Given the dateline, yesterday was Halloween in China and pretty butterflies were all about

P with her butterfly wings; Halloween, 2013, Shenzhen, China

RGK

My simple (minded) answer to a simple question

Yesterday, I asked if jurors in criminal or civil cases should be allowed to question witnesses. That post generated a good discussion. I will tell you what I do and why I do it in a moment. I’ll give you some initial observations before I explain my practice.

First, my esteemed colleague from Nebraska, Judge Warren Urbom, widely regarded as one of the best trial judges in the nation, has been a proponent of jury questioning for several decades. Here is what Jan Crawford and her fellow reporters wrote in the Chicago Tribune, in the “On Law” section, on March 29, 1994 regarding Urbom and juror questioning in a high-profile criminal case that Warren was trying in Chicago:

By allowing jurors to question witnesses, visiting U.S. District Judge Warren K. Urbom has set a precedent for federal jurists here.

More importantly, the Lincoln, Neb., senior judge, who is known for his legal acumen and fairness to litigants, said he hopes inquisitive jurors will fill any “holes in the evidence.”

“They have questions, too, and they want the opportunity to ask them,” said Urbom, in town to preside at the bombing conspiracy trial of Herbert “Mickey” Feinberg, an associate of convicted pornographer Reuben Sturman.

The case stems from a 1992 plot gone awry to extort money from several Chicago adult bookstores. Instead, a pipe bomb exploded prematurely, killing one bomber and injuring another.

Most of the jurors’ questions in the continuing trial-funneled through Judge Urbom, who poses them to those on the stand-have been reserved for Martin Gavin, a member of the police bomb squad. He told of very gently recovering a live pipe bomb from the grisly scene at Dearborn and Division Streets.

“It fell out of a rolled-up pair of pants (taken by firefighters from a bombed-mangled car) and right onto my foot,” Gavin deadpanned.

 A 24-year veteran of the bench, Urbom said he decided to allow jurors to ask questions in both civil and criminal cases-the latter with the approval of counsel-as a logical extension of the jury’s fact-finding mission.

So the experiment began, and the 8th Circuit Court of Appeals has allowed Urbom to let jurors speak up. But that court, Urbom conceded, “is not enamored with the idea.”

Second, there is little doubt that allowing jurors to ask witnesses questions (orally or in writing) would increase juror satisfaction. That said, I have not seen any convincing empirical evidence that jurors who are able to ask questions render better verdicts than jurors who are not able to ask questions.

Third, I am not convinced that because federal trial judges can ask questions that means jurors should be able to do so too. After all, federal trial judges are legally trained, jurors are not. Anyway, most federal trial judges that I know ask very few questions of witnesses during jury trials. In short, it is a false analogy to compare judges to jurors.

Fourth, and most importantly, Judge Urbom is quoted in the Crawford article as saying that he hoped inquisitive jurors would fill any “holes in the evidence” through the device of jury questioning.  That is precisely what I don’t want to happen.

As Jeff Gamso, a very experienced criminal defense lawyer, stated in his comment (October 30, 2013 at 10:13 am) we have an adversarial, rather than an inquisitorial, process. Jury questioning can (and does) change the nature of the process. For example, consider this comment from a former juror to my post on this subject:

I recently served on a criminal jury in Nevada. Jurors are permitted to write questions, submit them to the court, and the attorneys and judge go in the back room and I assume argue over which are to be answered because the judge decides which ones get answered and the others are just tossed. The question are indeed identified to the judge and counsel by juror name and number.

I found the process to be important because a number of very good legal questions went unasked by the prosecution, I assume due to lack of experience. Questions to expert witnesses such as “Are you an expert in forensic psychiatry (expert was testifying on the subject) and is there a certification given in that discipline? ” Pretty basic stuff you’d expect one side to use to impugn the other, but was not asked by counsel. Some of the questions made the witnesses squirm because they were so on point.

trader says: October 30, 2013 at 3:52 pm

Put bluntly, “filing in holes” in the evidence is not the proper function of jurors, so say I.

There you have it. I don’t allow jurors to ask questions orally or in writing. That’s true even if the lawyers like it!

