Mimesis Law
23 September 2020

Judging With One Eye

May 18, 2016 (Mimesis Law) — Scott Greenfield, our mean-ass editor, is the real deal. He reads everything and changes posts to make them much better. Sometimes he is gentle, and at other times, well, not so much.

Last week I sent him a post with the word “Nebraska” misspelled.  The following e-mail exchange (slightly edited to protect the children) ensued:

SHG: Just read your post, and was almost inclined to let your misspelling of Nebraska “slip” through. But I won’t.

RGK:   The day after I wrote the piece, I had an entropion repair of the left eye and look like I’ve gone one short round with Mike Tyson. They cut the lower eyelid pull on it with stitches and the eyelid no longer turns in on the cornea.

It would have hurt like a bitch but for the Michael Jackson drug, Propofol that was administered just before surgery so they could inject painkillers into the eye without screaming. Cuts down on the pain of those preoperative injections, but allows you to reawaken during surgery so you can respond to commands as they stitch and pull and compare the left eye with the right one.

So, sure make fun of an old man who was fucking blind when he wrote the post! Asshole.

SHG:  It’s a good excuse. Not great, but good.

That got me to thinking about judging with one eye. In some ways, that’s exactly what I do. Let me explain.


Even Piell was at the Jedi Temple when Qui-Gon Jinn told them about his encounter with a Sith Lord. He was also there to judge Anakin Skywalker to see if he was the Chosen One.

I am more and more convinced that I need, somehow, to involve the jury when I sentence a criminal defendant.  I hunger for some rough sense of the community’s attitude. I am particularly concerned about how the jurors, after hearing the case, view the seriousness of the offense, what sentence they think will promote respect for the law and what sentence they believe will provide just punishment for the offense. See 18 U.S. Code § 3553 (a)(2)(A).  But, I remain convinced that I must be the ultimate decision maker, considering far more things than the jury is competent to consider.

Might I employ an informal hybrid where the jury advises me in a non-binding and informal fashion? Now, to be clear, I am not talking about a formalized model like what we see in federal death penalty cases. See 18 U.S. Code § 3593 (special hearing to determine whether a sentence of death is justified).  The “advisory jury” format in Federal Rule of Civil Procedure 39(c) is roughly comparable to what I am thinking about, but even that is far too formal.

What I want is something informal, simple and quick. What I really want is the jury’s impressionistic point of view imbued with their sense of humanity derived from the community from which they come. So, I have begun thinking about a “straw poll” if you will.

If, in a non-capital federal criminal case, the jury were to return a verdict of guilty, I would bring them back into the courtroom and each juror would receive a form and envelope.

Let’s take a case where there is a statutory minimum.

The form (which I would also read to the jury) might look something like the following:

Ladies and Gentlemen, you have found the defendant guilty. Before I excuse you, I would like your advice about how long each of you think the defendant should serve in prison. (I will not be bound by your advice.)

The statutory sentencing range in this case is from X to Y in prison. Probation is not an option. Keep in mind that there is no parole in the federal system. Thus, any prison sentence that is imposed will be the sentence actually served by the defendant less no more than 54 days per year of “good time” if the defendant earns “good time.” After the defendant leaves prison the defendant will be supervised by a federal probation officer for a period of time.

In providing me with your advice, you may wish to consider the seriousness of the offense. You may also wish to consider what sentence will promote respect for the law. Additionally, you may wish to consider what sentence will provide just punishment for the offense.

Based solely and only upon the evidence that you have heard during trial, what I have told you herein and your common sense, I ask each one of you individually: How long should the prison sentence be?

Write your answer here __________________________

Print your name ___________________

Sign your name ___________________

After you have completed the foregoing, each of you should place your form in the individual envelope given to you. You may, but are not required to, discuss your views with the other jurors.

If you do not wish to express an opinion, simply print your name and sign the form without giving your advisory sentence. That is, leave the advisory sentence line blank.

You have one hour to complete this task. The courtroom deputy will return to the jury room and collect your forms in one hour and at that time I will excuse you. Do not leave before I excuse you.

This is just a germ of an idea. The are tons of problems with it. For example, should counsel or the defendant be given the opportunity to address the jury? (I think not.) I could give you a list of the specific difficulties, but the purpose of this post is not to get into those weeds even though they may be tall ones.

In short, I’m tired of judging with only one eye. That is particularly true now that I look like the guy in the photo that appears next.


