President Truman, Justice Jackson, the prosecution of the Nazis and the value of transparency

I have a strong recollection of speaking with my father* on the subject of whether it was fair to try German officials for their deeds during the WWII inasmuch they were following German law. This must have been sometime in 1954. I have no recollection of how the subject came up or why my father thought a child could understand what he was speaking about. Anyway, that is the first time I had heard the words “ex post facto.” My father, like many Americans, was never entirely sure that the war crimes trials were fair despite the fact he held a deep loathing for the monsters of the Third Reich.

Thus, it was before the trials started that Justice Jackson and the American government faced a public that was not entirely certain about the simple justice of the endeavour. From the Jackson List and the estimable Professor John Q Barrett, I now know that the Justice and the President relied on transparency as a way of building the support of the American public for Jackson’s mission:

During the course of his seventeen-plus months as United States Chief of Counsel for the prosecution of Axis war criminals in the European theater, Justice Robert H. Jackson wrote and delivered five (at least) monumental, eloquent and enduring statements about his work:

  • On June 6, 1945, Justice Jackson delivered a preliminary report to President Harry S. Truman;
  • On November 21, 1945, Jackson delivered his opening argument before the International Military Tribunal at Nuremberg in Allied-occupied former Germany;
  • On February 28, 1946, Jackson delivered to the IMT his argument defending the criminal charges against the Nazi organizations that he was prosecuting in addition to the individual defendants;
  • On July 26, 1946, Jackson delivered his closing argument before the IMT; and
  • On October 7, 1946, following the completion of the trial and Jackson’s return to Washington and the Supreme Court, he delivered his final report as Chief of Counsel, along with his letter of resignation, to President Truman.

*          *          *

The first of these, Justice Jackson’s June 1945 report to President Truman, summarized Jackson’s first forty days of work as the President’s appointee and Jackson’s views on how he hoped to proceed.

At the start of this report, Jackson described his activities since May 2nd, when the President had announced Jackson’s appointment:

In brief, I have selected staffs from the several services, departments and agencies concerned; worked out a plan for preparation, briefing, and trial of the cases; allocated the work among the several agencies; instructed those engaged in collecting or processing evidence; visited the European Theater to expedite the examination of captured documents, and the interrogation of witnesses and prisoners; coordinated our preparation of the main case with preparation by Judge Advocates of many cases not included in my responsibilities; and arranged cooperation and mutual assistance with the United Nations War Crimes Commission and with Counsel appointed to represent the United Kingdom in the joint prosecution.

Jackson then covered, in some detail, five topics:

1.                  how his work to prosecute major war criminals was being coordinated with other, ongoing war crimes prosecutions;

2.                  his preparation of the American case, his coordination with U.K. counterparts, and his communication with French and U.S.S.R. representatives as they worked toward agreement on an international plan of action;

3.                  the basic features of his prosecution plan, including his commitment to fair trials as a desirable alternative to summary executions;

4.                  the prosecution’s validity in international law, and as a next step in international law’s development; and

5.                  his sense of urgency, both to commence trial and to complete his assignment.

Jackson finished writing his report on the morning of Wednesday, June 6, 1945.  He delivered it to President Truman at the White House late that afternoon.

In their meeting, which was brief, the President stated his approval of the general make-up of Jackson’s plan and expressed particular appreciation for his report’s closing paragraph, which thanked Truman for his personal encouragement and support.  They agreed that Jackson’s report, which although “private” really was a state paper written for the public, would be released promptly.

The White House released Justice Jackson’s report on the next morning, June 7th.  That afternoon, President Truman responded as follows to press questions about the report

Q. Mr. President, are you in complete agreement with Justice Jackson’s report?

A. I am in entire agreement with it.  I think it’s a good report, and I think it shows just exactly what we are attempting to accomplish.

 Q. Mr. President, can you shed any light on one section of that report, where Justice Jackson said that it was the inescapable responsibility of this Government to prosecute these war criminals, even if this Government had to do it alone?

 A, That’s just—  It means just exactly what it says.  That is what we propose.

 Q. Is there any prospect that we will have to do it alone?

 A. No, no.  That’s just to make it emphatic.

 Q, Any prospect of an early answer from the other countries on our suggestion for a military tribunal?