But, here is a secret. When I was a young judge, I was just too damned afraid of the loss of control to allow jury questioning. I had no highfalutin reasons for my decision. Now, I am too old to change. Frankly, if this post has any real significance, it is in that truth (Kopf was too scared to allow the practice when he was a young judge and he is too old now to change) that you will find it. That’s “legal realism” at its purest, my friends.

RGK

A simple question

Image credit: Sketchdog per Creative Commons license.

In a couple of hours, the lawyers will make their closing arguments in my criminal case. After that, the jury will deliberate and we’ll wait for the verdict. That has prompted me to think about trying cases to juries and a simple question. Should jurors in criminal or civil cases be allowed to ask questions of witnesses during trial?

RGK

The “obstruction” call and legal reasoning–the winners and the coveted prize

I have carefully examined the arguments in favor of my hypothetical proposition that the ump screwed the pooch on the obstruction call. Jay Rempe (October 28, 2013 at 1:50 pm) and Gov’t IP Lawyer (October 28, 2013 at 2:40 pm) tied for best brief. Accordingly, they are both declared winners.

Their arguments using textualism, with old testament vigor, to arrive at the desired result warrant high praise indeed. Accordingly, each of them should send me their postal addresses via this blog’s e-mail address (find it here). In return, I will send them the envy producing prize. That is, both will receive a “Gold Tone Lapel Pin with Madison Head” proudly displaying the “Federalist Society” name and costing the undersigned five bucks a pop. It just can’t get any better than that!

RGK

PS I was tempted to award a second place prize to Nate Brunner (October 28, 2013 at 6:11 pm) since, as I remember it, his accuracy as a catcher throwing to third base was about as good as Saltalamacchia’s, but I decided against awarding prizes based on pity alone.

The “obstruction” call and legal reasoning

As everyone in the world knows (or should know because baseball is a sacrament), the St. Louis Cardinals won a World Series game on Saturday night because the Boston third baseman “obstructed” the runner and consequently the runner was awarded home plate and the winning run even though the runner was tagged out at the plate.

During the play in question, Red Sox catcher Jarrod Saltalamacchia threw wildly to third base in an attempt to catch baserunner Allen Craig after a play at the plate in the bottom of the ninth inning. Craig, who had slid into third, got up and headed toward home, but tripped over the upwardly extended legs of Middlebrooks, who was face down on the third-base line after a futile attempt to catch Saltalamacchia’s throw. You can view the play here. (Give it a second to load and struggle through the short ad.)

I have reprinted the relevant rules below. Please read them.

The umpire who made the call said that the fielder’s intent to obstruct or not obstruct the runner did not matter under the rules. For a bit of fun, using the comment section, make your best argument that the umpire was wrong regarding intent, and, even if he wasn’t wrong on that issue, make your best argument that he blew the “obstruction” call anyway. Explain your reasoning. You may rely upon the rules cited below as authority but you may not cite any other rule. The facts are stated above, and you may rely only upon those as well. Don’t regurgitate “talking head” talk, please.

The best argument may garner a prize. Or not.

I have a another reason for pursuing this baseball question beyond my love of the game. I am entirely serious when I say that this real life event could profitably be used to quiz prospective federal judicial nominees on how they reason when it comes to applying text to fact.

Rule 2.00.

OBSTRUCTION is the act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner.

Rule 2.00 (Obstruction) Comment: If a fielder is about to receive a thrown ball and if the ball is in flight directly toward and near enough to the fielder so he must occupy his position to receive the ball he may be considered “in the act of fielding a ball.” It is entirely up to the judgment of the umpire as to whether a fielder is in the act of fielding a ball. After a fielder has made an attempt to field a ball and missed, he can no longer be in the “act of fielding” the ball. For example: an infielder dives at a ground ball and the ball passes him and he continues to lie on the ground and delays the progress of the runner, he very likely has obstructed the runner.

———

Rule 7.06.

When obstruction occurs, the umpire shall call or signal “Obstruction.”

(a) If a play is being made on the obstructed runner, or if the batter-runner is obstructed before he touches first base, the ball is dead and all runners shall advance, without liability to be put out, to the bases they would have reached, in the umpire’s judgment, if there had been no obstruction. The obstructed runner shall be awarded at least one base beyond the base he had last legally touched before the obstruction. Any preceding runners, forced to advance by the award of bases as the penalty for obstruction, shall advance without liability to be put out.