Tell me what you think about my embryonic (and perhaps moronic) idea. Please.

Richard G. Kopf
Senior United States District Judge (Nebraka)*

*Ed. Note: I’m not falling for it this time. Nope.

23 Comments on this post.

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  • Keith
    18 May 2016 at 9:19 am - Reply

    He let “hybride” slip through? Tell him to hire a real editor.

    It’s an interesting experiment. Curious — can you keep them after they’ve given you a verdict?

    Do you think that a jury finding out ahead of time that you are that judge that asks their opinion about sentencing could affect how they determine guilt or innocence? I remember Andrew writing a while back about how prosecutors don’t want juries to know what sentences are possible for crimes (“Why Don’t Prosecutors Want Jurors to Know the Sentence?”).

    Either way, it seems like an interesting experiment. Keep us posted.

    • Richard G. Kopf
      18 May 2016 at 10:13 am - Reply


      The word is correct in French.

      No, I can’t keep the jury. It would have to be voluntary. And, no I would not tell them in advance. I instruct them not consider punishment in any way when considering guilt.

      Finally, if I ever have the guts to do this, I would only use the results to help the defendant. There are too many due process issues with using the results to hurt the defendant.

      Thanks for writing, mon ami. All the best.


  • Anonymous
    18 May 2016 at 9:48 am - Reply

    The problem with your model is that while you may be sentencing with just one eye, you’re asking the jury to make a recommendation blind.

    If the sentencing phase immediately followed conviction, where the defendant could put on evidence of mitigation and extenuating- and where the government could put on evidence of aggravation, then I think your proposal works.

    That’s how we did it in the Navy. Well, it wasn’t merely a recommendation, it was the actual sentence. It seemed to work just fine. The members always seemed to have an intuitive understanding of what the federal courts call the rule of parsimony..

    But I’m not sure why we need to go to all the expense, and why you feel you are judging with only one eye. I mean you have that easy to understand tome published by the government printing office called the U.S. Sentencing Guidelines. Life couldn’t have been made any easier for you. Some looks just aren’t happy unless they’re complaining.

    Finally, I don’t know why you had to ut your eye doctor to the expense and effort of administering the propofol. All you had to do was bring your bench copy of those easy to read sentencing guidelines, and you would have been immediately under the requisite anesthesia.

    Just making life hard for yourself with all the complications. Like my wife tells me all the time. “Your problem is you think about things too much.”

    • Richard G. Kopf
      18 May 2016 at 10:12 am - Reply


      Yes, the Sentencing Guidelines have a number of useful purposes. Sometimes I sit on the manual just to see if by osmosis (sorta) wisdom will be revealed to me. (Don’t ask me, talk to Freud.)

      Finally, your wife is a brilliant woman. We should all do less thinking and more drinking.

      All the best.


      IPads suck. Use a Surface Pro. It will screw up spelling just as well, but it has a keyboard that gives the same comforting click whether you speel a word correctly or not.

  • Anonymous
    18 May 2016 at 9:55 am - Reply

    “Some ‘folks'”. Not “looks.” This darn IPad has some kind of spell check thing going on.

    Maybe that’s how you misspelled Nebaska. Yeah, that’s the ticket.

  • Griff
    18 May 2016 at 10:08 am - Reply

    I think you might get more meaningful information if you DIDN’T tell them what the statutory sentencing range was. Wouldn’t it be useful to know if 10 of your 12 jurors think an appropriate sentence is below the legal minimum?

    • Bob
      18 May 2016 at 1:13 pm - Reply

      I was about to say the same. Give them no information about he range or stat minimum, just ask “what do you think is a reasonable sentence based on what you’ve been presented?”

      Might get some fascinating answers.

  • TMM
    18 May 2016 at 10:55 am - Reply

    In my state, we used to have the jury recommend a sentence for first time offenders as part of the guilty verdict. That sentencing recommendation opted as a cap on the sentence that the court could impose.

    The process worked reasonably well at giving a sense at what the community thought the crime was worth (which could then filter into plea offers and judge sentencing on open pleas) but had three potential problems: 1) lack of information about character of offender (either aggravating or mitigating); 2) potential for sentencing ranges to influence verdict (jury nullification to make crime fit the desired sentence); and 3) any error in sentencing range was treated as requiring a new trial. Whether for these reasons or others, our legislature decided to allow a full-blown sentencing phase which still works but adds an extra degree of complexity to appeals (evidentiary errors in the sentencing phase)and collateral review (ineffective assistance in the sentencing phase).

