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.


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

Kopf’s big blunder(s)


Photo Credit:  De Maus Collection, Alexander Turnbull Library, National Library of New Zealand.

Earlier, I said that I would blog about some of my screw-ups.  I start that process with this post about a huge mistake that I made some three years after I became a federal trial judge.

This big blunder revolved about an impassioned opinion explaining that a departure was warranted in a drug case because the defendant was a combat veteran whose drug dealing was caused by the horrible things he had witnessed.  See United States v. Perry, No. 4:94CR3035, 1995 WL 137294 (D. Neb. 1995) (the Sentencing Guidelines are sufficiently flexible to take into account the indisputable impact of the cruelty of war on a very young man who suffered through horrific events as a crew chief-emergency medical technician on an Army air ambulance in the Persian Gulf War).

There was only one problem.  The defendant had appropriated the experience of another soldier, hoodwinking me and several others.  When fellow vets who knew the true story heard about my touchy-feely decision, they contacted the press to straighten things out.  Headlines, a blistering editorial, a scalding editorial cartoon (see below) and universal condemnation ensued.   Sadly,  all the criticism was justified.photo

While I later corrected the error by sentencing the defendant to the prison term called for under the Guidelines, the damage had already been done.  I had given aid and comfort to the nuts who attribute to federal judges every sin under the sun.  More importantly, for the majority of citizens who are well-motivated, I provided a solid reason to doubt my judgment, and, by extension, the judgment of my colleagues.  The saying “lower than a snake’s belly in a wagon rut” perfectly captures how I felt.

“OK,” you say.  “So what?”  Aside from the considerable enjoyment that comes from another public flogging, what value does this post have to the study of the role of federal trial judges?  “Quite a lot,” is my response.   What follows are several lessons learned the hard way that inform my views about the proper role of a federal trial judge.

First, the axiom that we learn by doing is especially (and painfully) true for federal trial judges.   I came to the position with experience as a law clerk to a federal appellate judge, thirteen years of practice (including service as a special counsel appointed to prosecute the impeachment of Nebraska’s Attorney General), and then five years as a United States Magistrate Judge.  Unanimously, the ABA committee that evaluates federal judicial nominees thought me “well-qualified.”   Lesson One:  There is no amount of experience that trains one for the job of a federal trial judge–absolutely nothing.  The judge must learn his or her role by doing.   Finding the proper role is very much a result of the slow process of accretion.

Secondly, there is a lot of blather about doing “justice.”   That is frequently code for giving someone a break not clearly called for by precedent or rule.  Lesson Two:  The more the federal trial judge strays from applying “law” to do “justice” the more likely it is that something unexpected will pop up thereby creating a good reason to question the legitimacy of a life-tenured and unelected judiciary.

Finally, I have reread what I wrote in the Perry case.  My analysis of the law, while approaching the outer limits, was correct.  My grievous error was credulity–believing what the defendant said.   Lesson Three:  Skepticism is an integral component of the role of the federal trial judge.  Empathy, while necessary, is overrated.

George Bernard Shaw is reputed to have said something like the following: “A life spent making mistakes is not only more honorable, but more useful than a life spent doing nothing.”  I certainly hope that is true for the blunder described above is merely the tip of my iceberg.


(The cartoon is reprinted pursuant to a “one-time use permission” granted by the Omaha World-Herald.  Thanks to the OWH and Michelle Gullett, intellectual property manager for the paper.)

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