Rule 7.06(a) Comment: When a play is being made on an obstructed runner, the umpire shall signal obstruction in the same manner that he calls “Time,” with both hands overhead. The ball is immediately dead when this signal is given; however, should a thrown ball be in flight before the obstruction is called by the umpire, the runners are to be awarded such bases on wild throws as they would have been awarded had not obstruction occurred. On a play where a runner was trapped between second and third and obstructed by the third baseman going into third base while the throw is in flight from the shortstop, if such throw goes into the dugout the obstructed runner is to be awarded home base. Any other runners on base in this situation would also be awarded two bases from the base they last legally touched before obstruction was called.

RGK

Two scary dragons from China

Which one scares you more?

This one

Photo credit: oldandsolo per Creative Commons license.

or this one?

Petra, the dragon, Shekou district, Shenzen, China

RGK

An awe inspiring place provided to the Nebraska federal judiciary by the People

Yesterday, I drove to Omaha. In the morning, our quarterly meeting of the Nebraska Judicial Council (“judges meeting”) was held. We govern our court in a very unique and open way. See here for more. In the afternoon, I prepared for the weekend by sentencing two men to prison. This all occurred in the Roman L. Hruska United States Courthouse in Omaha.

Every time I enter that courthouse, I find the place awe-inspiring. It is ironic that the People have provided us with this iconic building but the legislative entity most responsive to the People, the House of Representatives, has recently thought it appropriate to deny the federal judiciary the pittance necessary to operate the federal courts and the beautiful buildings we judges are privileged and honored to occupy. Today, I thought it might be interesting to readers of this blog to learn more about the Hruska Courthouse and this post endeavors to provide a brief tutorial about the building.

The Hruska U.S. Courthouse was the first in the Nation commissioned under GSA’s Design Excellence Program. On October 24, 2000, thirteen years ago this week, the building was dedicated at a ceremony where hundreds of attendees heard the address of Justice Clarence Thomas. The Design Excellence Program seeks to improve the quality of public design by using a “key design” architect.

James Ingo Freed, of Pei Cobb Freed and Partners New York, New York, was selected as the key design architect. He was also the designer of the U.S. Holocaust Museum in Washington, D.C. and the Ronald Reagan Federal Building (at Federal Triangle) in Washington, D.C. At the completion of the Holocaust Museum, ABC/Barbara Walters selected him as one the 10 Most Influential Americans. Mr. Freed, who I had the great pleasure of meeting at the dedication, was a visionary. His biography at the Pei Cobb Freed website is here.

Mr. Freed died in 2005 while suffering from Parkinson’s disease. I am told that he designed our building without being able to use his hands to draw. Indeed, proving his unusually strong commitment to the importance of our project, Mr. Freed came out from New York and attended our dedication while in a wheel chair. He was frail but extraordinarily bright of mind and spirit. My career law clerk, Jim Eske, spent the day and evening attending to his needs. Truly, Mr. Freed was a remarkable man and we are deeply honored that our building is associated with his name.

The Roman L. Hruska U.S. Courthouse houses the U.S. Court of Appeals for the Eighth Circuit, U.S. District Court, U.S. Bankruptcy Court, and court related agencies. The courthouse provides 9 courtrooms: 1 Appeals, 4 District, 1 Special Proceedings, 2 Magistrate, and 1 Bankruptcy.

The courthouse is a rectangular shaped structure, with an area carved out on the front to allow light into the interior atrium. A four-part atrium roof feature gives the building a unique profile, while allowing large skylights to illuminate the atrium.

The building has a total of six stories. Four stories are above grade at the West or front entrance, for a total of 30 meters (98 feet) to the top of the atrium roof feature. Six stories are above grade at the East, or back side of the courthouse, for a total of 39 meters (128 feet) to the top of the atrium roof feature.

The Hruska U.S. Courthouse has two bronze grilles by the distinguished sculptor Stephen Robin, of Philadelphia, Pennsylvania, which were funded by the 1/2 percent for art set-aside under the Art-in-Architecture program. The 22 1/2 feet tall by 5 1/2 feet wide bronze grilles are set into the pre-cast concrete column covers adjacent to the North and South sides of the monumental stairs in the atrium. The bronze grilles are allegorical figures of plants associated with the Midwest. The North grille represents corn/maize and goldenrod (the State flower of Nebraska). The South grille represents wheat and sunflowers.