    Under the new regime sentencing phases are somewhat rare. First time offenders are likely to get offers of probation and, therefore, most trial involve repeat offenders who do not have a right to a sentencing hearing. Even those who do have a right to a sentencing hearing often waive it (especially in rural areas where the jurors are perceived as being likely to recommend a higher sentence than the judge would impose without the influence of a recommended sentence).

  • Nicole Kaplan
    18 May 2016 at 1:41 pm - Reply
  • Richard G. Kopf
    18 May 2016 at 4:18 pm - Reply

    To all of who commented on whether I should tell the jury the statutory range,

    This is a really tough call for me. That said, I still want the jury to know what the constraints the law has put on me with a statutory minimum. In other words, I want a response that is “real world.”

    But, I confess, your idea appeals to my empirical side. That said, my main driver here is not empiricism. I really want the jury’s advice in the same context that I will face when I actually pronounce sentence.

    While I could derive something helpful from the jurors if I omitted the statutory range in a mandatory minimum case, I think the response would be less meaningful if they did not know, for example, that I was obligated to impose 10 years in prison no matter what. Moreover, and perhaps most importantly, the response from the jury would be more powerful on appeal (I think) if the poll accurately reflected the law. No Circuit Judge could disregard the poll by saying that the jury didn’t even know the range and therefore the poll is meaningless.

    Note to Nicole: A special thanks to you for the article. What I think is slightly different from the other judges is that I would use the poll in every case, document the poll in the record and explicitly use that “evidence” when I sentenced. I would also ask the probation officer to consider the responses when preparing the PSR and, particularly, when discussing the appropriateness of a variance.

    All the best.

    Rich Kopf

    • Keith
      18 May 2016 at 4:31 pm - Reply

      If only you could ask jurors what they think an appropriate sentence is before as well as after a trial. I’d be fascinated to see how many change their mind after a determination of guilt.

      As far as telling them the range, I can understand both sides. But I had a different question. I also wonder what effect the range has on you, Judge. Do you think that seeing a set number before you impose a punishment changes how you choose a specific sentence (what marketing and psychologists refer to as the “anchoring effect”)?

      • Richard G. Kopf
        18 May 2016 at 5:47 pm - Reply


        Oh, my yes. The statutory minimum has an anchoring effect. Same, same for the Guidelines. But, I am still inclined to believe that is a good thing rather than a bad thing. In short, I favor a “weak judiciary” rather than a “strong one.” That is, I generally favor trying to do my best apply the tools, including the constraints, that Congress has decided should apply.

        All the best.

        Rich Kopf

    • E Hines
      18 May 2016 at 4:38 pm - Reply

      I think the response would be less meaningful if they did not know, for example, that I was obligated to impose 10 years in prison no matter what.

      If your minimum was 10 years, and the jury generally thought the thing was worth 5, wouldn’t that influence you to shade toward 10 independently of the lawyers’ presentations concerning how poor and downtrodden or how unmitigatedly evil the defendant was?

      If the advice form is truly voluntary, and not part of the trial, how can you make it part of the trial’s record and available to an appellate court? Yet, if you’re going to use the information, how can you not?

      Eric Hines

    • JoAnne Musick
      18 May 2016 at 7:08 pm - Reply

      I appreciate the effort and consideration. For me, coming from a state that has jury sentencing, the biggest issue would be how could the jury consider the defendant, especially if he had not testified. As many have pointed out, not hearing about prior offenses, mitigation evidence, personality, etc. could be problematic. They would be judging the crime itself and not the offender.

      Even without that aspect, I think the juries reaction can be helpful. I would lean toward telling them the statutory range but perhaps also asking if they think the statutory range is adequate or even harsh. I realize that complicates the question.

      In any event, I appreciate that you would want to consider their opinion. They do bring a perspective that many of us have lost after seeing so many circumstances.

  • E Hines
    18 May 2016 at 4:27 pm - Reply

    hybride, is it? Mr Greenfield have his own eye surgery, or is he setting you up as payback for your impertinence regarding “Nebraska?” Or did you really mean your advice-gathering to be a form of aus einer Kreuzung entstanden?

    Regarding the form, why “advice” rather than “opinion?”

