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

Even more on snipes

A friend of this blog sent me a neat note today.  I reprint part of the note with a link that you should click on for lots of great information and truly wonderful photos.  That is:

Rob Ripma, is very active in birding. I sent him your post about snipes. . . . I think he was impressed with your photo of a snipe.  If you are interested in birds, his blog is [entitled NuttyBirder].  Rob and his brother Eric take some fantastic photos of birds.

It is fascinating how the law can take you to places you never imagined.

RGK

Flowers

It was this time last year when my wife, Joan, began to lose weight.  I tossed it off to being exhausted as we prepared to see all three of the kids (and their kids) for the first time in a long time all together at our home.  The wry New Mexico oldest and her wonderful husband (plus their canine terribilis),  the group from China (with P and M from a recent post), and Fletcher (from a recent post) and his parents from Australia.

In August, the day after everyone left, Joan went to our family doc.  He took one look at her, and sent her to the gastroenterologist. A hurry-up colonoscopy followed by further probes at the hospital that same day revealed cancer. A rush to the medical oncologist followed by a visit to the radiation oncologist mapped out an aggressive treatment regimen. Then months and months of chemotherapy and radiation therapy followed. The chemo and radiation therapy were administered together.  The chemo was awful but the radiation, literally frying the lower abdomen and the nether regions, was far worse.* But, it worked. The cancer is gone, at least for now.

Below is a photo of flowers Joan picked yesterday in her garden.  She loves to garden, and she is very good at it.  With her strength returning, and although remaining very thin, Joan spends hours on her knees in the dirt.

Some things are more important than others.

RGK

*Being a good Catholic, Joan never complained, not even once.  This was just another “gift” from God.  It took all I could to restrain myself from saying, “If cancer, chemo and radiation are gifts from the almighty, he is one sick son of a bitch.”  But, then again, I accept all gods, even ones from Rome, at arm’s length, sorta like the way I approach everything else.

photo (1)

A new and shocking revelation on going to Texas

I have it on very good authority that my earlier post about going to Texas was slightly incorrect.  It turns out, however, that things are even worse than I had thought.

My confidential informant advises that:

All of the men’s toilets are in Arkansas.  The women have to go to the Texas side to do their business.  Also, and this is embarrassing in 2013 (but is illustrative of the past), the women’s toilets in the building have urinals plus toilets.  We have been told that in 1933-35, when the courthouse was constructed, no one expected women to come to the courthouse or if they did, stay long.

I am speechless.

RGK

Get rid of diversity jurisdiction

Conservatives in Congress want to downsize government including the federal judiciary.  Most particularly, these folks want to get the federal judiciary out of the daily lives of our citizens, and they also want to empower the states to function without federal judges mucking with state law.  If the conservatives who are behind this movement are intellectually honest then there is a real easy way to begin accomplishing that task.  Moreover, this easy way won’t gut the ability of the federal judiciary to function in those spheres that even  conservatives agree are proper.

Congress could do away with diversity jurisdiction.  Sure, that would mean that some corporations would  find themselves in “hell holes” where judges and juries are overly sympathetic to plaintiffs.  On the other hand, there are many other jurisdictions that are not particularly plaintiff-friendly.  For example, Nebraska doesn’t allow punitive damages for plaintiffs in most cases.

Diversity jurisdiction for the federal courts once made sense.  No so anymore.  I would be happy to trade diversity jurisdiction for an end to (or even a lessening of) judicial sequestration.  And, even if that trade-off were not possible, ending diversity jurisdiction would allow the federal judiciary to concentrate its reduced resources on federal questions that really matter.*  This is a “conservative” idea that intellectually honest legislators of all stripes could embrace.

Any takers?

RGK

*Why in the hell should I know the slightest thing about the comparative negligence law of Nebraska?

Crossing the line

I don’t know why, but my thoughts turned this weekend to a time fairly long ago when,as a magistrate judge,  I sentenced people to jail for crossing the line at  StratCom headquarters at Offutt Airbase in Omaha.   These folks, part of the Catholic Workers movement, protested against the military and nuclear weapons by crossing a line at the base entrance.  Two fellows in particular come to mind.

One was Father Frank Cordero.  Big Frank, a former wrestler, raised hell throughout Iowa and Nebraska protesting against various and sundry things.  He was (and I presume still is) a smart ass.  One time, after I sentenced him to jail for six months, he surrendered to the US Marshals with a cross made out of hack saw blades.  I think he ended up at MCC in Chicago.  If he did, he wasn’t laughing.

Photo credit:  Frank Cordero and

Photo credit: Frank Cordero and No-Nukes.org

The other fellow I came to know was Rich.  He crossed the line, but agreed to abide by probation.   I learned that Rich operated a shelter for men down on their luck and often just out of prison.  About that time, I married Joan after the death of my first wife.

True to her faith, Joan insisted that my kids learn about the poor.  So, I contacted Rich.  Over the next several years we spent Thanksgiving with Rich’s guys delivering turkeys in North Omaha.  It opened eyes wide.  Later, we lent Rich a little money to keep the shelter running.  Rich repaid us in full.  But, he gave us so much more.

RGK

Judge “Buzz” Arnold, polymath, legal historian and former federal district judge

I am a big fan of legal history.   I spend a fair amount of time lending my meagre talents to the preservation of the legal history of the judges and courts in the Eighth Circuit as Chairman of the Board of The Historical Society of the United States Courts in the Eighth Circuit.

I am especially fond of legal history written by judges especially those who started their careers as federal trial judges.  How they find the time to do their legal work and turn out distinguished legal histories is beyond me.  So, today, I want to briefly highlight a great judge and a world-class legal historian.

While I am not generally a fan of portraits, this is one of my favorites.  It perfectly captures this gentle man.

While I am not generally a fan of portraits, this is one of my favorites. It perfectly captures this gentle man.

To say that Judge Morris S. Arnold (Buzz), of the United States Court of Appeals for the Eighth Circuit, is brilliant understates the truth.  The word “polymath” is a perfect description of the judge.  In addition to being a highly regarded legal scholar, the judge is a historian of the first rank.

Like his brother (the late (and much beloved) Richard Arnold who served with Buzz on the Court of Appeals), Arnold attended Phillips Exeter Academy in New Hampshire, graduating in 1959. Thereafter, he received a bachelor of science degree in electrical engineering in 1965 from the University of Arkansas in Fayetteville. He then attended the University of Arkansas School of Law in Fayetteville, having received the LL.B in 1968. He received master of laws (LL.M), and doctor of juridical science (SJD) degrees from Harvard University Law School in Cambridge, Massachusetts, in 1969 and 1971, respectively.

He was a professor at the Indiana University School of Law in Bloomington from 1971-1977. He was then the university vice president and professor at the University of Pennsylvania Law School from 1977–1981, when he returned to Arkansas as a professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock from 1981 to 1984.  In 1985, he returned to Indiana as Dean of the law school.

On October 23, 1985, President Ronald W. Reagan nominated Morris Arnold to a new seat as judge of the United States District Court for the Western District of Arkansas, based in Fort Smith, Arkansas.  The Senate confirmed his nomination on December 16, and he received his commission on December 17.  Arnold left the district court in 1992 to assume a judgeship on the United States Court of Appeals for the Eighth Circuit.*

Judge Arnold is the author of books, articles, book reviews, and speeches, mostly on the subjects of English legal history and colonial Arkansas. His research at archives in Spain and France allowed him to portray a colonial Arkansas previously unknown.  His book The Rumble of a Distant Drum: Quapaws and Old World Newcomers, 1673-1804 won the Booker Worthen Literary Prize and J. G. Ragsdale Book Award in Arkansas History. Arkansas: A Narrative History won the Arkansania Award.

In 2001 he was awarded the Porter Literary Prize for his body of work on colonial Arkansas. Most significantly, in 1994 the French government named him a Chevalier de l’Ordre des Palmes Académiques for his work on eighteenth-century Louisiana.

Buzz served as president of the American Society for Legal History and as vice president of the Selden Society (the only learned society and publisher devoted entirely to English legal history). As ASLH president, he helped establish the Law and History Review, which is recognized internationally as the leading journal in the field of legal history.  In 2012, at its annual meeting, the ASLH specially recognized Judge Arnold for his extraordinary contributions to the field of legal history.