 A. Yes, I think so.  I don’t think there will be any delay on that.

 Q. Mr. President, can you tell us—

 A. The British have already come in, and I am sure the Russians and the French will.

In ensuing days, Jackson’s report—about 5,700 words—was published in most American newspapers and in many newspapers around the world.  It became a topic of very positive comment and, going forward, a reservoir of governmental and public support for Jackson’s work as U.S. Chief of Counsel in London, where the international negotiations soon commenced, and then in Nuremberg throughout the trial year.

To read Justice Jackson’s full June 1945 report to President Truman, click here.

RGK

*My father served in North Africa and was awarded the Purple Heart. Somewhere, I have a  photo of him guarding German POWs.

An explanation, but maybe a weak one

Yesterday I posted about the Ninth Circuit oral argument in the Baca habeas case. I introduced the post this way: “I am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.” In other words, I distinguished between my experience with federal prosecutors, and the apparent misbehavior of one or more state prosecutors in the Baca matter.

That distinction drew sharp criticism.  SHG at Simple Justice wrote:

Damn those state court prosecutorial scum. Thank the lord that nothing like that could ever happen in federal court, right Ted Stevens? Well, at least it could never happen in a Nebraska federal courtroom, because there may be some dolts, “but at least they are honest idiots.”

Sure.

It’s no longer deniable that it happens, but that doesn’t change the deniability of it ever happening right in front of our faces but we didn’t catch it. Or we didn’t want to catch it. Or we like those guys, so we just can’t bring ourselves to believe that they could do something so wrong. After all, people we like never do anything wrong.

Better to be an honest idiot than lying prosecutorial scum.

Another commentator on Twitter, added that my introduction was a “laughably bogus conceit that . . . starts off with a paean to the honesty+wonderfulness of fed prosecutors.” bmaz (12:35 PM – 24 Jan 2015).

The author of the article that I linked to in my earlier post commented, “IF you think it doesn’t happen–and DELIBERATELY–in the federal system, read LICENSED to LIE: Exposing Corruption in the Department of Justice. Unfortunately, it does. No one is immune from the targeting that is going on now, and one of the worst has just been named to head the fraud section of the Department. see.LicensedtoLie.com.” (Sidney Powell says: January 24, 2015 at 1:29 PM) (capitalization in original).

I think it would be good to explain myself, although you may find my explanation weak and unconvincing. Nonetheless, here goes:

* Like you, I am the product of my experiences. They are deeply ingrained.

* Right out of law school, and for two years, I clerked for a federal appellate judge on the Eighth Circuit, Donald R. Ross, who was earlier both a war hero and the youngest United States Attorney appointed in the history of Nebraska. I witnessed first hand his insistence that federal prosecutors turn square corners. He beat into me, and others, the principle that federal criminal law viewed from the chair of the federal prosecutor was not about winning but rather about procedural and substantive fairness. That Judge William Webster, who served as a United States Attorney, United States District Judge, United States Circuit Judge, head of the FBI and head of the CIA, lionized Judge Ross on the occasion of the judge’s memorial service punctuates the point I am trying to make. I grew up in an environment where federal prosecutors were expected to be, and most often actually were, a very substantial cut above.

* After 28 years as a federal magistrate judge and district judge, I have witnessed countless examples of Nebraska federal prosecutors playing it entirely straight up and doing so when they could have stood silent and no one would have been the wiser.

* While I do not want to slander most Nebraska state prosecutors who are entirely ethical, I have too often seen in habeas cases or heard (in the case of a wiretap) state prosecutors behaving badly. My prosecution of the impeachment of Nebraska’s Republican Attorney General gave me a jarring and concrete reason to be skeptical about state prosecutors when compared to their federal counterparts.

* A former federal prosecutor and FBI agent with 42 years of experience brought Baca to my attention because he was appalled by the apparent misbehavior of one or more California prosecutors. That was entirely consistent with the pride I had witnessed in other federal prosecutors as they did the right thing day in and day out without any fanfare while expecting everyone else to do the same thing.

* To the degree that Judge Kozinski, a judge who I respect greatly, believes there is an “epidemic” of Brady violations in the federal system, that has not been my experience here in fly over country.  As a result, I did not want my earlier post to be an implicit endorsement of the judge’s criticism of federal prosecutors for violating Brady.

For those of you who read this blog with some degree of regularity, you will remember that this post is not the first one where I have tried to explain what many see as my tendency to be credulous when it comes to law enforcement. See Why Does Kopf Believe Cops Most of the Time?  My antidote is transparency with the hope that my implicit biases will be checked by such acknowledgements. As I have said before, that is not a perfect answer, but it is the best I can do with what little I have.