The building is named after U.S. Senator Roman L. Hruska (August 16, 1904 – April 25, 1999). Unfortunately, and unfairly in my view, Hruska became the object of derision as a result of a poorly phrased remark about “mediocrity” and Judge G. Harrold Carswell’s failed nomination by President Nixon to the Supreme Court. That aside, Senator Hruska was widely regarded by those in the know as one of the most influential United States Senators in the last half of the 20th century when it came to matters involving the federal law and the federal judiciary. See, e.g., Robert H. Bork, Dedication: Senator Roman L. Hruska, Yale Law School, Yale Law School Legal Scholarship Repository (1976). As the New York Times observed at his death, Hruska “served 22 years as a conservative Republican senator from Nebraska” and, as the ranking member on the Senate Judiciary Committee, he “wielded considerable influence on the Judiciary Committee.” I got to know Senator Hruska near the end of his life when he quietly donated a large sum to fund the Nebraska Bar Foundation’s Roman L. Hruska Institute for the Administration of Justice. The Institute is devoted primarily to the study of federal law by bringing distinguished speakers to the University of Nebraska College of Law. Various legal luminaries have graced the Institute podium including Justices Kennedy, Breyer, Ginsburg and Thomas, and Michael D. Kirby, retired Justice of the Australian High Court.

Below, you will find several photographs of this beautiful building. I hope you enjoy them. Next time you’re in Omaha, let me know and we’ll provide the grand tour and a cheap lunch with a decent beer.

View from the West on a cold day

Here is the courtroom I used on Friday. It is typical of the four main trial courtrooms. The Special Proceedings Courtroom is similar but larger.  The jury box is to the right in this picture, and not shown.

RGK

The broad disruption of the federal courts caused by the shutdown

Today, the Administrative Office of the U.S Courts issued a press release describing in vivid detail the impact of the shutdown on the federal courts. It is worth reading (here). If nothing else, the nuts in Congress are now on notice that when they shutdown the judiciary, they do immense harm to real people.

RGK

More on judicial behavior

Lee Epstein and Jack Knight are true experts in the study of judicial behavior. They are empirically trained, deep thinkers and excellent writers. They do not grind axes.

Lee Epstein is the Provost Professor of Law and Political Science and the Rader Family Trustee Chair in Law at the University of Southern California. She is also now serving as a Phi Beta Kappa Visiting Scholar, a Guggenheim Fellow, and a Lecturer in Law at the University Chicago. Professor Epstein is a Fellow of the American Academy of Arts and Sciences and the American Academy of Political and Social Science.

Jack Knight is the Frederic Cleaveland Professor of Law and Political Science at Duke University. His scholarly work focuses on modern social and political theory, law and legal theory, and political economy. He holds a joint appointment with Duke Law School and Duke’s Trinity College of Arts and Sciences, where he teaches in the Politics, Philosophy and Economics Program.

If you really want to understand what motivates judges, you must read their a recent article entitled U.S. federal judges are motivated by much more than putting their policy and political preferences into law, London School of Economics and Political Science (October 22, 2013). It is here.

For a long time, political scientists thought judges were motivated primarily by their political and policy preferences. But what if that were not true? For one thing, it would cause political scientists to completely rethink their approach to the study of judges.

What follows is a brief summary of this extremely important article:

What motivates U.S. federal judges and the types of decisions they make? While for a great deal of time, many judicial commentators have maintained that translating their own political values into law is the prime motivator for federal judges, Lee Epstein and Jack Knight disagree. Looking at the U.S. courts over the past 60 years, they find evidence that policy-centric accounts can no longer explain judicial behavior. They argue that judges are motivated by aspects of job satisfaction, external satisfaction, leisure, salary, and promotion – not just by ideology.*

I commend this short article to you. It is well-worth reading as it is brief and yet paints in clear words a portrait of judicial behavior that is far more realistic than standard academic or Conservative/Liberal (Progressive) thinking.

RGK

*For more of the work of Epstein and others (most especially Judge Posner) about judicial behavior and particularly the judicial behavior of district judges, see my earlier post here.

On going public

Before every trial, and for the last 25 years plus, I have conducted a jury orientation for prospective jurors that is open to counsel and the public but which is not part of voir dire or the trial. One of the things I do is to take the prospective jurors on a walk about the courtroom as I narrate what they are seeing. The jurors are able to sit at counsel table, sit in the jury box, and sit in the witness chair. We walk on to the clerk’s bench and my bench and jurors see all the “secret” stuff and how it works. The jurors are really interested in the digital audio system that we use instead of a court reporter, the interactive video display to make documents and drawings accessible to the jury, and the panic alarm button to get additional Marshals. We turn on the “white noise” that blocks the jurors from hearing bench conferences, and I explain why we do that. They are also intrigued by the infrared audio head sets we can provide jurors who are, like me, a bit hearing impaired or when we need to listen to those damn wired buys. If they like, the prospective jurors can sit in my big black fake leather chair. In reverse, we use my door to enter the courtroom (hidden in the wood paneling, to the amazement of the jurors) and walk down the steps behind the courtroom and into the jury deliberation room. I’m yammering all the time as we engage in this tour.

You get the picture. So do the prospective jurors. I envisioned this blog being something similar to my jury orientation. That is, I hoped the blog might become a way to open up what I do, how I do it, and why I do it. And that brings me to my earlier post on Mr. Lane’s editorial in the Washington Post that was critical of Judge Posner for being too public. I asked readers to tell me what they thought, and to apply that thinking to this blog. Incidentally, the idea for that post came from a distinguished East coast trial lawyer, and I thank him, again, for calling Lane’s article to my attention. Readers have responded, and I want to take this opportunity to thank them (and apologize for not responding to each of their comments). That said, I also want to add five thoughts.

First, although I do not agree with Lane’s criticism of Judge Posner, I agree with him that judges can become too public. Indeed, I don’t give interviews to the regular profit-making media because I hope what I do has a significant educational component and I don’t want to detract from that mission by becoming some sort of minor celebrity. Besides, no matter how I faced the camera, I have no good side.

Second, I waited to begin blogging until I was a senior judge primarily to shield the federal judiciary from criticism that I was shirking my judicial duties.  Since taking senior status, I am legally “retired” under 28 U.S.C. § 371(a)&(b)(1), paid an annuity (not a salary) and I would be paid whether I stayed home or worked.  Indeed, in a very real sense, I am working for free. In short, by waiting to blog until I was a senior judge, I hope I have made it hard to attack the federal judiciary for my blogging activities.

Third, like all judges (but not Justices), both active judges and judges on senior status, I am bound by the Code of Conduct for United States Judges. However, since senior judges have the statutory right to turn down cases, see 28 USC § 294(b), senior judges have somewhat more freedom to express themselves without impairing their usefulness as judges. That is, I have to worry slightly less about causing recusals when I blog since I have no obligation to take cases and I may turn down the assignment of specific cases. Nonetheless, I strive hard not to comment upon pending or impending matters in order to avoid recusals. My blog prominently highlights that caveat. See here and here. More generally, having served for six years on the Judicial Conference’s Committee on Codes of Conduct, I try hard to be sensitive to ethical issues under the Code while recognizing that I am pushing the boundaries by engaging in this new medium.

Fourth, the Code of Conduct for United States Judges, in the commentary to Canon 4, encourages judges to help in law reform efforts: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.” (Emphasis added.) I hope what I am doing in this blog is consistent with this very important statement.

Fifth, there is a strong theoretical justification for judges to be transparent because only by doing so can we harmonize the very anti-democratic institution of the judiciary with a broader society that exalts, and has enshrined in its written Constitution, the supremacy of democratic principles. The digital age gives judges a powerful opportunity to become more accessible and thus transparent. I have written an essay on this subject, ironically enough, for a Canadian law journal, and I refer the reader to it for a greater exposition of my views. See Richard G. Kopf, The Courts, The Internet, E-Filing and Democracy, 56 U.N.B.L.J 40 (2007). If nothing else, people tell me that the essay is a short and fun read (assuming you have no life, like me). Unfortunately, I just realized that a subscription is required (those damn Canadians). I will see if I can’t post the essay myself and provide a free link later. Later: The essay is now freely available here under “Archive” and “Articles.”

RGK