David Lat’s first novel, “Supreme Ambitions,” deftly dissects judicial power, how to get it and how to use (and abuse) it

David Lat is a champion of judicial transparency even though he is a slightly monstrous one. If you read his first novel, and I heartily recommend it, you will understand my choice of words.

The annoying thing is that Lat is young. If you don’t know about his first blog, you have not been paying attention to the federal judiciary. Entitled  Underneath Their Robes, and written under the pseudonym Article III Groupie (because he was then a junior federal prosecutor and federal prosecutors are typically plodding and illiterate and constitutionally unable to rock the boat), Lat wrote snarky, terrifically funny, sometimes shocking, and always utterly revealing pieces about federal judges and their law clerks including especially those at the Supreme Court. These offerings were not made up. He had real sources and they leaked everything to him. Highly regarded federal appellate judges sought him out for coverage. He wrote in a female voice, and his fashion sense was as acute as his other skills.

It took a kid’s courage, a scamp’s mind, and boatload of diverse talents equivalent to a dangerously packed Filipino ferry to do what he did. Did I mention Harvard, Yale law, a clerkship with the brilliant Diarmuid F. O’Scannlain of the Ninth Circuit, a stint at Wachtell Lipton Rosen & Katz and an appointment as an AUSA under (bad word choice) United States Attorney Chris Christie (yea, that guy)?

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat revealed his identity in a November 2005 interview with Jeffrey Toobin of The New Yorker. After that, he left his prosecutor’s position in New Jersey to enter the literary world, founding, among other things, the everything-about-law-site, Above the Law.

And now we have the wunderkind’s first novel. It will be on “book stands” in hard cover around December 1, 2014, but you can (and should) pre-order now. The list price is $22.95, but Amazon will sell it at a pre-order price of $17.21. Published by the ABA, Lat titled his book Supreme Ambitions.

Lat’s novel is a cross between a serious look into the heart of darkness and an insouciant study of Manolo Blahnik footwear. It recounts the story of a young women, Audrey, who is half-asian. She is beautiful, poor, a gunner without being a mean girl, and a Yale law graduate. Audrey serves as a law clerk to a ruthless female federal appellate judge on the Ninth Circuit who is also of Asian origin. Our heroine desperately wants to clerk for a Justice of the Supreme Court. If Audrey plays her cards right, her Ninth Circuit boss, with more than a passing interest in the Supreme Court herself, can fulfill the waif’s supreme ambition. But what if Audrey must sell her integrity to get what she wants? For the rest of this captivating story, buy the book.

In no particular order, here are a few of my thoughts:supreme-ambitions-cover (1)

  • The novel is more about truth than fiction. This is legal realism at its finest but told in the highly unusual and difficult form of a a well-crafted novel. Concentrate on the details as you read this piece. It is Lat’s attention to that detail–the manner of speaking, the fixation on appearances, the guardedness, the obscene opulence of appellate judicial chambers, the hard, hard work that appellate law clerks are required to put in, the silly and ultimately unwarranted hero worship of federal appellate judges by law clerks just out of law school, the horrid egotism that runs unchecked and unchallenged among so many federal appellate judges, the use of words to hurt and demean for no reason other than to feel the sharpness of the blade cut sinew, and the pettiness, oh, the pettiness–that both brings this novel to life and gives it more than passing significance.
  • Especially for me, the book brought back memories. Long, long, long, long ago, I served as a law clerk to Judge Donald R. Ross on the Eighth Circuit Court of Appeals. It was the best job I have ever had. Lat’s novel reminded me of that wonderful period when high drama appeared around every corner. When my judge secretly flew out to the east coast on a private jet during the midst of Watergate, the fact that he had formerly been Vice Chair of the RNC, the fact that he had been the arrangements chair for the 1968 Republican convention in Miami, and the fact that he was the lawyer who dumped Barry Goldwater and his acolytes from power within the GOP, punctuated the point that some federal appellate judges remain unseen national power brokers even after they take the bench. My memory fits perfectly with Lat’s intriguing narrative.
  • Lat is a taxonomist of the first order. He divides federal appellate judges into two camps. The CEOs who manage cases, but who find little interest in the nitty-gritty of the law. They are said to see the big picture. Alternatively, there are the judges who are technicians who love the law, and the nitty-gritty that goes with it. They are said to be the intellectuals. While this division does not always hold true in real life, my experience suggests that Lat’s taxonomy is generally accurate. For what it is worth, my view is that the perfect appellate judge is the one who blends both attributes. Unfortunately, there aren’t many of those judges.
  • If you are expecting something from the likes of John Grisham, look elsewhere.
  • There is a hipster quality to the book, but it is not overdone.
  • Snark? Oh, of course. Do you know what TTT stands for? It stands for “Third Tier Toilet.” Snotty appellate law clerks from elite law schools use TTT to describe law schools like the University of Nebraska College of Law, my law school. At times, the novel has a very sharp edge to it.
  • Lat’s use of his real life blog Underneath Their Robes as an important element in the story initially annoyed me because it seemed needlessly self-promotional, but the device ultimately ended up being brilliant.
  • Until the end, there were not enough white guys. I’m kidding, but only sorta. As you reach the end of the novel, I think Lat wants you to think about Chief Judge Kozinski (a former law clerk to Warren Burger, Supreme Court of the United States, 1976-1977) and his independence, his brilliance, his weirdness, his powerful writing, his love of the law, his understanding of power, his terrific sense of humor and his intellectual honesty. Lat hints that such men (and women) are there if only the political will exists to put them on the upper rungs of the federal judiciary. And so it is, as the 281-page offering ends, that Lat provides me with a glimmer of hope.
  • The novel is fun for the gossip potential too. If you know what to look for, you can find references to present day Judges and Justices, although their names are changed. There a several nods to Lat’s old boss, Diarmuid F. O’Scannlain of the Ninth Circuit, but, of course, under a different name. Of particular interest to me, Eighth Circuit Court of Appeals Judge Steven Colloton is favorably mentioned as “feeder” judge to the Supreme Court but under another name. Later, he is mentioned as a likely candidate for the Supreme Court. By the way, I know Steve (just a little) having sat with him on the Court of Appeals and worked with him on other projects. Lat’s speculation about the upward trajectory of this young Iowa federal appellate judge from flyover country fits my guess-work. That said, and while I like and respect him an awful lot, Steve would be well advised to polish his interpersonal skills with other judges. Just sayin’.
  • In the book, Lat uses court cases as stage props, but he gives us realistic cases to ponder. Because the novel concentrates on the tension between judges of different jurisprudential stripes (“conservative” and “liberal”), Lat is forced to describe the arguments for and against the competing alternatives. His analysis is balanced. Indeed, there are portions of the novel when the characters are getting down to the cases where Lat’s book might serve as a fun “hornbook.” Again, the detail Lat provides gives the novel a feel of reality that would be impossible to achieve without it.
  • I continue to thank the God(s) that my law clerks (Jan and Jim) are career clerks. Lat accurately describes the kids just out of law school who populate the ranks of federal appellate clerks. Sure, they are brilliant. But the acne that still dots the faces of many of them highlights their immaturity, and the ultra strange fact that important decisions are substantially shaped by children scares me.
  • Lat pens dialogue reasonably well for a first timer. Some of it is even marvelous. Dialogue is not, however, his strength. Because Lat is such a wonderful observer, I hungered for longer strings of dialogue but that is not found in Supreme Ambitions. Good dialogue is impossibly hard to write without years of practice. He will get better with time.
  • Next time around (and I strongly encourage Lat to continue writing novels), I would like David to concentrate on the TTT of the federal judiciary, the federal trial courts. There is a drama there as well as a desperate need for transparency. Again, the great value of Lat’s work is that he gives us legal realism in a transparent and knowing manner while using the unusually difficult but terrifically engaging device of a novel. Lat can become the master of this powerful new way of describing our opaque federal judiciary. I sincerely hope he continues.