RGK

 

 

 

Are federal trial judges who write bluntly in law reviews, blogs, etc., “flashers” who expose too much of themselves?

If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity?

Photo credit: sylvar. "The Flasher, with trenchcoat closed" per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

Photo credit: sylvar. “The Flasher, with trenchcoat closed” per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

 

I have reason to think that this blog may be part of a piece sometime in the future by a respected legal news outlet. I would guess that the article may be critical. If that occurs, I welcome both the attention and the scrutiny. And that brings me to my dear friend, Judge Mark Bennett, a truly wonderful person, a fantastic, but very opinionated, writer of law review articles and a great trial judge.

Mark was recently the subject of an article written by the estimable Alison Frankel, entitled When judges say too much, Reuters (November 18, 2014). The article deals with Mark’s decision not to recuse himself in a products liability case involving a smoker.

Judge Bennett

Judge Bennett

In part, Ms. Frankel wrote:

This homily was sparked by a recusal opinion issued Monday by U.S. District Judge Mark Bennett of Sioux City, Iowa. Bennett is overseeing a former smoker’s suit against R.J. Reynolds and Philip Morris as a visiting judge in Jacksonville, Florida. On Oct. 31, Philip Morris’ lawyers at Shook Hardy & Bacon and Arnold & Porter asked the judge to take himself off the case because of his 2013 article in Voir Dire, a magazine put out by the American Board of Trial Advocates.

Bennett’s article, “Obituary: The American Trial Lawyer, Born 1641-Died 20??,” lauded a lost breed of lawyers who are “perhaps more responsible for our enduring freedoms and the enforcement of our nation’s laws than any other,” he wrote. Through the good work of trial lawyers, he wrote, “American products, from airplanes to scalding coffee, pharmaceutical drugs and scores of others, are safer and kill and maim far fewer Americans.” One of the trial bar’s accomplishments, according to the judge, was that “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.”

She concluded her piece this way:

Considering the case law, I doubt Philip Morris can force Judge Bennett off the case. The company’s recusal brief focused on judges’ roles in jury selection in these tobacco liability cases in Florida, so maybe Philip Morris just wanted to prod Bennett into being careful about fairness during voir dire. (Stanley Davis of Shook Hardy and Sean Laane of Arnold & Porter didn’t respond to email requests for comment.)

Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.

I told the judge in an email that I believed Philip Morris was justified in questioning his impartiality. He said (very politely) that the opinion speaks for itself and that it would be inappropriate for him to comment further on a case before him.

I urge you to read the entirety of Ms. Frankel’s piece and the judge’s written decision explaining why he would not recuse himself. What do I think?

First, Judge Bennett was clearly correct as a legal matter. He had no reason to recuse himself. Experienced federal trial judges don’t worry about recusal motions, they are frequently filed but seldom granted. Those are simple legal questions, easily answered as Mark’s clear opinion demonstrates. Moreover, most of the time, we have plenty of judges who can take a case from a colleague if recusal is warranted.

Second, Ms. Frankel makes a more important point that is very much worth remembering. When federal trial judges speak candidly in their extrajudicial writings we take risks. Ms. Frankel explains:

I . . . believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.

This is matter of balance. It is not an easy balance to strike. But, I know this: Given the present state of affairs in the federal judiciary, transparency is more important than the fear that faith in the system may erode if we express ourselves too clearly, too forcefully, and, occasionally, too bluntly in law reviews, blogs and the like.

There will be times when we falter. Indeed, Ms. Frankel fairly links to my ill-advised attempt at humor (On being a dirty old man and how young women lawyers dress) while making points I thought were worth making about the appearance of women trial lawyers in the courtroom. That admitted, judges like Mark Bennett do the public (and the bench and bar) a great service “when they get real.” Like the “flasher” pictured above, we can do so without significant harm to the federal judiciary so long as we remember to keep our trench coats closed.

RGK

 

 

“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.

wright

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.

RGK

*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.

Judge Posner says: The American people know more about the CIA than the federal judiciary.

A recent Harvard law graduate from Nebraska, while studying for the bar and umping little league games, graciously took time to write me about a fascinating interview with Judge Posner in the ABA Journal. See Joel Cohen, An interview with Judge Richard A. Posner,  ABA Journal (Jul 1, 2014 5:20 AM CDT). I strongly recommend reading the interview.  The interviewer does a fantastic job of drawing Posner out on all manner of things including his public writings and his public quarrel with Justice Scalia.