    Why have them sign the form? If it’s informal, you don’t care who’s offering.

    Re probation: the convicted doesn’t get probation, but he serves probation after his jail time? That probably wants clarification.

    Why can’t they leave before they’ve turned in the form? If this is to be a voluntarily offered thought, maybe they can provide the form (or not) within an hour after they’ve been excused. How often do you render sentence on the instant of getting the verdict?

    Regarding Keith’s question below (above?) not telling the jury in advance would seem quickly to not matter: you’ll be known as that judge.

    Eric Hines

    • Richard G. Kopf
      18 May 2016 at 5:41 pm - Reply


      As I have told you before, you shoulda been a lawyer. But, if the respondents are not required to answer, then I think the poll is truly voluntary. As for whether I have the power to make it “part of the record,” I think I do but in truth, I am not certain. That’s one of the reasons I floated my idea here. Finally, giving the jury a limited amount of time to answer satisfies my need for their impressions while the case is fresh in their minds. Whether that ought to matter–their impressionistic responses–is a conundrum that I struggle with too. For now, I think it is better than nothing.

      As always, I appreciate your insights. All the best.


  • Anonymous
    18 May 2016 at 7:39 pm - Reply

    The more I think about this one the closer I come to imagining myself as the juror asked to make the requested sentence recommendation. If I were that juror, I think I would send back a request for a sentencing recommendation criteria. If the range is from x to y, what factors do I consider? That’s the big problem with your proposal, you are asking for a sentence recommendation without a reference point for a reasoned opinion. It’s kind of unfair.

    • Richard G. Kopf
      19 May 2016 at 7:16 am - Reply


      But I do give directions: “In providing me with your advice, you may wish to consider the seriousness of the offense. You may also wish to consider what sentence will promote respect for the law. Additionally, you may wish to consider what sentence will provide just punishment for the offense.” Those words come almost verbatim from the statutory goals of sentencing found 18 U.S. Code § 3553 (a)(2)(A).

      All the best.


      • Anon
        19 May 2016 at 9:54 am - Reply

        Not a very satisfactory guide though is it? (Mot being sarcastic here.) I suspect that being a judge in a system where it is your sole responsibility to mete out punishment puts you in a tough spot for the same reasons. I don’t think all the vertical and horizontal axis stuff is all that satisfactory either. But at least you get a reserved parking spot at the courthouse (that’s a plus).

        I do like the idea of jury participation in sentencing– just needs further refinement. Got me thinking of the following quote from Professor Amar’s book (co-written with Les Adams) “The Bill of Rights Primer- A Citizen’s Guidebook to the American Bill of Rights”: “[e]ven more elaborate was the vision of the jury conjured up by John Taylor of Caroline, one of the early republic’s leading constitutional theorist. The jury, wrote Taylor, was the ‘lower judicial bench’ in a bicameral judiciary. The judicial structure mirrored that of the legislature, with an upper house of greater stability and experience and a lower house to represent popular sentiment more directly. Thus the essayist Maryland Farmer defined the jury as ‘the democratic branch of the judiciary power– more necessary than representatives in the legislature.” p. 138. Neat little book, well worth the $ 12.95 I spent to buy it. I never really thought of the jury as the lower house in a bicameral judiciary, but I think it an interesting observation. Seems in line with your proposal.

        Take care of the eye. *I was going to throw up the One Eyed Cyclops clip from youTube, but it just seemed too cruel.

        • Richard G. Kopf
          20 May 2016 at 8:35 am - Reply


          Sure my suggestions about what to consider are vague, but that’s part of the vague direction given to me by Congress. I choose those particular elements of 3553(a) because they were the only statutory golals that were within the jury’s competence to address based soley on the trial evidence. Besides, why should I alone have the enjoyment of taking an ink blot test–you see puppies, I see spiders.

          All the best.

          Rich Kopf

  • Anon.
    19 May 2016 at 9:56 am - Reply
    • Richard G. Kopf
      20 May 2016 at 8:41 am - Reply


      Forgive you? Hell no.

      I praise you to the high heavens. I loved the 1958 classic, The 7th Voyage of Sinbad. It was truly thrilling to the 12-year old me.

      Thanks for the walk down memory lane even though I can only see it through one eye. All the best.


  • I Changed My Mind: Because It Is A Cop-Out, Federal Judges Should Not Poll The Jury About Sentencing
    13 July 2016 at 9:15 am - Reply

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