The death of innocence

If as a federal trial judge you handle habeas corpus cases involving the death penalty your sensibilities will never be the same. What do I mean? Take the beheadings in the middle east as an example. I have had death penalty cases that make those rather quick killings look merciful.

Let me be illustrative. Take a little girl. Rape her. Terrify her. Despoil her. Then kill her inflicting the most pain possible and pose her in an obscene position for the authorities to find. Leave that image forever burned into the memories of her parents. Beheadings? Child’s play. ISIS better up its game if it desires to remain competitive in the horror business. Advice: ISIS please read American law books, you will learn a lot from our monsters. We have the really good ones.

That brings me to satire. There are historical figures we should venerate because they wrote with the irony that shocks and illuminates and stays with us forever. Jonathan Swift comes to mind. Example: On Irish beggar children: “A young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee, or a ragout.”

And Swift takes me to the Onion and the death penalty.  A dear friend, a former law clerk, and a real lawyer who despite her gender spits on the idea of trigger warnings sent me this: Death Row Guard Has Always Had Soft Spot For The Innocent Ones. I hope you enjoy it as much as I did.

"Saying he’s seen 'a lot of people come through here in [his] day' and met prisoners of every type, longtime Louisiana State Penitentiary death row guard Dwayne McFadden confided Wednesday that he’s always had a bit of a soft spot for the innocent ones. . . . McFadden says he always goes a bit easier during cavity searches of inmates who didn’t commit capital offenses."

“Saying he’s seen ‘a lot of people come through here in [his] day’ and met prisoners of every type, longtime Louisiana State Penitentiary death row guard Dwayne McFadden confided Wednesday that he’s always had a bit of a soft spot for the innocent ones. . . . McFadden says he always goes a bit easier during cavity searches of inmates who didn’t commit capital offenses.”

Have a nice day!


Hat tip: Islamic State of Iraq and the Levant (داعش).


The Edinburg Town Court Story

With a Phi Beta Kappa key, and admission to the New York Bar in 1956, John L. McMahon started a criminal defense practice in northern New York.* This is a story about one of his early cases. It is told by his daughter Jill, and I love it:

Edinburg Town Court Story

My father was a newly minted criminal defense lawyer in the 1950s. One of his early cases was defending a bar owner alleged to have assaulted her neighbor. The bar owner, D, was a longstanding member of the tiny community of Edinburg on the north shore of Sacandaga Reservoir. The complainant, S, a relative newcomer, ran a small general store next to the bar. Relations between the bar owner and the store owner were strained because the store owner alleged that the bar owner also sold alcohol for consumption away from the bar (i.e., in competition with S’s store). One summer night, the bar owner had a party on the beach across the shoreline road from the bar. There were many noisy partiers that evening, and S took a flashlight to investigate. He found D and another reveler together in a boat, in a compromising position. According to the complaint, when S shined his light on the two, D punched S in the nose.

On his way to night court, Dad stopped at a restaurant in Edinburg for a bite to eat. The owner explained to Dad that he had to eat fast because he was closing the restaurant early in order to attend THE TRIAL. The whole town was going. Dad told the guy, don’t worry, they wouldn’t start until he got there.
When he arrived at the courthouse, a small building about 30’-by-40’, it was standing room only inside. Scores of people were massed outside, closer ones with noses plastered to the windows providing play-by-play to the rest.

The site of the trial

The site of the trial

The prosecutor questioned S at length about his interactions with D. Whenever S’s answer cast D in a poor light, from deep within the gallery the stentorious voice of the Town Clerk would comment, “Bullshit.” Or, “My ass.”
When Dad’s turn came, he was able to get S to admit that during the short time they had lived there, he and his wife had filed complaints against D to the Sheriffs, the State Troopers, the Alcohol Control Board, NYS Taxation and Finance, and the IRS, ad nauseum.

I think you can guess which way the verdict went. Dad says that the victory party at the bar lasted a week, during which time he was held hostage and deprived of water.

 Thanks Jill!


*See The weasel and the pigeons: A Christmas story about lawyers in general practice, another story by Jill about her dad’s firm.

