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September 9, 2005

Judge Kopf, in fine form, on 11(c)(1)(C) pleas

Nebraska US District Judge Richard Kopf, who long ago earned a special plaque in my Sentencing Judges Hall of Fame for writing the most entertaining opinions, has another corker with US v. Coney, No.  (D. Neb. Sept. 8, 2005) (available for download below).  Coney covers a lot of important ground: the opinion primarily addresses how a judge should evaluate a Rule 11(c)(1)(C) plea agreement that requires a sentence below the otherwise properly calculated Guidelines range, and it also discusses the new Statement for Reasons form many judges are now using to explain their post-Booker decisions.  Also, in footnote 15, the Coney opinion touches briefly upon the burden of proof issues that Judge Kopf and his colleague Judge Bataillon have been debating recently (details here, commentary here).

Thus, the substance of Coney makes it an important opinion.  But how Judge Kopf packages his insights always makes his opinions must-reads.  Consider this opening paragraph:

Prosecutors and defense lawyers sometimes enter into binding plea agreements that require a judge to impose a particular sentence or apply a particular sentencing range that is above or below that produced by proper application of the advisory Guidelines.  When such a plea agreement smells too much like cow manure siphoned from a feedlot after a swampy, summer rain, judges should not pretend the odor is lilac.  On the other hand, if the plea agreement stinks, but the stench is more like kitty litter than cow manure, a judge should hold his or her nose and move on. The trick is to discern the difference.

Download kopf_coney_opinion.pdf

September 9, 2005 at 01:12 AM | Permalink


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Judge Kopf's opinion in US v. Coney (D. Neb. Sept. 8, 2005) was marked as "available for download below" but the link does not appear. Could you please insert it as an update.
Paul Kurtz, Executive Director

Posted by: PAUL KURTZ | Sep 9, 2005 6:36:30 AM

Oops, sorry... problem now fixed.

Posted by: Doug B. | Sep 9, 2005 6:45:29 AM

After reading Judge Kopf's opinion, I now know the defendant's race (black), height (5' 7"), that he is morbidly obese (330 pounds), he has high blood pressure, his parents are divorced, his father is in prison for robbery, his mother has drug problems....

What I don't know is why that information was relevant to the particular legal issues addressed in this opinion. I kept waiting for the opinion to tie those facts in somewhere, but it never did.

Perhaps I'm in the minority here, but I think judges should show a little more respect for the privacy of the defendant, particularly in an opinion the judge must have known (and probably intended) would be widely disseminated and eventually be published.

The defendant is a person, not a cow being sized up for a Nebraska cattle auction.... I don't intend this as a personal critique of Judge Kopf, who I'm sure meant no disrespect, just something to think about, for all of us who work for the courts and may have occasion to write such opinions.

The counter-argument is that including such information humanizes the defendant. Maybe so. I certainly can envision circumstances where such information might be relevant. However, this didn't appear to be one of them. Instead, it left me feeling a bit like a voyeur, and I question whether the defendant felt much better.

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