An amendment to Chief Justice Roberts’ “crafty solution”

Earlier, I wrote about the gay marriage case, and suggested the following speculation:

After listening to the oral arguments in the gay marriage case, I offer the following speculation about a reasonably likely outcome:

1. Chief Justice Roberts writes an opinion on question one finding that a state is not required to allow gay couples to marry within that state. He convinces Kennedy that not enough time has passed to enshrine gay marriage into the pantheon of Constitutional rights, and we don’t want a repeat of Roe.

2. The Chief writes an opinion on question two finding that State X must recognize a gay marriage that was lawfully entered into in State Y. Here the Chief relies upon long-standing conflict of law rules.

“Splitting the difference” in this way can arguably be seen as preserving the Court’s legitimacy in the face of arguments that it is merely another partisan political branch of the government and not a real court. But what do I know?

After thinking about it some more, I want to amend the first point. Thus,

1. Chief Justice Roberts writes an opinion on question one finding that a state is not required to allow gay couples to marry within that state. Chief Justice Roberts writes an opinion on question one holding that the writ of certiorari as to that question is “dismissed as improvidently granted.” He convinces Kennedy that not enough time has passed to enshrine gay marriage into the pantheon of Constitutional rights, and we don’t want a repeat of Roe. On the other hand, he tells Kennedy that we don’t want to set a precedent that there is no Constitutional right to gay marriage.

The Chief goes on to write an opinion on the second question presented as suggested in the first post–that is, anti-gay marriage states must recognize gay marriages lawfully entered into in pro-gay marriage states.


Another post on how the sausage is made: Petitions for writs of mandamus by pro se litigants


Let’s discuss making sausage.


Rule 21 of the Rules of Appellate Procedure provides in pertinent part as follows:

a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court must file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes.

(2)(A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

(5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court judge

The authority to issue a writ of mandamus comes from the All Writs Act. 28 U.S. Code § 1651(a) (“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”)

Essentially, a writ of mandamus is a direction by a superior court to a district judge.  It tells the judge to do, or refrain from doing, something that is inconsistent with the trial judge’s previous order (action). It is a way to get an issue before the superior court when an appeal would not be authorized because whatever the trial judge did was not a final order and normally no appeal will be heard from non-final orders. It also can be used when the petitioner lacks standing to appeal.

In the hands of experienced federal practitioners, the ability to seek review via a writ of mandamus is an important tool. For a fascinating mandamus case with extremely good lawyers that involved yours truly, see US v. FastNos. 12-2752, 12-2769 (8th Cir. 2013) (denying crime victim’s petition for writ of mandamus regarding my award of restitution in a criminal case involving child pornography), on remand from the Supreme Court, US v. Fast, Nos. 12-2752, 12-2769 (8th Cir. 2014) (remanding the case to me in light of Paroline v. United States, 134 S. Ct. 1710 (2014).)*

On the other hands, the ability to seek a writ of mandamus by pro se filers is a problem. Often, those petitions are entirely lacking in merit, and sometimes they are plainly frivolous. They slow down cases. Frequently, the Court of Appeals will call for a response from the trial judge before ruling, and the judge must then submit a careful written response. Moreover, the trial judge frequently freezes the case in place awaiting a decision from the Court of Appeals because the judge worries that if the petition is granted the bell cannot be unrung.

While the problem is, in my view, significant, I don’t know of any solution to it. I am reminded that making sausage is not a pretty process.


*On remand, I made the same award.


Batshit crazy law students

I am very serious. Some law students who call themselves feminists have gone batshit crazy.

If you care about the ethics and customs of American lawyers who actually practice law or you care about American legal education and intellectual honesty, please read Debra Cassens Weiss, Is teaching rape law too risky? Sensitive law students don’t want to discuss it, law prof says, ABA Journal (December 16, 2014).* After you have finished screaming, crying or vomiting, tell me what you think.**


*Kudos to Ms. Weiss and the ABA Journal.

**For the female trial lawyer, who also happens to be one of the best around these parts, thanks for sending me the link to this article and your wry comments related thereto.