Classin’ up the joint

Joan and I went to the Article III Judges dinner last night to kick off the Eighth Circuit Judicial Conference in Omaha. We privately laughed at ourselves and remembered 1992 when we attended our first such dinner after I had become an Article III judge. At that dinner we giggled about the old age of the judges and their spouses. I was 45, and that was then.

But this is now. I had a chemo infusion yesterday morning. Lucky me, that induced a bloody nose last evening sitting next to the genteel, funny and brilliant Judge Susan Weber Wright from Little Rock. She pretended not to notice as I skulked away from the table and returned with Kleenex up my nose.

The following photo depicts what I found when I got home, and looked in the mirror. I added Joan’s comments for context. You want legal realism, you got legal realism.

No, that tissue sticking out of your nose, that you thought was crammed high enough to miss, is nothing to be embarrassed about. It makes you look distinguished.

Joan to Rich: “No, that tissue sticking out of your nose is nothing to be embarrassed about. It made you look distinguished. Old coot!


“Maximum Insecurity”

Above all else, I suppose this blog seeks to promote transparency about what it is like to be a federal trial judge. In a recent letter, William Wright, M.D., after coming across this blog in a USA Today piece about my Hobby Lobby post, thought I might be interested in his effort at transparency. But before I get to that, a little background about Dr. Wright is in order.


William Wright, M.D. is a graduate of the University of Michigan Medical School. He practiced surgery of the ear for 30 years before attempting (unsuccessfully) to retire from medicine and spend time with his wife, an artist, and an assortment of furry friends. A private pilot, he is also the holder of three black belts and instructor certifications in Tae Kwon Do and Aikido. He is a talented digital artist fascinated by motion, energy and light. And, if all that were not enough, he is one helluva of a writer.

His book Maximum Insecurity: A Doctor in the Supermax chronicles eights years practicing general medicine at Colorado’s maximum security prison after Wright found that retirement from medicine was driving him (and possibly his wife) nuts.* The book is wonderful.

It is hysterically funny, insightful, and very human. Most of all it provides a transparent, but worldly, glimpse into the practice of medicine in a prison where the patient population consists of especially serious (and often loopy) offenders, where the prison bureaucracy strives mightily to act as dysfunctional as the screwiest of inmates, and where the physicians, assistants and nurses undertake to treat with compassion, but not judge, or burst out loud laughing at the machinations of, an odd and sometimes dangerous lot. It was “Runner Up” in the General Non Fiction category at the 2014 Hollywood Book Festival.

Keeping in mind what Wright had no reason to know when he wrote me, that is, I manage our docket of prisoner cases and thus have read a ton of complaints of inadequate medical care in prison, here are a few snippets from the book:

  • Wright explains his first few days as a prison doctor and the fact that his straight chair would not allow him to fit his legs under his desk. The solution? A new adjustable chair. Oh, no. The helpful maintenance staff cut a 2×4 into four pieces and put the four desk legs on the four shortened pieces of lumber. Desk raised four inches. Problem fixed!
  • He explains the “secret” e-mails he receives from the administration in Denver that are urgent but can never be opened because they require a unique password that he cannot get because that special password requires a second special password that he is prohibited from accessing.
  • While performing a routine check up on a murder who had killed five people in a fast-food restaurant, Wright details how the correctional staff inched forward ready for any violence as the doctor began the examination of his patient. Wright touched a stethoscope to the patient’s chest fearing that “might be like lighting a dynamite fuse.” With that, a “a sly grin” came across the man’s face “spreading his thin lips.” “You scared, ain’t you doc? You should be. I be the baddest man you ever see.”  Despite his martial arts training, Wright was scared. “What the hell was I doing here?”
  • And the drug seeking behavior. The doctor explains how one of his patients, “a chop shop entrepreneur from Fort Collins,” came to the clinic because of a complaint about pain in the heel of his foot. Trying to remember the name of the powerful painkiller “Percocet” that the inmate was seeking, but being unable to do so, Wright sees the inmate “thinking hard.” Wright wryly observes, “This is a huge red flag.” Why? Because “[w]henever an inmate is trying to think he is lying.” After the doctor suggests the name of the highly addictive pain-killer, the patient’s eyes light up in relief. The inmate-patient tells the doc he only needs a supply of Percocet for “[j]ust a few months.” Tartly, the doctor responds, “No. Use the heel pad. Have a good day.”
  • This gentle soul describes his treatment of a kid who escaped from a county jail, fell forty feet, and impaled his abdomen on a steel post. Because the nerves were impaired and needed to heal, the bowels were pulled out of the mid-section in a procedure called an ileostomy. After two years of treatment, the nerves recovered and it was time to put the bowels back where they belonged. It was only then Wright learned that as a matter of policy they “don’t reverse ileostomies.” Flabbergasted and frustrated, Wright concludes: “Maybe someone should have thought of that a couple of years ago. But I’m just the hired help.”