Not bad for a really nice guy who started his federal judicial career trying cases in Ft. Smith.

RGK

*One of my few claims to fame is that my confirmation hearing to be a district judge in 1992 was held on the  same day that Buzz’s had his confirmation hearing regarding his nomination to the Court of Appeals.  That’s when I first had the opportunity to meet Buzz.  I have been in awe ever since.

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

Called to Justice

Photo credit:  Lincoln Journal Star (Warren Urbom as a young judge).

Photo credit: Lincoln Journal Star (Warren Urbom as a young judge).

One of the purposes of this blog is to describe what federal trial judges really do.   Although I could never do it in his beautiful and gentle manner, I have a good role model just down the hall.

The man I was appointed to succeed as a federal district judge here in Lincoln, Senior Judge Warren K. Urbom, has written about what it is like to be a federal trial judge with great candor and uncommon wisdom.  And he has written about so much more.  See Warren K. Urbom, Called to Justice, The Life of a Federal Trial Judge, (University of Nebraska Press, Law in the American West Series, 2012) (forward by Chief Judge William Jay Riley of the United States Court of Appeals for the Eighth Circuit).

Numerous luminaries have expressed glowing praise for Warren’s book.  They include Deanell R. Tacha, Dean of Pepperdine Law School and former Chief Judge of the 10th Circuit; former Director of the FBI and CIA and former judge on the 8th Circuit, William Webster; Bob Kerry, former U.S. Senator and former President of the New School in New York; and Roxanne Dunbar-Ortiz, author of the Great Sioux Nation: Sitting in Judgment of America.

Here is a quick summary of Called to Justice, the Life of a Federal Trial Judge:

Early in his judicial career, U.S. District Judge Warren K. Urbom was assigned a yearlong string of criminal trials arising from a seventy-one-day armed standoff between the American Indian Movement and federal law enforcement at Wounded Knee, South Dakota. In Called to Justice Urbom provides the first behind-the-scenes look at what quickly became one of the most significant series of federal trials of the twentieth century. Yet Wounded Knee was only one set of monumental cases Urbom presided over during his years on the bench, a set that in turn forms but one chapter in a remarkable life story.

Urbom’s memoir begins on a small farm in Nebraska during the dustbowl 1930s. From making it through the Great Depression and drought to serving in World War II, working summers for his father’s dirt-moving business, and going to school on the G.I. Bill, Urbom’s experiences constitute a classic American story of making the most of opportunity, inspiration, and a little luck. Urbom gives a candid account of his time as a trial lawyer and his early plans to become a minister—and of the effect both had on his judicial career. His story offers a rare inside view of what it means to be a federal judge—the nuts and bolts of conducting trials, weighing evidence, and making decisions—but also considers the questions of law and morality, all within the framework of a life well lived and richly recounted.

University of Nebraska Press

What’s my take on the book?  If you like exquisite prose, you will love this book. If you like history, you will love this book. If you like the law, you will love this book. If you like an autobiography that reads like a novel that keeps you up at night, you will love this book. Most of all, if you want to rekindle your belief in the basic goodness of this country, you will love this book.

RGK

Resistance is futile–more about hyperlinks

Photo credit:  Freelancer1's photostream per Creative Commons License.

Photo credit: Freelancer1’s photostream per Creative Commons License.

Yesterday, I said that fairly soon lawyers who practice in at least some of the federal district courts will be required to hyperlink to both cases and documents.  I hope that happens, and very soon.

Today, I want to hyperlink to two good resources so the lawyers who read this blog can prepare to be “assimilated.”  As the Borg said, “resistance is futile.”

First, read the “Attorney Guide to Hyperlinking in the Federal Courts” (under “Written Procedures for Filing”).

Second, use the interactive tutorial for hyperlinking to documents that have previously been filed (like an affidavit).  The tutorial is entitled “Creating Hyperlinks to Other Filings in CM/ECF”  (under “Training”).

We are Borg.  Have a nice day.

RGK

Note:  The foregoing hyperlinks are to the external web site of the United States District Court for the District of Nebraska, under the “Attorney” and “Electronic Case Filing (ECF)” buttons.

%d bloggers like this: