Mimesis Law
21 November 2019

Help Me Help Young Criminal Defense Lawyers

August 10, 2016 (Fault Lines) — The Nebraska Criminal Defense Attorneys Association has asked me to appear at the second annual two day “boot camp” for young lawyers (and law students) who want to practice criminal defense. They want me to present the “view from the federal bench.”

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NCDAA asked me to prepare a short hand out for my small part of the program to accompany my talk.  Here it is:

NCDAA’s 2nd Annual Criminal Defense Boot Camp

View from the Federal Bench

Richard G. Kopf, Senior United States District Judge

Here are the top ten things young lawyers need to know about practicing criminal defense in the United States District Court for the District of Nebraska:

  1. It is a different world from the state courts—be afraid, be very afraid (kidding, sorta). For example, you cannot file paper. Everything is done electronically. As another example, we handle our own discipline and the Counsel on Discipline is not involved.
  1. There are local rules that pertain to criminal cases. You can find them at http://www.ned.uscourts.gov/attorney, scroll down to Local Rules. Memorize them or die!
  1. In Lincoln and Omaha, all the motion practice takes place before the United States Magistrate Judges. That’s where you will start out for the first appearance, and so forth.  Dispositive motions (like motions to suppress) come to the District Judges by Findings and Recommendations of the MJs.
  1. In Lincoln, the MJs take nearly all the pleas of guilty and then issue Findings and Recommendations. In Omaha, the District Judges take all the pleas.
  1. You will fly partially blind when it comes to discovery—example, no depositions. Know Federal Rule of Criminal Procedure 16 or risk cancer.
  1. Get on the Criminal Justice Act Panel so you can receive appointments. You get paid $129 per hour plus expenses. There is a program (the C panel) where you follow (without pay) an experienced lawyer through two cases to get experience before you will be appointed. Contact David Stickman, the Federal Public Defender, to apply to become a member of the panel.
  1. Your best friend is the Federal Public Defender and the Assistant Federal Public Defenders. They are always willing to help. In my opinion, they are among the best criminal defense lawyers in Nebraska.
  1. The federal prosecutors (Assistant U.S. Attorneys) are fair minded and will not screw you around. In general, you can trust them, but they are tough adversaries and they really don’t give a damn that your client is a nice person except for the kilo of meth he or she schlepped.
  1. Most cases are drug or gun or “kiddie porn” or immigration cases. They almost always end in pleas with or without cooperation (snitching). There is a petition to enter a plea of guilty that is required. See http://www.ned.uscourts.gov/content/form-district-petition-enter-guilty-plea. All plea agreements must be in writing and the government prepares the plea agreements using form language—they won’t budge on the form language, but will negotiate substantive matters.
  1. If you don’t understand the Sentencing Guidelines, you are a living and breathing example of malpractice. I will gut you like a fish if you appear before me without understanding the Guidelines applicable to your case. On this, I’m not kidding.

I would also like your assistance.

I want to know from the many experienced criminal defense lawyers who read Fault Lines or who write for Fault Lines what suggestions you might have for the young lawyer who wants to practice federal criminal defense.  For those of you who are less experienced, I would like you to tell me what you would like to know.  By gathering and sharing your comments, you will help me help the young’uns here in Nebraska. By the way, if you disagree with any (or all) of my “top ten” list, let me know that too, as those insights would be of particular interest.

With a little help from my friends, maybe, just maybe I won’t sing out of tune.*

Richard G. Kopf
United States District Judge (Nebraska)

*Screw the Beatles. All hail the late Joe Crocker. The link takes you to his performance at the Queen’s Golden Jubilee on June 3, 2002 with help of Phil Collins on the drums!

20 Comments on this post.

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  • Anonymous
    10 August 2016 at 10:34 am - Reply

    The criminal defense lawyer (new and old) should ge their hands on the three volume “Defending A Federal Criminal Case” published by the Federal Defenders of San Diego. My copy is from 2010. They may now have it on line. I don’t know. But get your hands on a set. Invaluable.