For this and related matters in the context of the state of legal education, see Scott Greenfield’s excellent piece entitled, The Environmental Cleanup of Toxic Academia published today at Simple Justice.

A gentle rebuke to some Columbia law students

Re: “Columbia University Law School is allowing its students to reschedule their exams if they feel traumatized by the recent grand jury decisions in the Eric Garner and Michael Brown cases.” Jacob Gershman, Columbia Law School Lets Students Postpone Exams Due to Grand Jury Decisions, Wall Street Journal LawBlog (December 8, 2014)

Dear Columbia Law Students,

I mean this in the kindest way possible: If you postponed your exams because the Garner and Brown cases “traumatized” your psyche, there is a distinct possibility that you are unfit to practice law. If you are one of those who claimed “trauma,” and you still want to practice law, you must toughen up before you agree to take on a client. The practice of law is not about you.

downloadIn the world where practising lawyers toil, life is far more harsh than what you have experienced within the confines of your fine law school. Let me give you three examples of what I mean, expressed in the words of the lawyers* who lived those experiences:

1.  I’m not sure if this is what you are thinking of but I did ask the Fifth Circuit once to delay argument in a case because I was on maternity leave after my first child was born and still breast feeding. I don’t think i asked for that long a delay, maybe a month? but they were having none of it — it was an en banc argument and they were anxious to reverse i think — and denied the request. I doubted the court thinks of maternity leave as a valid reason for a delay in any case, which is an arguable point. I went to the argument, brought my breast pump with me. It broke on the way there. things were uncomfortable, you might say distracting, as a result.🙂 They argued amongst themselves during argument, and Judge Jolly, acting as the Chief Judge, had to reprimand some of them to keep them in line and to allow me to answer questions. They kept cutting me off to argue with the questioner. I needn’t have been there at all which is of course sometimes true in these matters. (Punctuation, capitalization and “People Emoji” as in original.)

2.  I represented a woman in an employment discrimination and ADA case in Southern District of New York. Judge had set a discovery deadline. A week before the deadline, client was set to appear for a deposition. But then her mother died suddenly, and I was out of the country. Client was bereft and in mourning, and incapable of dealing with it. Judge said no extension. So I had to get another lawyer for her and she had to show up that week.

3.  We started o[u]r new law firm in January 1995. That month, one of my senior partners (I was the junior of the four of us) dropped dead in the office on a Saturday preparing for a trial on Monday. I saw the judge Monday morning to request a continuance because of my partner’s death. The judge insisted that this was a landlord-tenant case and therefore a high priority. I explained that no one else at the firm [k]new the client [or] had spoken to any of the witnesses. The judge was not moved. I kept pleading. Finally, the judge asked me when the funeral was to be held. I told her the funeral was Thursday, so she set the trial for Friday. Needless to say, I was not as well [prepared] for trial as I would have liked to be.

I wish you all the best, but I fear that you will be ineffective unless you heed this warning. Far more importantly, I worry for the clients that you may one day represent if you fail to heed this warning. Allow me to restate, the practice of law is never, ever about you.


*None of the lawyers who gave me these examples knew how I intended to use them.


Please view the following from Scott Greenfield at Simple Justice:



Joan and I were terrified when our middle daughter, Lisa, took her first overseas teaching job in Barranquilla, Colombia. Like Buenaventura, Colombia, on the Pacific ocean, Barranquilla is a large port town on the Caribbean. Both places are dangerous and violent.

Examples: On her orientation with the parent and teacher organization, buses took the new teachers and parents for an evening in the old Spanish town of Cartagena, not far from Barranquilla. One SUV was in the front of the caravan and another in the back. They were packed with large, serious men and heavy duty automatic weapons. Lisa got used to large, serious men with heavy duty automatic weapons. They were always present at her school to protect the faculty and students, including the 16 year old girls who got breast implants in Miami to celebrate their coming of age.