But, for present purposes, I will concentrate on one aspect of the interview. Then I want your take on Posner’s assertions and the implications we should draw from them. By the way, his views get to the heart of this blog.

Here is the exchange I want you to concentrate on:

JC: Do you have any concern when you engage in, for lack of a better word, a dust-up with Justice Scalia that it deflects from the respect the judiciary might have in the eyes of the public, or even the bar itself?

RAP: I don’t care about that.

JC: How can that be?

RAP: Because I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

JC: So, Judge, you now have an opportunity to air laundry that perhaps hasn’t been aired.

RAP: It’s not a matter of airing dirty laundry; it’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary. For example, there’s wasteful spending on the courts (particularly on the courthouses, which often are wastefully large). There’s a work-ethic problem for some judges—you always have that when you have tenure; you have it with academics, with civil servants. But the most secure tenure is that of a federal judge. Some judges work very hard until they drop—others don’t. And of course judges are not uniformly able. There’s also a problem of excessive delegation to staff, mainly law clerks. And at least three circuits, the 5th, 6th and 9th, now have pre-assignment of judges. A case is assigned to a judge before argument, and he is expected to circulate a memo about the case in advance of argument to the other judges on the (normally three-judge) panel. The danger is that the other judges won’t prepare adequately, feeling it’s the assigned judge’s case. I consider that a questionable practice, deserving full examination. And there are other problems as well, including problems with the overall management of the federal judiciary.

Is Posner right? What are the implications of sitting federal judges (active or senior) writing (or speaking about) “dirty laundry? What about blogs?  Add whatever thoughts come to your mind!

Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.

I conclude with this idea.  A recent poll of our public showed that only 30% of the People (a record low) have confidence in the Supreme Court. That is a very bad thing. As Alexander Bickel said many years ago, in The Least Dangerous Branch: The Supreme Court at the Bar of Politics and The Morality of Consent, judicial review stands in stark, very stark, tension with democratic theory. Thus the Supreme Court (and probably all federal courts ) must play a statesman-like role in national controversies leading public opinion, albeit infrequently, shyly, carefully and ever aware that survival of our anti-democratic courts turn on a public consensus that the federal courts have a central role to play in our democratic society even though the judges are unelected and life-tenured. If we lose the support of the people, the federal judiciary is doomed. For me, complete and utter transparency is the only effective antidote to the cynicism that abounds regarding the federal judiciary.

Enough. Tell me what you think about Judge Posner’s views and the implications we should draw from them. I am very interested in your thoughts.

RGK

*For what it is worth, Bickel, more than any other contemporary scholar, shaped and continues to shape my view of the proper role of federal judges writ large.

He’s alive!

I thought I had shut down this blog forever but something came up that warrants reopening.

In December of 2013, I wrote that I suffered from blood clots in the left leg. E.g., Merry Fucking Christmas. On January 1, 2014, I announced that I was ending the blog. Among other things, I wrote that: “Although I am truly worn out, I am OK. I am not quitting because of health reasons.” I didn’t know it then, but I was wrong.

Since my attempt to kill the blog, the pain in my left leg worsened and the swelling refused to abate even though the new miracle drug for blood clots that I took was working. As a result, I began a magical mystery tour of doctors including, but not limited to, my general practitioner, a cardiologist, an orthopedic surgeon, an interventional radiologist, a gastroenterologist and a oncologist/hematologist.

Yesterday, I learned that I have Hodgkin’s lymphoma. For what it is worth, that is the “good” kind.  It also explains my exhaustion and the blood clots that suddenly appeared while I was in Sioux City trying a case in December of 2013.

My very experienced oncologist tells me that the disease is at stage III or IV and a bone marrow biopsy next week will determine whether it is stage III or IV. That is not nearly as dire as it sounds. “Hodgkin lymphoma is one of the most curable cancers. Cure is even more likely if it is diagnosed and treated early. Unlike other cancers, Hodgkin lymphoma is also curable in its late stages.” Hodgkin Lymphoma.

Because I made such a fuss about legal realism and transparency while this blog was active, remaining silent seemed dishonest. I won’t start treatment (chemotherapy and possibly radiation) until shortly after March 17, 2014. Periodically, I will let you know how I am doing.

By the way, I am pretty proud of myself. It seems that I have resurrected Generalissimo Francisco Franco. (He’s alive!) And that, my dear friends, is the perfect exemplification of Article III power.

RGK

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