A vignette on death

This is not an excuse, this is not an explanation, this is not a denial and this is not an admission. Literary types might call it a vignette–a small illustration that fades into its background without a definite border.

Scott Greenfield wrote yesterday that “Judge Kopf gives remarkable deference to police safety . . . .” Scott H. Greenfield, Doctrine v. Realism: Naked Mudwrestling At Its Best, Simple Justice (October 7, 2014) (italics supplied by Scott). Scott and I were debating the merits of Rodriguez v. United States and whether the case was worthy of consideration by the Supreme Court. That case involved the seizure of a a large bag of methamphetamine from a car after the issuance of a traffic ticket. There were two men in the car. One cop, alone late a night in the boondocks of Nebraska, had stopped the men. I wrote about the apprehension the officer must have felt and why I thought it was appropriate for the cop to briefly detain the men until backup arrived in order to safely walk a dog around the car. That prompted Scott to write about my remarkable deference to police safety.

On April 20, 1973, it was Joan’s birthday. I didn’t know it then. We weren’t married. My first wife had not died yet–that unexpected blow would not take place until the day after Christmas in 1986. George Amos, a Nebraska State Trooper, was on patrol. He had only been with the Patrol for three years. He was 28 years old. He lived in Lexington, Nebraska with a wife and two children. In less than a year, I would move with my family to reside in Lexington and practice law with Ed Cook.

On April 20, 1973, George Amos stopped a car on Interstate 80. He suspected the driver was drunk. There were two people in the car. A man and a woman. He tried to put them both in his patrol car. One of them wrestled Amos’ service revolver away from the Trooper and shot and killed him. Later that day, the two were apprehended after another Trooper rammed their fleeing vehicle with his patrol car.

Trooper George William Amos, Jr. Nebraska State Patrol Badge No. 9

George William Amos, Jr.
Nebraska State Patrol
Badge No. 9

Because everyone acknowledged that he was the best lawyer around, Ed was appointed to represent both the man and the woman. It was an impossible conflict, but the judge stood firm and insisted that Ed soldier on. After all, Dawson County’s budget could only stand so much in the way of attorney fees. To make matters even more complicated, on April 20, 1973, the same day that Amos was killed, Nebraska’s governor signed a bill that reinstated Nebraska’s death penalty. Seemingly, both of Ed’s clients were thus exposed to the death penalty.

I was then clerking for United States Circuit Judge Donald R. Ross. Judge Ross was Ed’s brother in law. I interviewed for a job with Ed shortly after the killing and he told me of his murder case, and the horrible problem he had representing two clients in the same case who both were subject to the death penalty. For some reason, I remembered a recent Eighth Circuit habeas case that essentially held that the Sixth Amendment guarantee of the right to counsel was violated when one lawyer was appointed to represent two death-eligible defendants in the same case. With that, Ed filed a motion apprising the trial judge of the Eighth Circuit opinion, and the trial judge reluctantly ordered that Ed represent the man only. Another lawyer was appointed to represent the woman.

The man was willing to admit the shooting if the prosecutor would give his female companion a break. Plea negotiations went nowhere until Ed discovered something about the date of the killing and the date of the reinstatement of Nebraska’s death penalty statute, April 20, 1973. Although the Governor had signed the bill reinstating the death penalty on April 20, 1973, Nebraska law provided that the bill did not become effective until 12:01 AM on April 21, 1973. The killers had escaped the death penalty by mere hours. With that, the prosecutor was willing to deal and Ed’s client was quickly sentenced to life in prison. The female companion received a sentence to a term of years. Ed’s client died in prison in 1991.

As the years went by, I saw George Amos’ children around town. I am ashamed that I can’t remember their names. From reading our office file, I knew all about Amos and his family. Every time I saw the children, I thought about Trooper Amos and his senseless, brutal and unexpected death. I contemplated the terror he must have experienced when his service revolver was wrenched from his control and he knew with certainty that he was about to die.

I still think about Trooper Amos, a young man who died for nothing. I am not the only one. On April 20, 2012, 39 years after the killing, Amos’ sister wrote:

Thank you to all for remembering my brother, George Amos. It is wonderful to know that he is not forgotten and that his life and service have mattered. It is always harder at this time of year. Our mother recently passed away and it is comforting to know that both of my parents, all 4 of my grandparents and my brother are now reunited. God bless.

Officer Down Memorial Page, Reflections, Trooper George William Amos, Jr. (last accessed October 8, 2014).

That’s all there is. For Trooper Amos, there is no more.






31 responses

  1. Here’s the deal. I know the roads from Omaha to Norfolk. And from North Platte to Mullen. A state trooper is all alone with no help for miles from a fellow trooper or deputy sheriff. A few minutes of detention is no constitutional law violation.

    Scott Greenfield needs to understand the whole country doesn’t live in the metroplex.

  2. Um, “[t]hat case involved the seizure of a a large bag of methamphetamine” only after its discovery after the unconstitutionally prolonged traffic stop and search, am I right. Until then, the case only involved a traffic ticket. So why would the officer fear for his safety at the time he unconstitutionally prolonged the traffic stop?