    Also, two other books should be read and kept available. Steven Stark’s Writing to Win, and MacCarthy on Cross-Examination By Terence F. MacCarthy). Attorney MacCarthy has also posted a video version of his book on You Tube. It’s broken down into several installments. I have my own views on how to conduct cross, but I like what Atty MacCarthy has to say, and it would be foolish to ignore his general advice.

    Finally, be bold. Don’t be too intimidated. Federal court is where you want to be anytime you can get there. Criminal law is what most of us all had in mind (be honest) when we went to law school. Who didn’t fantasize about bringing the next Miranda case, or representing a Gideon? Go for it. It’s a wonderful profession.

    Oh, don’t forget to go back to the well from time to time for some inspiration. Very important. Whenever I had an 8th Circuit appeal, I would go to the old state Courthouse in St. Louis (right near the arch) and visit the Dredd Scott exhibit. They had on display the original, Hans written pleadings. The Dred Scott story is very inspiring. One trip out I decided to drive out to Missouri. On my way home, I stopped in Springfield, Illinois, and visited Abraham Lincoln’s law office. Maybe it’s me, but I had goose bumps walking over the same floor boards that Lincoln traversed. (The office was just as Herdon described in Herdon’s Lincoln- Da Capo Press). The John Adams courthouse in Boston had a display a few years ago with hand written pleadings where the case caption Rex v. Whoever was crossed out and recaptioned Commonwealth v. Whoever. The date of the document was the day that the news of independence was announced. Stuff like that.

    Seriously, take pains to stay inspired. It is too easy to allow yourself to be ground down by the pressures of legal practice if you don’t take time to reflect on why you became a lawyer. If I remember the Dredd Scott back story correctly, he was working as a janitor cleaning offices in St. Louis. If lived with his wife a (a laundress) with their three daughters in an apartment. Because he wasn’t free, he was only allowed to keep half his wages. He had to turn over the other half to someone else. Hearing that others had been freed by Missouri courts after having been taking out of state, he had an idea that he might be able to seek relief in state court. One of the offices he cleaned belonged to a lawyer. That lawyer helped him.

    I think in our professional lives we come across our own Dredd Scotts. The question is whether we recognize them when they approach. And do we take care to help them.

    Read.

    • Richard G. Kopf
      10 August 2016 at 11:31 am - Reply

      Anon.,

      Thank you very much for your detailed and inspiring comment. I intend to use it and will print it right after I complete this reply.

      You refer to the Dred Scott courthouse in St. Louis. Up the spiral stairs, and into the quaint room that served as a courtroom is a journey every lawyer ought to take. Like your comment, it is awe inspiring indeed.

      I first went there as a young law clerk to an Eighth Circuit Court of Appeals judge. As you know, the Eighth Circuit’s home base is St. Louis. I visit the Dred Scott courthouse occasionally even now when I am in St. Louis just to renew my spirit. Thanks for the reminder.

      All the best.

      Rich Kopf

      PS See a good photo of the stairs at https://s3-media4.fl.yelpcdn.com/bphoto/M_RnKomS64jzZaY-VJz_og/o.jpg

  • TMM
    10 August 2016 at 11:17 am - Reply

    First, coming from the state prosecutors perspective, a key thing is to know the possible/likely instructions in the case. (Much easier in courts that have form instructions than in those that do not.) If you do not know what the jury will be told the government has to prove, you really can’t evaluate the strength of your case and the fairness of any offer. (It is also, per the United States Supreme Court, ineffective assistance of counsel to give advice to the client about a plea offer if that advice is based on a misunderstanding of the governing law.)

    Second, observe enough around any courthouse (or talk with local attorneys) to get to know the unwritten local rules. As one of my law professors noted, there are a lot of customary practices (both in the real world and in the legal world) that never get formally written as a rule or statute, but if you do not comply with those customs, there will be consequences that you and your clients will not like.

    Third, be friendly and courteous to the court staff. There will be a time in your career when you will need the staff to do something for you — whether it is getting a quick transcript, having an emergency conference call with the judge and the government’s attorney when something comes up right before trial, or something else. Being seen as one of the good guys or gals rather than as the jerk can make a difference in how far the staff is willing to go beyond the minimal requirements of their job to help you.

    Fourth, while attorneys are expected to be advocates, they are also expected to be candid with the court. Getting a reputation for misstating the facts or the law or breaking your word is damaging to your professional health — even if it does not directly lead to formal sanctions. Judges, staff, and the opposing party notice such tendencies. (I remember when I was a clerk to a judge dealing with an attorney who always misstated the record in his statement of facts. The law clerks quickly learned to skip over that part of his pleadings and rely on the other side’s version of the facts.)

    • Richard G. Kopf
      10 August 2016 at 11:34 am - Reply

      TMM,

      Great advice. I will use your comment as well.

      All the best.

      RGK

  • Jeff Gamso
    10 August 2016 at 11:19 am - Reply

    You reference local rules and Rule 16. But unless Nebraska is different from most states, there are other important differences between Fed.R.Crim.P. and the state’s version. They should be told that.

    And the most important of all advice – whether for those practicing in state court or federal:

    It’s not about you. It’s never about you. It’s about the client. You don’t cover your ass. You cover the client’s. Rinse. Repeat.

    • Richard G. Kopf
      10 August 2016 at 11:35 am - Reply

      Jeff,

      I will rinse and repeat your most important message at the “boot camp.” Thanks a lot!

      All the best.

      RGK

  • Nicole Kaplan
    10 August 2016 at 11:59 am - Reply

    1. The court staff are wonderful people (in Georgia and I assume in Nebraska as well). They are helpful, and worthy of your respectful and courteous treatment. Always.

    2. Counts don’t matter, Guidelines do. But sometimes counts do matter, like 1028A and 924(c) and bank robberies, etc. So many well-meaning lawyers plead clients to plea agreements with appeal waivers or agreements that the Guidelines are reasonable without understanding that they aren’t getting anything in return because of relevant conduct and grouping rules. So don’t sign a plea agreement until you’ve discussed it with an experienced federal practitioner and understand whether you are or are not getting something.

    3. Answer the “why” questions. For sentencing, be prepared to address why this crime happened and why it won’t happen again. The corollary is: know who your client is. What is his or her background? Understand the presentence process and how it can affect your client long after sentencing day into the Bureau of Prisons. Calculate his or her security level and document medical and mental health issues. Request designation to a facility at the right security level that can also address his issues or can provide job training, etc. If he’s on mental health medicine, what is the plan for release and continuity of care and/or a supportive living environment.

    4. Your word is your bond and your reputation is everything. Don’t take it lightly.

    5. Defender Services has wonderful trainings. The federal Defender is there to help. Take advantage of these resources. There is no such thing as a dumb question when someone’s life is in your hands.

    • Richard G. Kopf
      10 August 2016 at 12:10 pm - Reply

      Nicole,

      Excellent advice, particularly point 2. I intend to appropriate your comment as well.

      Thanks. All the best.

      RGK

    • Mark W. Bennett
      10 August 2016 at 2:22 pm - Reply

      All are great advice. # 4 is priceless.

  • Mark W. Bennett
    10 August 2016 at 2:00 pm - Reply

    1. Work on sentencing mitigation from Day 1.
    2. If there isn’t any — think seriously about going to trial. If you go focus on one or two elements (one is best of all) and concede the obvious elements in opening statement.
    3. You must become a virtuoso cross-examiner. Read and study everything you can about cross, including the Chapter Method of Cross Examination.
    4. If your client insists on testifying try and talk her out of it – if unsuccessful put her through several mock very harsh cross-examinations.
    5. If you put on affirmative evidence it better be good. Putting on evidence over a minor point and nothing more means you may win the battle of the inconsequential but your client will be convicted.
    6. Try many more cases – you will get better plea deals.
    7. Your opening statement is critical – learn to be an unsurpassed story teller. If you are not a great story teller think about going to dental school – you will make more money and not be a walking violation of the 6th amendment.

    • Richard G. Kopf
      10 August 2016 at 3:36 pm - Reply

      Mark,

      As always, I will steal from you. Thanks.

      All the best.

      Rich

      PS I thought about going to dental school but decided that I liked the meth-mouth look and figured that would be bad for business.

  • newbie
    11 August 2016 at 12:14 am - Reply

    you guys rock

    • Richard G. Kopf
      11 August 2016 at 10:32 pm - Reply

      Newbie,

      But the real question is whether we can rock and roll. All the best.

      RGK

  • John Russell
    11 August 2016 at 2:19 pm - Reply

    Know your opponent, both generally and specifically. Find and bookmark the USDOJ website and the U.S. Attorney’s Manual. There is invaluable information in that document to help you understand how to defend specific charges. The manual also will tell you what the prosecutor did, or should have done, to get approval to charge your client. Hold the government accountable to its policies and procedures.

    Learn how the grand jury is supposed to operate. The manual will tell you what the government is obligated to do, and prohibited from doing, in the grand jury. Know it, understand it, and require the government to meet its obligations.

    Know the individual prosecutor. Every one of them handles cases differently.

    Know and understand forfeiture. It is not a throwaway count at the end of the indictment to be ignored. Learn how to defend forfeiture allegations.

    • Richard G. Kopf
      11 August 2016 at 10:37 pm - Reply

      John,

      Thanks much. I will use your points in my talk. Your forfeiture point is obscure, but a great one. I try a civil forfeiture case to a jury next week! The feds grabbed a bunch of cash from some travelers but filed no criminal charges. Is a heat sealed bunch of cash on its way to Colorado enough?

      All the best.

      RGK

      • John Russell
        12 August 2016 at 9:25 am - Reply

        Judge,

        I have found many forfeiture counts to be without a factual or legal basis. I also have found that when challenged, the government concedes forfeiture issues. But in my district few defense lawyers take the time to protect their clients’ rights on forfeiture issues and simply go along with what the forfeiture lawyer puts in front of them. Forfeiture law is obscure, dense, and unfairly one-sided, but I have found the government doesn’t like to be challenged on these issues. So I encourage lawyers to examine the forfeiture issues carefully and put up the good fight.

        No, a heat-sealed bunch of cash is not enough. I’m glad the case is going to trial.

        I miss your blog.

        /jdr

  • MOK
    11 August 2016 at 3:35 pm - Reply

    My first and only rule for young lawyers who want to practice criminal defense: DON’T! Just kidding. 🙂

    I thank God (or “Fate”, if you prefer, Your Honor) that there are public defenders and attorneys who accept criminal defense appointments. Why? Because it means I can sleep at night even though I have avoided criminal cases like a plague for 35 years, knowing that such attitudes among all bar members would leave many souls caught up in the criminal system without due process and effective representation. I know there are those who take on the defense task willingly and my thanks go out to them. For what it is worth, the Judge’s Rules above appear to make a lot of sense.

    • Richard G. Kopf
      11 August 2016 at 10:38 pm - Reply

      MOK,

      You are a good guy as illustrated by your comment. But I knew that to be true long ago.

      Take care my friend.

      All the best.

      RGK

  • Noel Erinjeri
    12 August 2016 at 1:26 pm - Reply

    1. Do you ever impose a trial tax?

    2. If so, how much of it required and how much of it is at your discretion?

    3. What informs your decision on the discretionary parts of it?

  • Newbie lawyer
    15 August 2016 at 6:58 pm - Reply

    Judge, you should have something about sentencing: (1) advocacy tips mostly, and (2) writing tips (cases law review etc).

    Most law students after graduation don’t have a clue about anything despite the education. (Oh after the conference, post it on here).

    Regard, Newbie