Near the end of the book, in a passage I liked the most (p. 240), Wright writes more broadly and warmly of his patients and his oath as a physician. He is (to put it mildly) “less sanguine” about working in a bureaucracy even though there are “stars that shine” in “supervisory roles.” “They shine against a dark background.”

He remembers taking the Hippocratic Oath at the University of Michigan, his “throat tight with emotion.” “It is a pledge to always act in the best interests of my patients.” To Wright, that was “not a quaint ritual.” He still carries “every syllable into the clinic with” him. “[T]he examination room is not the place for moral judgments.” “Even sociopaths cry in the night[,]” “[m]urders miss their children[,]” and child “molesters feel shame.”

When one of his patients remarks, “You really take this serious, don’t you, Doc[,]” Wright is almost surprised. Reflecting, the good doctor concludes: “I do. Perhaps my patient doesn’t deserve the best I can offer, but for my sake I can give no less.” (Emphasis added by Kopf.) And, that is a good place to end.


*Even with my cancer treatment and my whiny complaints, Joan, my wife, tells me that I can’t retire because, as she puts it, “I married you for life, but not for lunch.” Despite my hang-dog expression, she never smiles when she repeats this mantra. Just like the lymphoma, she is deadly damn serious. As is often the case, she is right.

It’s time to rewrite or junk entirely 18 U.S.C. § 3553(a)

The pendulum swings.

It is now fashionable to be “soft on crime” rather than “hard on crime.” This is largely because being hard on crime has become ridiculously expensive. I get that, and, in fact, agree with it. However, before we provide group hugs to the special little snow flakes (each one is unique don’t you know) who will reside in our federal prisons, we ought, at least, to know what goals we seek to achieve when we send them to federal prison.

From 18 U.S.C. § 3553(a), here are what judges are supposed consider now regarding the goals of sentencing:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.1

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

If you read these goals and try to apply them seriously you will end up insane. They are inherently contradictory. They provide no meaningful guidance to the sentencing judge.

If  you believe that federal judges are like Platonic guardians imbued with the powers that only the elite can possess, these goals are perfect. Essentially, the federal judge is told to do the right thing. The Supreme Court’s line of cases (e.g., Booker) punctuates that point by making the Guidelines irrelevant for the sentencing judge inclined to sentence without meaningful external constraint. On the other hand, if you believe, as I do, that federal sentencing judges require specific direction from Congress because (1) that is the democratic way and (2) federal judges are no more smarter when it comes to sentencing than the reasonably well-informed lay person, then it is clear that we must junk or rewrite section 3553(a).

In sum, I don’t care whether section 3553(a) is rewritten or junked entirely. If Congress elects to rewrite the statute, so long as the statute sets consistent sentencing goals, I don’t care what goals Congress picks. If Congress junks the statute (or leaves it unchanged), and, by so doing, proclaims that we federal judges are to pick the goals that we think best, then that’s fine too. I just want to know what I am supposed to do at sentencing. Is that too much to ask?

Where are they now?