    Also, by saying “there is no more” for Trooper Amos do you mean to take issue with his sister’s view of him? This is, after all, a vignette about death.

  3. John,

    With respect, my post is clear on both points. Dare I say you got out a bed on the angry side of it. What gives?

    All the best.


  4. Cornhead,

    I’m pretty sure Scott understands, I hope the kid law clerks on the Supreme Court understand, but, given the cert. grant, I doubt it.

    All the best.


  5. This is a tragic story, but it doesn’t reveal very much about police work or constitutional law. It’s hard to get good numbers, but the best research I’ve seen on the dangerousness of traffic stops — http://blog.lib.umn.edu/jbs/Criminal%20Procedure%20in%20American%20Society/OfficersAssaulted.pdf — gives a conservative estimate of the likelihood of a police officer being killed during a traffic stop as one in 6.7 million (their midrange estimate is one in 13.4 million, and the high end estimate is one in one in 20.1 million). Their data was for the decade from 1988-1997; violent crime has dropped significantly since then. Making judgments about the law that applies to every routine traffic stop on the basis of such a rare event is like making policy judgments about routine day-to-day experiences with an eye to preventing deaths by lightning strike (the odds of any particular American being killed by lightning in the course of a given year are about one in 5 million). And the assumption by police that any given person may be waiting to kill them during a traffic stop is what leads to things like the shooting of Levar Jones — who thankfully was not killed, but who also has a family — at a gas station when he reached into his car to get his license: http://www.theatlantic.com/national/archive/2014/09/cop-asks-for-mans-license-shoots-him-when-he-reaches-for-it/380775/

  6. “Angry”? The mildest of snark at most. Admittedly I haven’t followed the links in your post, but I have reread the post itself to see what I missed that is so clear, and I’m still missing it.

    I suppose it could be reasonable for a trooper to stay in his car and wait for back up even for a mere traffic stop, on a lonely stretch of highway when there’s two men in a car. But your post refers to waiting for back specifically so that a dog sniff can be safely done. My understanding is that a stop cannot be prolonged for that purpose, but that a dog sniff can be done so long as it’s done within the time it takes to issue a ticket.

    If you’re saying your post is clear on the matter of death itself, then I can only take it in the way I interpreted it, with the “there is no more” concluding the post and coming right after the quote of the sister. This is of great societal significance, and directly relevant to the contemporary obsession with officer safety over the old slogan of “to protect and serve.” Although being a police officer is hardly the most dangerous job statistically, the respect society affords the profession is based upon its willingness to accept its risks.

    Whence comes our culture’s great fear of death and obsession with safety? From this pervasive notion that “there is no more.” It’s hardly an attitude one would expect to breed heroes.

  7. It is easy for the public to misunderstand and think that those of us who defend the accused, the convicted, the often guilty have no compassion for the victims of crime. As I think you understand, Judge, it’s not true.

    But we do stand by the principle that the Constitution should control even when its violation might secure some extra degree of safety for someone. Abandon that, and we abandon the rule of law for a rule of convenience – or what I call the Law of Rule.

    It’s hyperbolic in this context though the slippery slope leads there, to point out that a sufficiently rigid police state can substantially reduce street crime. Whether the product is worth the price is a decision the framers made for us.

  8. Jeff,

    I agree with everything you wrote in your comment.

    As I know you appreciate, Ed, my law partner defended the killer. Ed is the best lawyer I have ever known and the best person I have ever known as well. Ed taught me to represent all of our clients zealously, whether I liked them or not. Ed also taught me to have compassion for everyone we dealt with–he was kind to most and civil to all. I try to emulate him, but often fail. Thus, I appreciate and second your point about criminal defense lawyers.

    As I think you also know, we all have experiences that shape our perception of the world. Since Scott wrote about what he saw as undue deference to the safety of police on my part, it was my hope to objectively describe one event (among various others) that may be relevant to how I see things. As indicated in the introduction, I did not intend the vignette as an excuse, an explanation, a denial or an admission. I intended simply to describe an experience of mine, and let the reader draw his or her own conclusions about how that experience might have shaped my views as a judge.

    All the best.


  9. Griff,

    I intended the vignette to objectively to describe an experience of mine, and let the reader draw his or her own conclusions about how that experience might have shaped my views as a judge. I had no broader aspirations.

    All the best.


  10. Of course. Unlike Kindley, I never thought otherwise. And I appreciated (as I always appreciate) the transparency and your recognition of the relationship between experience and both perception and performance.

  11. What the hell, Gamso? What exactly do you think I thought that is so different from and inferior to what you thought, other than my bringing the nature of death and its relationship to safety into it? You, I know, unless something has changed, share the judge’s view on that, but how is that interpreting the judge’s post as the excuse or denial he disavowed at the beginning? Was my comment not sweet enough for you? I take your comment as missing me coming over to your blog and busting your chops as often as I used to do. Duly noted🙂

  12. I think I can confidently say that we are all for the safety of our police, whether they are in the middle of the Nebraska plains or in Times Square. But that truly is a nonsequitor. This is a matter of good public policy, not really constitutional law.

    I do not see this as a safety issue in Rodriguez. If the traffic stop was over, let the people go on their way. If the traffic stop was underway, but the officer was too afraid to approach the car and issue a ticket, wait for backup. My understanding was that the officer only extended the stop for a drug sniff, not for safety.

    If we give unfettered deference to an officer’s safety, do we not create a moral hazard? If there truly is an issue of safety, I would simply apply the exclusionary rule. If the police believe a safety search is necessary of if a stop needs to be prolonged to protect the officer’s safety, the State should not be able to prosecute for contraband found in the search. Then we will get out of the issue completely, the police will be safe and the people will be confident that the police do not have an incentive to lie about their intent simply to justify a search (the police incentive is receipt of commendations for the arrest and getting a bad guy off the street). Of course, this would have to be passed as a law, because such a search would not be “unreasonable” and would not violate the fourth amendment.

    We should all be concerned about the safety of the police. But, too, we should be concerned about the safety and rights of our citezenry.

  13. The point being: yeah, bringing a drug-sniffing drug around to a traffic stop presumably does increase the danger to an officer significantly, over what it would have been if he was issuing a mere speeding ticket, so it’s quite understandable at that point that he’d want another officer there for the dog sniff. But that’s putting the cart before the horse. Just as I can’t hold a motorist beyond the time it takes to write a ticket for the K-9 unit to get there, if I myself am a K-9 unit I can’t hold the motorist beyond the time it takes to write a ticket until back up gets there if I’m concerned about my safety. Gotta let him go without the dog sniff. But I really need to read the case.

  14. Lighten up, John.

    It was my impression from your comments that you were (are?) reading more of direct substance about his views on the Constitutional/policy issues involved into the Judge’s comments than I was or than it seemed (and seems) to me he intended.

    I’m not sure what view you think it is that the Judge and I share (some views/attitudes we clearly do – others it’s pretty clear to me, and I think the Judge, we don’t).

    But really, this is Judge Kopf’s blog – hardly an appropriate place to carry on a personal back and forth.

  15. Your description of the Amos case touched me. Hard. Anyone who defends violent offenders at trial, has either felt this, or is less than human.

  16. Maybe Judge was defending Aquinas against Scotus on the need of our bodies to recognize one another after death, and noting that the reunion would have to await the General Resurrection.

  17. Curious when Founders adopted exclusionary rule and made it applicable to states, some of us are old enough to remember the silver platter doctrine and shocking to the conscience, which this case ain’t, country maybe better and more free now but one may have legitimate doubts.

  18. MR,

    Thank you for your nice remarks.

    I remember how much my partner worried about the case, and all the lives that had been altered. As you might imagine, in a town then consisting of about 5,000 people, zealously taking on the defense of a man who killed a respected Trooper, leaving a wife and two little kids, required miles and miles of guts. That was (and is) Ed Cook, a man with a backbone of steel but the most gentle and kind person I have ever known.

    All the best.


  19. I myself have doubts about “personal” immortality as popularly conceived. It’s not that particular reasonable doubt that, it seems to me, necessarily engenders fear. I’m more of an Advaita Vedanta man myself.

  20. Amos stopped the car because he thought the driver was drunk; the stop occurred on an isolated stretch of I-80. I’ve driven I-80 a number of times; there isn’t any place between the Quad Cities and Denver that isn’t isolated. He wants to look the car over, but he’s alone, and drunks can be dangerous.

    Detain them while waiting for backup to do a sniff? Let them go on about their way, with the potential that a drunk driver will kill himself, his passenger, and/or another motorist in an accident?

    It’s not all that cut and dried, even with the Constitution in the mix. At least not for this dumb Texan limited government conservative.

    Protect and serve? It’s tough for a cop to do that when he’s dead. Certainly we expect him to take risks in pursuit of that duty, just like we expect our soldiers to do when they’re protecting and serving a nation. But we don’t expect foolish risks in either case. And who would Amos have been protecting and serving by putting a drunk back on the road? Zero tolerance is foolish from either direction.

    If this anecdote–and that’s all it is–illustrates a problem, it’s the inadequate training Amos had in unarmed combat, and that cops generally still have.

    Eric Hines

  21. Judge:
    The phrase “the thin blue line”, used to describe law enforcement as the only barrier between us and the criminal element, reminds us that the barrier is temporarily broken when a police officer is attacked. Such a thing is not merely a crime but an assault on our society itself and, IMHO, worthy of the strongest possible response by the criminal justice system. Anything less is an insult to those connected to the victim, as well those who also work in law enforcement.

  22. Pingback: Due Deference and The Vignette | Simple Justice

  23. This tragedy would not have been avoided by an unconstitutional search. But it could have been avoided had the officer not been armed.

    Such is the difficulty in drawing policy morals from anecdotes.

  24. Michael,

    As for anecdotes, the sum total of these seemingly disparate events make us who we are. They should never be ignored, but I agree that they are not good foundations for policy.

    All the best.


  25. Pingback: De Minimis Extensions and Frisbee Golf | Simple Justice

  26. Pingback: Judicial Application of the First Rule of Law Enforcement | ExCop-LawStudent

%d bloggers like this: