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

Pulling aside the curtain to reveal how the wizard works

This will begin an intermittent series of posts regarding jury trials.   The posts will hopefully provide some food for thought on what really goes on with regard to jury trials in the federal courts.

Let’s start before the lawyers arrive to select the jury.  In virtually all federal courts, there is some sort of orientation, although how the orientations are conducted varies widely.  Over the last several decades, I have taken a very hands-on approach to jury orientation, and some might think my approach is unusual.   Anyway, here’s how I do it.

Initially, the prospective jurors see personnel from the Clerk’s office and are checked in.  They receive a briefing on practical things–like where to park–and sometimes are shown a video.  Then, they are brought to me.

I conduct my orientations in the courtroom where the trial will be held.   The lawyers are welcome to attend, but not participate.  The session is entirely informal and relaxed, and no recording is made.

I begin the orientation with a short talk.  I try to answer these questions:  What’s the constitutional reason for your being here?  How did you get on the list?  How is the typical jury trial conducted?  I explain voir dire, opening statements, witness examinations, and closing arguments.  I explain the burden of proof, who goes first and last and why that is so.  I tell the jurors not to worry about their safety, and explain that my name, telephone number and address are in the telephone book.  I explain what would happen if we had a security concern.  I explain how long they will serve, and our hours of work during trial.  I then have the jurors get up and walk with me into the middle of the courtroom.

We gather around the lawyers’ tables and peek into the computer hook ups, we examine the video screens, and push the “on” and “off” buttons on the microphones.  The jurors are told about interpreters and shown how the interpreters use the equipment situated next to the defense table.

The jurors will then see where the Marshals will sit if we are trying a criminal case.  We also talk about the roving Court Security Officers who will periodically enter the back of the courtroom and the fact that the CSO’s have earphones.

We show the jurors the camera that the United States Marshals Service uses to monitor the courtroom.  We also explain that since we are a pilot court for video recording, we have the capacity to video record trials.  Since the cameras are apparent, we tell the jurors whether the trial will be recorded or not.  If a video recording of a civil trial was expected, we would go into detail about camera angles, juror privacy and the uploading process.  We would turn on the video equipment and show the prospective jurors what a recording looks like.

Colleen, our courtroom deputy supervisor, sits in the witness box to illustrate to the prospective panel how the equipment works.  The prospective jury panel members gather around her as she illustrates and I yap.

Colleen, our courtroom deputy supervisor, sits in the witness-box to illustrate to the prospective jurors how the equipment works. The prospective jury panel gathers around her as she illustrates.  I yap.

Next, we walk over to and look into the witness-box.  The courtroom deputy (CRD) serves as a model and sits in the witness chair.  She manipulates the flat screen that permits the witness to draw things and display the drawing to the jury, the CRD explains the need for the witness to be close to the microphone, and she illustrates how the video presentation equipment (adjacent to the witness-box) can be used by the witness and a lawyer.

We then walk over to the locked door where the Marshals will bring in prisoners.  The jurors are told about the holding cells that are maintained in the middle of the building.

After that, we walk onto the clerk’s bench.  The CRD then shows the jurors her computer equipment, her timing equipment, her digital audio monitoring equipment and so forth.  Juror are told that we can provide them with battery operated headphones during trial to better hear soft-spoken people.  The head phones are demonstrated.  Digital audio recording rather than a court reporter is explained.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial.  This is pretty much the view that the prospective jurors get when the walk onto the clerk's bench.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial. This is pretty much the view that the prospective jurors get when they walk onto the clerk’s bench.

After that, 14 jurors are asked to sit in the jury-box to “test out the chairs.”   Use of the flat screens in the box as well as a large additional flat screen is explained.  The other prospective panel members gather around the jury-box.

We then walk up the stairs to the judge’s bench.  We can accommodate 17 jurors at a time.  The CRD sits in my seat and shows the jurors the computer equipment, panic alarm button, and toggle switches for the lights.  We talk about bench conferences, the reasons for them, and the “white noise” that will be pumped in when a bench conference occurs.

View from the judge's bench.   The prospective jurors go up on the bench during orientation and see what I see.

View from the judge’s bench.  All the prospective jurors go up on the bench during orientation and see what I see.

 

 

 

 

 

 

 

 

 

 

 

After all the jurors have gone up on the bench and looked around, we then go through the recessed door in the wood paneling where I enter and exit the bench.  We go down the steps behind the courtroom and into the jury deliberation room.

In the jury deliberation room, we talk about coffee, the refrigerator and the microwave, where the restrooms are located, the need for jurors to wear their identification badges while in the courthouse, use of the telephone and other practical things.  I explain why I don’t allow jurors to ask questions of witnesses during the trial whether orally or in writing.  We then proceed single file into the courtroom through the “jury’s door” just as they would go if trial were in session.

Colleen, our courtroom deputy supervisor, sits in judge's chair on the bench.  She shows the"panic alarm" and other "secrets" to prospective jurors while I provide the narrative.

Colleen, our courtroom deputy supervisor, sits in the judge’s chair on the bench. She shows the”panic alarm” and other “secrets” to prospective jurors while I provide the narrative.  Every prospective panel member goes onto the judge’s bench.

During all this time, I provide a running narrative of what the jurors are seeing and why they are seeing it.  I try to keep the talk light, and humorous but informative.  My mission is to make sure that when jury selection and the trial begin that the jurors are concentrating on important stuff rather than their physical surroundings.

In short, that’s how I do a jury orientation.  Is it worth the time and effort?   I know this, after I discharge jurors following the trial, I meet with them privately.  I have conducted these interviews for every jury trial I have ever conducted over the last 26 years or so.  I always ask how I could do a better job.   Almost without exception, jurors tell me that the “walk about” was the highlight and I should never drop it.  They say it reassured them, helped them understand and visualize the process and made them feel comfortable.

RGK

The trouble with Social Security disability appeals

This is a photo of "petroleum-free" lip balm with a SPF rating of 15. The SSA apparently handed out this handy health care item as a promotion.  The container urges the user to apply the balm while also applying online for Social Security benefits. Obamacare for the lips? Very weird.

This is a photo of “petroleum-free” lip balm with a SPF rating of 15. The SSA apparently handed out this handy health care item as a promotion. The container urges the user to apply the balm while also applying online for Social Security benefits. Obamacare for the lips? Very weird.

Photo credit: Aric Riley’s photostream per a Creative Commons license.

If you apply for social security disability benefits and your application is denied, review can be sought in a federal district court.  These are significant cases.  “If a claimant wins his or her appeal, the average cost of lifetime benefits is approximately $300,000. Should a claimant fail to prevail, the family may be facing financial ruin.”  Association of Administrative Law Judges, Meeting the Challenges Ahead.

As with bankruptcy law, social security law is complex and arcane.  Unlike my very favorable view of certain specialist tribunals like bankruptcy appellate panels (BAPs), I am a strong believer in review of social security disability denials by federal district judges.

These appeals are both hard and frustrating.  I know because every once in a while I will do one myself from scratch (without help from a law clerk).  When I do, I am confronted with a huge record replete with pages and pages and pages of medical records.  Additionally, and more frequently than I would expect, there is sometimes a mismatch between the opinion denying relief and the record.  And all of this brings me to a delicate but critical point.

The social security appeals we deal with require review of a decision “authored” by an Administrative Law Judge (ALJ) who is employed by the Social Security Administration (SSA).  I know several of these judges, and I have a very high regard for their integrity, competence and work ethic.  But, frankly, there are serious problems with a fair number of the opinions “authored” by ALJs.

The SSA confronts a huge docket of disability claims.  In FY 2011, the SSA received around 3.3 million disability claims and there was a large backlog of cases.  Meeting the Challenges Ahead.   In turn, the ALJs are expected to turn out decisions at a dizzying rate.

For example, between September 29, 2012 and March 29, 2013, which included 122 working days, the number of dispositions per day per ALJ ranged between a high of 3.17 per day to a low of 1.50 per day.  Hearing Office Dispositions Per ALJ Per Day Rate Ranking Report FY 2013 (For Reporting Purposes: 09/29/2012 through 03/29/2013) (segregated by hearing office).  In Omaha, where many of our cases originate, the rate per day per ALJ was 2.44.  Id.  While the SSA is to be complimented for being transparent, these numbers are chilling to me.

To make matters tougher for the ALJs, after they make their decision in chambers, an opinion must be written.  But they don’t write their own opinions.  Rather, they send their notes to a paralegal or sometimes a lawyer to write the opinion.  The ALJ is then supposed to review and approve or edit and then approve the opinion.

However, the quality of the decisions varies greatly according to the skills of the opinion writer and the time the ALJ can devote to editing the opinion.  For example, according to one disgruntled judge, “a lot of the writers are under a great deal of pressure to produce numbers of decisions. You can not have quality and quan[t]ity.  Something has to give. As an ALJ you will not have the time to write your own decisions. You will be lucky to find the time to edit them.”  ALJ Discussion Forum (March 22, 2013) (bartleby).

On April 9, 2013, the President of the Association of Administrative Law Judges wrote a scathing letter to the Acting Commissioner of SSA.  In part, the letter said:

I am writing you concerning a matter of extreme importance to  the Social Security Administration (“SSA” or “Agency”), the AALJ and, we believe, the American people. Succinctly, that matter involves the unlawful imposition by the SSA of an illegal production quota upon administrative law judges responsible for appeals from disability claims denied at the state level. As you know, the Administrative Procedure Act, as well as the Social Security Act, guarantees the decisional independence of all federal administrative law judges. Those federal laws as well as the United States Constitution also guarantee the procedural due process rights of disability claimants. SSA, in derogation of these rights, is enforcing an illegal decisional quota upon administrative law judges and is enforcing a series of illegal “Benchmarks” in furtherance of the quota, requiring administrative law judges to adhere to arbitrary deadlines for designated stages in the hearing process. Perhaps most troubling is that the quota is the result of fiscal, political and other extra-judicial considerations, exactly the type of pressures the United States Supreme Court in Butz v. Economou,438 478 (1978), made clear were anathema to decisional independence. Moreover, this conduct is precisely the type of conduct the U.S. Congress intended to eradicate by enacting the Administrative Procedure Act.

The letter ended with this ominous statement:

Should you choose not to address these concerns, the AALJ is prepared to take whatever steps may be necessary, including litigation, to protect the decisional independence of administrative law judges, the procedural due process rights of the claimants and the interests of the American people. Individual administrative law judges have also expressed an interest in asserting their own rights in conjunction with the AALJ in possible litigation.

To be crystal clear, I have no opinion about the dispute between the ALJs and the SSA.   I favor neither side.  I highlight this dispute only to show that there is a strong “real world” justification for Article III review of important Executive Branch decisions like the denial of Social Security disability claims.  While the review of these decisions are burdensome to federal district judges, they are also as important as other types of litigation that garner much greater attention.

RGK

Deconstructing the mythology of the Standing Bear case

Elmer Scipio Dundy is pictured.  He served from 1868-1896.  The photo is taken from the archives of the United States District Court for the District of Nebraska.

Judge Elmer Scipio Dundy is pictured. He served from 1868-1896. The photo is taken from the archives of the United States District Court for the District of Nebraska.

It t is fashionable among do-gooders to make myths about overcoming racism and federal judges who rule for the downtrodden and against “the man.”  Please don’t get me wrong.  Racism is real, it exists still and it is awful.  And, it is also true that there are courageous judges.  But, myths are unhelpful to an honest understanding of the federal trial courts.  And that brings to me to the subject of this post.

In United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 700-01 (C.C.D. Neb. 1879) (No. 14,891) the court issued a writ of habeas corpus in favor of an Indian and his companions.  The Standing Bear case has taken on a mythic status.  See, for example, Mary Kathryn Nagle, Standing Bear v. Crook: The Case For Equality Under Waax’s Law, 45 Creighton Law Review, 455, 456 (2012) (“To be sure, Judge Dundy’s decision in Standing Bear v. Crook is, doctrinally, the equivalent of Brown v. Board of Education.”)

Despite the fact that many, perhaps most, of the contemporary accounts of the trial came from those who were rabid partisans bent upon publicizing the Indian cause (like the editor of the local newspaper, Thomas Henry Tibbles*), those embellishments continue to be used without skepticism to reinforce the mythology that now fuels the legend of Standing Bear.  In truth, when Judge Elmer S. Dundy, one of my predecessors, decided Standing Bear, his decision was a narrow one.  The decision was not one of mythic proportion, but rather one of studied judicial minimalism.

Having provided this introduction, let’s start with a brief recitation of the facts.

The story is fairly well-known.  The Ponca tribe in Nebraska entered into a pact with the government exchanging their claim to land in Nebraska for reservation land in Oklahoma.  Some later claimed that the Indians thought they were promised land in Nebraska, but there is also countervailing evidence that the Ponca knew full well that the consequence of their agreement meant a move to Oklahoma.**

Once situated in Oklahoma, the Ponca found life hard.  Many in their tribe, including the son of Chief Standing Bear, died, probably from lack of food.  In turn, these hardships caused Standing Bear and a small band of Ponca to leave the Oklahoma reservation and head back to Nebraska.  They were intercepted on the Omaha Indian reservation in Nebraska.  The Indians were detained by Brigadier General George Crook and his men on orders from Washington.  Crook was instructed to return the Ponca to Oklahoma.

Crook was sympathetic to the plight of Standing Bear and his Poncas.  He sought out help for the Indians.  Thomas Henry Tibbles, an editor of the Omaha Daily Herald, took up the Poncas’ cause. Tibbles obtained the services of two skilled Nebraska lawyers, John L. Webster and Andrew J. Poppleton.  Poppleton was the chief attorney for the Union Pacific Railroad.  He was, as they say now, a “heavy hitter.”  Those highly regarded lawyers sought a writ of habeas corpus in the federal district court in Omaha.

There were two primary questions presented.  First, could the Indians use the habeas corpus statute as a jurisdictional hook to garner review of their detention?  Second, as opposed to threatening to take them back to Oklahoma, had General Crook violated federal law by failing to “immediately” present the Ponca to a court in the jurisdiction of the Omaha Indian Reservation where the Ponca had been found?***

As to the first question, Judge Dundy observed that the habeas corpus statute used the word “persons” and not “citizens.”****  Standing Bear, 25 F. Cas. at 697. Because it was obvious that Indians were “persons,”  the judge easily concluded that Indians could use the statute to challenge their confinement.

As to the second question,  the judge recognized that there was a specific federal law that required “every person” found unlawfully on an Indian reservation (such as the Omaha reservation) to be taken “immediately” to the “nearest . . . judicial district to be proceeded against in due course of law.”  Id. at 700.  Since the Ponca were “persons” found unlawfully on the Omaha Indian reservation (their presence was unlawful since they did not belong to the Omaha tribe), Crook had the right to arrest them.  Crook erred, however, by not “immediately” presenting them for potential prosecution in the Nebraska federal court.  As a consequence, Standing Bear was entitled to relief from the unlawful detention.

It is gross hyperbole to suggest that Standing Bear is to Indians as Brown v. Board of Education is to blacks.  In truth, Standing Bear was a cautious decision that made a little new law, but certainly nothing earth shattering.  For example, the Standing Bear decision was in fact supported by precedent. See, e.g., Ex Parte Dos Santos, 7 F. Cas. 949 (C.C.D. Va. 1835) (No. 4,016) (ordering the release of an alleged murderer from Portugal even though he was not a citizen of the United States because he could not lawfully be detained in this country).

As the Supreme Court later observed, by the time Standing Bear was decided, it had been the law for more than four decades in America that “any person, whether a citizen or not, unlawfully restrained of his liberty, [was] entitled to that [habeas corpus] writ.” Elk v. Wilkins, 112 U.S. 94, 108 (1884) (discussing Standing Bear and citing, among other cases, Ex Parte Dos Santos).*****

To sum up then, Standing Bear was a minor but not insignificant case.  For the first time, it allowed Indians access to the federal courts.  However, the mythology surrounding the decision is unfounded and should be stripped away.  Judge Dundy did what cautious yet concerned federal district judges have done for a long time.  He read the law for its plain meaning and then he issued a narrow decision accordingly.  That is plenty good enough.

RGK

*Tibbles in particular is viewed as a “questionable source[]” by trained legal historians.  See, e.g., Patrick G. Blythe, Book Review, Stephen Dando-Colins, Standing Bear is a Person: The True Story of A Native American’s Quest for Justice, 49 Am. J. Legal Hist. 462 (2007).  Parenthetically, Tibbles is the person who described Standing Bear’s “I am a man” speech and it is that description that is frequently quoted.  Intending no disrespect to the memory of Standing Bear, one wonders whether to trust Tibbles’ account.

**Although no site was actually selected, there is historical evidence that in 1878 eight Ponca chiefs, including Standing Bear, visited the Osage reservation in Oklahoma to select a site in anticipation of their move.

***There was also a third question about whether Indians could sever their ties to tribes (“expatriation) and thus avoid control of the government as “Indians.”  Judge Dundy, while believing they had that right, did not specifically determine whether Standing Bear and his group were in fact “expatriated.”  Id. at 699.  (It is important not to confuse “expatriation” with “citizenship” as both Judge Dundy and the Supreme Court would make clear just a few years after Standing Bear.)

****As a class, Indians did not become citizens until passage of the Indian Citizenship Act of 1924.

*****A few short years after Standing Bear was decided, Judge Dundy himself made it clear that the reach of Standing Bear was very limited.  In Elk v. Wilkins, Judge Dundy, sitting with another judge as Circuit judges, denied an Indian’s claim that he was a “citizen” because he had left his tribe.  The Supreme Court affirmed.  The Court held that an Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe and taken up his residence among the white citizens of a state, but who has not been naturalized or taxed or recognized as a citizen, either by the United States or by the state, is not a citizen of the United States, within the meaning of the 14th Amendment, which declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.”

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.

RGK

*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.

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

Kopf’s big blunder(s)

Mistake

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.

RGK

(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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