Oprah had (or used to have) a TV program entitled “Where are they now?” The show features celebrities like Tom Green or Nicole Richie who may have seemingly dropped off the face of the earth. The production provides an update on that person. This post is sorta like that, although much, much darker.

In 1984, Jeff Jacobsen and I represented Platte Valley Harvestor in a difficult farm case about alleged damage to dairy cattle. Picture the big blue silos you see on farms. That’s what our client built and installed after buying the parts from the manufacturer. The dairy cattle were feed out of that structure.

Jeff is one of the best and most experienced trial lawyers in Nebraska and perhaps the funniest lawyer I know. He had the insurance defense on the negligence claims. Because there were warranty claims that were not covered by insurance and the claims were large enough to sink the business and then some, I defended our client on those issues.

We had a long and contentious jury trial in Furnace County, Nebraska. I am not proud of the fact that Jeff had to restrain me from punching our opponent in the mouth after trial one day. The essential claim against our client was that the big blue structure our client built for the farmers had poisoned the dairy cattle such that they milk production was dramatically reduced. Throughout the trial the plaintiffs mentioned their “baby Jason.” By the time of trial, the kid was certainly no longer a baby. He was about 13 years old.

The jury came back for the farmers on the negligence claims, but the judge pitched the warranty claims. Jeff appealed and a young and  very bright associate of Jeff’s by the name of Steve Russell wrote the portion of the brief that dealt with the negligence claims and I wrote the portion of the brief dealing with the farmers cross appeal on the warranty issues. The Supreme Court reversed the jury verdict for the plaintiffs, and affirmed the trial judge on the warranty claims.

In short, we won a complete victory. See Agristor Credit Corporation, a foreign corporation, Appellee, v.Fernan Radke and Estella L. Radtke, Third-Party Plaintiffs, Appellants and Cross-Appellees, Platte Valley Harvestore, Inc., a corporation, Third-Party Defendant, Appellee and Cross-Appellant, A.O. Smith Harvestore Products, Inc., a corporation, Third-Party Defendant, Appellee, 356 N.W.2d 856 (1984).

With the foregoing by way of introduction, I now turn to the “where are they now” portion of the post. I suppose I could write about some of the other participants, but I instead concentrate on only two.

Steve Russell: Not long after Steve wrote the great brief, he left Jeff’s firm when he was recruited to be an Assistant United States Attorney in the Lincoln office. For well over 20 years now, Steve has distinguished himself as one of the three or four best federal prosecutors we have in Nebraska. Tall, good-looking, well spoken but in the language of common people, Steve gets tough cases and almost always convinces the jury to convict. Among other things I particularly respect about Steve is that he is eminently fair to defendants and their counsel. Even if he has an advantage he won’t press it if he believes it would be unfair to do so. He believes in cutting square corners. Yet, he is tough as nails.

Baby Jason:  My writing skills, such as they are, cannot adequately do justice to Baby Jason. So, I will simply quote part of the New York Times article about him that describes his activities about six years after our trial. While you should read the entire account, the beginning of the article reads this way:

A 19-year-old man who had moved to Queens from Nebraska two weeks ago was charged yesterday with killing his 6-day-old son, dismembering the body and then feeding it to a German shepherd he was training as a guard dog, the police said.

Detectives said yesterday that the baby’s crying early Friday morning woke the father, Jason Radtke, who took the infant out of a crib and began to walk him. When the baby suddenly wet him, Mr. Radtke became enraged, the police said, and threw the child to the floor, killing him.

Mr. Radtke is believed to have then dismembered the baby’s body with a razor and left the remains ”in a position to be consumed by the German shepherd,” Capt. John Creegan of the New York detectives said.

I wrote this post in ABQ. That’s where “Breaking Bad” was filmed. By the way, I have long ago concluded that “the Moon is [not]  in the seventh house.” Nor do I believe that “Jupiter [has] align[ed] with Mars.” But, that is probably just me.

Oh, and have a nice day


My idea of the proper “emoticon” for this post is shown below:

Sentencing a bad cop

I’m going to have a busy day today. Blood tests at the clinic followed by a short meeting with a nurse to discuss the numbers.  Then off to the southwest on United through Denver. But before I leave, I urge you to go over to the Southern District of Florida Blog and read point 3 of news and notes. It describes a bad cop’s sentencing in federal court. This cop falsely arrested a woman. Why?

The local newspaper gives this account of what happened to the victim, Ms Romeo:

Benjamin did it as a favor to Rothstein [a lawyer, banker and fraudster] and Romeo’s ex-husband, Douglas Bates, who was trying to gain the advantage in a custody battle over Bates’ and Romeo’s children. Bates, who had his own law firm, has been disbarred and is now serving five years in prison for his role in the fraud.

Also in court was the couple’s son, Andrew, who has autism. His prescription medication was among the pills that Poole and Benjamin used to set up Romeo’s arrest. State prosecutors later declined to prosecute Romeo because the pills were all legitimately prescribed for her and her son.

“They utilized my autistic son’s medication to pull this off,” Romeo told the judge. “I don’t understand how educated men can abuse their powers so grossly.”

I am not much for beating up defendants at sentencing. The huge majority of the time I merely recite my standard litany on the section 3553 factors to satisfy the Court of Appeals, and exit the bench quickly. Other judges use sentencing to berate the defendant for his or her crimes. That’s simply not my style. But, I’m not saying it is wrong to do so.

In the Florida case, Judge James I. Cohn imposed the maximum sentence (five years), lashed the defendant verbally and then had the ex-cop handcuffed behind his back in the courtroom. The victim and everyone else saw justice being done in a very stark way and the judge made clear that the handcuffs-in-the courtroom routine was intentional.*

All of this brings me to the question of the day? When, if ever, is it proper for the federal sentencing judge to whip up on the defendant (verbally, of course) at sentencing?


*This case reminds me that there really are bad cops. I know. Duh! While claiming to be a realist, at times I think more like a silly romantic. Oh, well, I have plenty of time to change–for the uninformed, that’s ironic.

David Markus is stalking me

On Wednesday, I ascended the bench in the customary manner, that is, both literally and figuratively. It was magic for everyone in the courtroom, of that I am sure. It was a criminal case involving a series of serious supervised release violations.

I had not been the courtroom for about a month due to technical difficulties with my blood. Anyway, I put on my robe and the CRD came to get me. I walked up the back stairs, checked to make sure that no one could see my tennis shoes below my robes, opened the door, and all rose. As I said, it must have been magical for them.

David J. from Broward Boulevard in Fort Lauderdale, FL represented the defendant.  After he entered his appearance, the first thing David J. said was, “David Markus says hello.”  I replied “tell him ‘hello’ back.”

David J. did a wonderful job for this client. Despite the early recommendation from probation that I max out the defendant, the defendant escaped prison entirely after making a big effort to reform. Underlying state criminal charges were dismissed. The probation officer was so impressed with the defendant’s reformation that she issued a second recommendation that effectively meant no prison time.

I had a little gentle fun with the defendant. While taking his admission, I asked whether he was sure he wanted to proceed “with a Fort Lauderdale lawyer.” He grinned, and said: “Yes.”  David J. had coached him well.

I sure enjoyed Wednesday despite the fact that David Markus stalked me. By the way, his blog on the goings on in federal court in Miami and the surroundings is, I am told, required reading for federal practitioners down there where judges can be mistaken for gators.


I am going to be serious for a moment.

The notion that we lawyers are all brothers and sisters before the bar is NOT old-fashioned. The prosecutor, Mick, in the case described above, is a great guy and great lawyer. Mick used to be a police officer. He has some great stories about walking a beat. He took my rejection of his Guideline sentence request with good nature. That did not surprise me. Mick, like David J., has been around the block.




High intensity

Jeff, a fellow you would not want to arm wrestle.

Jeff is a fellow you would not want to arm wrestle. (The object in his hand is a remote controller. Ironic.))

He graduated from high school in North Platte, NE., a railroad town about half between Denver and Omaha. Rumor has it that you didn’t mess with him as a teenager. He got his college degree at UNL and then took a job with the Nebraska Department of Corrections working at the Nebraska Center for Women in York, Nebraska. After that, a stint at the Omaha Correctional Center followed, and then on to manage “death row” for Nebraska’s prisons. (Can you imagine spending your day on “death row”?)

Jeff came to the US Probation Office at our court* with great experience working with, talking to and understanding hard-core offenders of all types. After working as a USPO for 14 years, Jeff is doing “high intensity” supervision. That is, he supervises the toughest of offenders who are released from federal prison and thereafter may be doing 5, 10 or more years on post-prison supervision. Jeff knows what it is like to supervise an offender who killed a man while on supervision with one mighty punch, perhaps in self-defense.

High intensity supervision is dangerous both to the USPO and to the offender. If you don’t believe me, consider the following. Before USPOs were allowed to carry guns, USPO Thomas Eric Gahl was shot three times with a shotgun and killed when he entered an offender’s home who had recently been released from prison. The man was suspected of taking drugs while suffering from mental illness. The offender fled, killed two other people, engaged in several other kidnappings and then committed suicide. See here for more. The Federal Courts Improvement Act of 1996, Title I., Sec. 101 (October 19, 1996) amended federal law (18 U.S.C. § 3603(9) to provide federal statutory authority for United States pretrial and probation officers to carry firearms.

Officer Gahl had served with the United States Probation Office for the Southern District of Indiana for 11½ years. He had previously served with the Indiana Department of Correction, the Federal Bureau of Prisons and was a US Marine Corps veteran of the Vietnam War. Officer Gahl was survived by his wife, two young sons, brother and mother.

Officer Gahl had served with the United States Probation Office for the Southern District of Indiana for 11½ years. He had previously served with the Indiana Department of Correction, the Federal Bureau of Prisons and was a US Marine Corps veteran of the Vietnam War. Officer Gahl was survived by his wife, two young sons, brother and mother.

The offenders who are subject to frequent contact with high intensity supervisors are marked as the toughest to supervise and those offenders know about and often resent the increased supervision. The supervision takes the officer out into roughest places and neighborhoods at all times of the night and day to have contact with the offender. A high intensity supervisor cannot “talk-the-talk” with these offenders, he or she must have the unique ability to “walk-the-walk” when the pressure is really on. Those interactions can be tense and fraught with an almost palpable smell of violence. The officer is often alone.

While men and women like Jeff have arrest and other limited law enforcement powers** and carry guns, their mindsets are (or should be) completely different than that of a cop. Their job is to help the offender become productive. And that’s what makes their jobs so awfully hard. I have known Jeff for a long time now. He is the happiest when one of his offenders completes supervision successfully. He does not enjoy “bagging” an offender. On the other hand, Jeff is tough. He is not afraid to get very aggressive if public safety and the law requires it.

Late at night, an employee of the United States District Court for the District of Nebraska, a USPO, is probably risking his or her life to do good both for the public and offenders who most of society have written off long ago. In Nebraska, that person might be a powerfully built but inwardly caring guy whose name is Jeff. I like the idea of probation officer as humanist. Jeff is such a person.


*US Probation Officers are employees of the judiciary. Each United States Probation Office is a unit of the United States District Court for a particular district and is subject to control by the judges of that court. See here for our United States Probation Office.

**U.S. Probation Officers may with the approval of the court conduct warrantless searches of offenders and their property. The U.S. Supreme Court (Griffin v. Wisconsin, 483 U.S. 868 (1987) (supervision of probationers is a “special need” of the State that may justify departures from the usual warrant and probable cause requirements. Supervision is necessary to ensure that probation restrictions are in fact observed, that the probation serves as a genuine rehabilitation period, and that the community is not harmed by the probationer’s being at large) and several federal courts have held that warrantless searches are permitted under certain circumstances. See also 18 U.S.C. §§ 3563(b)(23) and 3583(d). They have authority to make arrests as well. 18 U.S.C. § 3606(b)(23) and 18 U.S. Code § 3583(b).

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