: Wes should have turned me down because to do otherwise seriously risked his promising career, but he didn’t. All I remember is Wes quickly saying something like, “Of course. See you in the morning.” By the way, Wes was a Democrat and I was a Republican, but neither one of us were particularly active in politics.

The next day, Wes drove the 135 miles or so from Kearney to Lincoln and we began to get ready. Following feverish preparation day and night for the short time remaining to us, we soon found ourselves trying the case before the Nebraska Supreme Court. A public television camera broadcast the trial live to a statewide audience and the New York Times reported the story.

Our main assertion was that Douglas had an ethical duty not to misrepresent facts involving his conduct but that he had done so. Four of the seven judges found we had proven that count beyond a reasonable doubt. However, a majority was not good enough. The Nebraska Constitution required a super-majority of five to convict. As a result, Douglas was found not guilty of the articles of impeachment.

As I look back, both Wes and I were toughened yet chastened by the experience–for two lawyers, in our late thirties, that was a pearl of great price. In any event, after the trial, we packed up, drove west and returned to our respective lives and practices.

Ultimately, we both ended up as judges. I became a United States Magistrate Judge in 1987 and then a United States District Judge in 1992. Incidentally, Bill Morrow, the extremely smart, tough and gruff lawyer who successfully defended Mr. Douglas went out of his way to help me with that appointment.

In 1994, Wes was appointed as a judge on the Nebraska Court of Appeals. I was tickled to speak at his investiture in the breathtaking former Senate chambers of the Nebraska State Capitol building. That was a day of joy. Oddly enough, I don’t think Wes and I exchanged more than a few words. After the doings, I rushed back to the office to attend to something or the other. I desperately wish I had paid more attention to the moment but that time has passed me by.

Like the back of my hand, the intersection, near Highway 81 and I-80 at Grand Island, is familiar to me. I have eaten stale cookies, consumed horrible coffee and filled up my car with gas there uncounted times. So had Wes. But it was at that place, not far from where the prairie schooners used to navigate the tall grass, that Wes died in a car wreck.  On October 25, 1999, after 51 years, 173 days, Wes was gone.

I was asked to speak at his funeral, and I agreed. I showed up. But, to tell the truth, I didn’t actually speak. All I did was read a poem, and then I sat down. Figuratively, I am going to do the same thing now. There is nothing more that I can say.Here is that poem:

We Are The Scriveners

I have not seen [him] in forty years.
[He] . . . lies in one of those midwestern
farm cemeteries where
no one remembers for long, because everyone
leaves for the cities. [He] was young, with freckles
and a wide generous mouth, a good [boy] to have
loved for a lifetime but the world
always chooses otherwise, or we ourselves
in blindness. I would not remember so clearly save that here
by a prairie slough sprinkled with the leaves of autumn
the drying mud on the shore shows the imprint
of southbound birds. I am too old to travel,
but I suddenly realize how a man in Sumer
half the world and millennia away
saw the same imprint and thought
there is a way of saying upon clay, fire-hardened,
there is a way of saying
“loneliness”
a way of saying
“where are you?” across the centuries
a way of saying
“forgive me”
a way of saying
“We were young. I remember, and this, this clay
imprinted with the feet of birds
will reach you somewhere
somehow
if it take eternity to answer.”
There were men
like this in Sumer, or who wept among the
autumn papyrus leaves in Egypt.
We are the scriveners who with pain
outlasted our bodies.

From an anthology of poetry written by Loren Eiseley, entitled Another Kind of Autumn  (1977). I made slight changes to better fit the poem to the occasion.

Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s. During this period he received more than 36 honorary degrees and was a fellow of many distinguished professional societies including the Association for the Advancement of Science, the National Academy of Sciences, the National Institute of Arts and Letters and the American Philosophical Society. At his death, he was the Benjamin Franklin Professor of Anthropology and History of Science at the University of Pennsylvania. For more, visit the Loren Eiseley Society here.

RGK

*For a terrific bit of writing by a lawyer who met Wes once when the lawyer was a young man waiting tables, see here.

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