By the time the first parent of one of Lisa’s students was killed by two men with machine pistols as they filled his Mercedes with bullets fired from their motor bikes, Lisa had become accustomed to the violence. That is part of the Colombia that she and we knew, and the Colombia that is the subject of the following story.

As I have said before regarding this guest writer, I have no proof that his stories are true. But, for reasons that are sufficient to me, I believe them. Since you, the readers, enjoyed his first guest post, I am privileged to give you a second sampling. I think you will enjoy it.


Flag, República de Colombia

Flag, República de Colombia

To the readers:

I am truly honored to have been asked by the judge to post another piece of my life. I owe huge credit to a friend, who edited this and changed it from a jumble of thoughts to what I hope you find to be coherent and well written. Most names and some locations have been changed to protect my identity as a former narcotics officer. The rest of this story is true. Join me and let’s hope we all return from:


Colombia. I roll the word over gently, like it’s a delicate object that might break and cut me if I squeeze too hard. I’m in the mountains now, many years later, and safe. Snow is on the ground and a beautiful river flows just outside my window. This scene makes it all the harder to believe I was there, especially under those circumstances.

On the Avianca flight from LA, I read a book that I picked up at the airport bookstore. Of all the books I could have chosen, what possessed me to buy Tom Clancy’s “A Clear and Present Danger,” a story about Colombian narco-terrorists; drugs and murder; and the cartel members in their sanctuary cities, Medellin and Cali.

The city where I was ultimately headed, alone, was Buenaventura, and I had to go through Cali to get there. Buenaventura, on the Pacific coast, wasn’t mentioned in the book, but it didn’t need to be to already have me on edge. A friend of mine in the DEA had described it as Colombia’s version of America’s Wild West. He said his agency didn’t send agents there because they didn’t want them killed, joking that it would be “a bad return on the Administration’s investment.” In less lighthearted terms, he gave me a stern warning about my safety.

The attorney I would be working for, Kathy Klager, was ambivalent about whether I should go. From what I had heard privately from her regular investigator, passion for the law and serving her clients well were not things that mattered much to her. This probably meant my well-being, as well. The AUSA in Seattle decided at the last minute that he wasn’t going to send his investigators to Colombia for the witness interviews either, because it was too dangerous.
So, why was I on that plane?

One could conjecture a lousy marriage played a part in my decision and wouldn’t be far off. The relationship wasn’t rocky so much as it was mildly, barely comfortable. The marriage wasn’t what either of us had bargained for. We were nearing the end of the race, exhausted, our eyes on the clock. My wife’s ambivalence on whether I took this assignment was telling. What caring wife would allow her husband to go alone to one of the most dangerous countries in the world? Then again, what caring husband would take on such an assignment?

This job was just a variation of what I’d been doing for the several years before I went private. I had been a cop, working narcotics. Some of the work was undercover, with a gauzy safety net of other narcs providing backup. It was mostly deep cover, though; all alone. I was seldom home, and that seemed okay with both my wife and me. This case was different from those others in that I was now working for the defense, but it was still a good excuse to get away from home for extended periods. Over the course of the case, I went to Seattle several times and appreciated the time away.

The case had me from the moment I read the initial complaint. DELFINA, an old bulk freighter of Honduran registry, had sailed into U.S. waters with 70 kilos of cocaine stashed in her cargo of gold ore tailings, and the first mate was facing a lot of hard time. The first mate on a commercial vessel is responsible for the loading of all cargo, hence the charges. Kathy got the case from the federal defender’s office as a conflict. The defenders had the captain and needed to hire out representation for the first mate. Klager’s name was at the top of the conflict list and she got the call. Struggling attorneys, or those just beginning their practice, take court-appointed cases. State courts don’t pay much and those cases are easy to come by; federal courts pay more and it’s tougher to get admitted to federal practice. Many of the federal defender conflict attorneys I met ranked with the best. They were sharp, hard working and caring. It was difficult to tell where Klager stood in the lineup. When I asked Carl, her usual investigator, about her strong points, he arched his eyebrows just slightly above the top of his sunglasses. Message received.

Carl, a family man, refused the case because of the danger and suggested me. We had occasionally worked together as cops and left law enforcement at about the same time. He knew I was fluent in Spanish, and Kathy was not. She would need a translator when speaking with her client, and a Spanish speaker to handle the investigation in Colombia. I flew to Seattle to meet her, and based on a solid recommendation from Carl, she hired me, but it sure wasn’t love at first sight.

Klager’s manner was abrupt and condescending. I didn’t mind the abruptness—an understandable trait that trial attorneys have in common—but the condescension wasn’t something I was accustomed to. At the same time, her voice had a nasal whine that made her hard to listen to without wincing. However, Carl had a small sailboat he said he would put at my full disposal as both diversion and lodging. Having grown up on the coast and put in several thousand miles as a single-handed sailor, I couldn’t resist. I pocketed my initial dislike of Kathy, flew back to Colorado and soon after, drove my old Subaru, with all my old smelly sailing gear, to Seattle.

Much of my previous defense work was for some great lawyers who dug deep to defend their clients. I admired their instinct and creativity. My initial take on Klager was that she lacked the incisive ability to take charge of a case, pull it apart and reassemble the pieces that could be followed like course changes on a nautical chart: we start here and end up there. With Kathy, I felt like I was at the helm while the captain was asleep in her cabin. I also thought I was the only one who cared whether we arrived at our destination.

Max Malcovich and his partner, John Ziegler, were two of several keen-edged defense lawyers I’d worked for who stood in sharp contrast to Klager. As evidence of his creativity, John once took a rent-a-pastor into jail along with a woman who was scheduled to testify against his client in a serious assault case. The pastor performed a legal jailhouse wedding and the new bride couldn’t be made to testify against her husband. The jury acquitted.

I’d had a lucrative relationship with Max for a couple of years before John called me with a question about a small black metal device that one of his clients found attached to the underside of his car. I got the box, about the size of a pack of cigarettes, and took it to a radio guy I knew. The frequency was set to broadcast on a band used by federal law enforcement. He practically threw it back at me.

The Feds knew that their tracking device had been discovered and their investigation was over. Ziegler’s client was a high-level and very active drug dealer. The discovery of the device probably stopped him from doing more well-observed deals which would have added many years to his prison sentence. This put the attorney in a comfortable position and he cut a reasonable deal for his client when charges were finally filed. What I had done in identifying the transmitter was a simple thing, but it impressed Ziegler and I was set with him for many more cases.

Max hired me to defend a client who was popped on a state parole violation. This guy was a real scammer. Promoting a quasi-religious doctrine, he took money and real estate from his flock, screwed the wives, abused the kids and got away with it for several years. What astonished me was that his followers mostly seemed okay with it all. The state wasn’t, and sent him to prison for several years. A condition of his parole was that he avoid contact with any of the people who testified against him.

An older woman who was just such a witness claimed she saw him and that he was stalking her. She lived on a boat in a private marina with locked gates. I waited until a boater headed for a gate and fell in beside him, fumbling in my pockets, looking for the key I didn’t have. He accepted me as a fellow boater and held the gate open. I located the slip and saw the name of the boat was MARANATHA. I dredged up a vague Old Testament reference to the name and drew up a quick plan.

Approaching the boat, I introduced myself to the old woman seated outside in the cockpit, telling her that I’d been hired by the defendant’s attorney. I confessed that I was considering taking the case, but that as a good Christian, was having qualms about working for a Jewish attorney who represented such a creep.
God, I don’t know if you exist, but forgive me on this one if you do.

We spoke a while about our shared faith and the need to tell the truth always. I asked about her statement to the police that she had seen the guy and waited through a long pause. Knowing when to say nothing can be more important than talking. She then said haltingly, “You know, I’m…I’m blind as a bat without my glasses.”

Here was the softball being lobbed my way, chest high and centered over the plate. “You weren’t wearing your glasses when you saw him, were you?” “No,” she said quietly, her dull, filmy eyes watching a gull perched on the transom of her boat. I queried her some more and found that one of the other original witnesses—who also hadn’t seen him—had put her up to it. Case dismissed.

My work for these two attorneys paved the way for more cases with other excellent lawyers. My impression was that Kathy wasn’t one of those, but she represented guaranteed federal money, and I jumped at the chance to work on an interesting international drug case.

Kathy treated me as an inferior, and was routinely and unapologetically late for meetings. In exchange, I got some satisfaction by irritating her. Once, while waiting for her far too long in her office, I saw a seagull perched just outside the window, which I opened. A few grapes from a nearby bowl were enough to entice the bird to hop onto her desk. It enjoyed its meal on a court pleading Kathy was working on. She gave me her best withering look when she came in and shooed the gull back out the window. Maybe she won’t make me wait so long next time.

When not working on the case or sailing on the lovely, but tame, Puget Sound, I did a lot of back-country hiking in the Cascades. None of this helped the smell of my early-generation Polypro base layers, which, in spite of vigorous washings at the marina Laundromat, still reeked, so I kept them stashed in the Subie. The Feds use the Pierce county jail in Tacoma to handle their Seattle area suspects. When Kathy and I went there to visit her Colombian client for the first time, she asked, “Your car or mine?” “Oh, heck, let’s take mine.” It was one of the rare, really hot days in Seattle, and my gear was festering in the small car. Out of pity, I finally allowed her to smoke in the car to dull the smell.

The DELFINA had come to the DEA’s attention as suspicious while in Mexican waters, sailing north from Colombia. The DEA alerted the Coast Guard, which began tracking the ship. Fate deals interesting hands and many years later, in a beer and campfire conversation with a friend who is a NOAA Special Agent, he told me he was on one of the Coast Guard surveillance flights that followed the vessel as it crossed into U.S. waters.

The old ship was bound for Tacoma with gold mine tailings. It was a slow voyage, hindered by several apparent breakdowns. By the time it finally arrived in Tacoma, it struggled to make it to the tugs that would dock her. The voyage had taken so long, or the ship had been so poorly provisioned, that the crew had run out of food. In a rare humanitarian gesture, the longshoremen there to offload the ore bought the crew a meal.

DEA and Customs agents practically fought each other to get on the ship first, unearthing the cocaine hidden among the mounds of ore tailings in the hold. By the time I got the case, the captain and the first mate had been charged and the rest of the crew deported. The DEA alleged that DELFINA had stopped in at least one Mexican port to deliver cocaine and had discharged more to vessels lying offshore. Analysis of paint scrapes on its hull caused by contact with pick-up boats at sea, according to the government, would prove this.

I got the eeriest feeling when inspecting the ship in the company of a Customs agent. From the dock, DELFINA showed a dangerous list, or off-center lean, meaning that she had taken on a lot of water on one side. Water streamed from several of the freeing ports, indicating that pumps were working to keep her afloat. Stout mooring hawsers seemed to be the only thing preventing the vessel from capsizing.

The interior of DELFINA looked even worse than the exterior. Bones from the chicken dinner that the longshoremen had bought the crew lay strewn about the galley. Paint was peeling throughout, and from stem to stern, it looked like no maintenance had been done in years. In the engine room, oily sea water came halfway up the antiquated single engine, and I couldn’t even spot the generator. I was both spooked and fascinated.

The captain and mate were seasoned mariners. If they did know about the cocaine and were party to the smuggling, how could they hope to carry it off in such an unreliable old tramp? Even if they didn’t know about the drugs, they had to understand the doomed nature of the voyage. DELFINA was a derelict and never meant to make a round trip. Whereas I had sailed offshore in small boats for so many thousands of miles, I wouldn’t think of leaving a harbor on this 250 foot wreck.

As I think about this now, I’m reminded of the words of a Mark Knopfler song: “She’s a dead ship sailing, skeleton crew.” Whoever masterminded the cocaine shipment had decided that both ship and crew were expendable. What sort of terrible control did he exercise over them? Could he even have sent DELFINA out as a disposable decoy to draw attention away from another ship that carried much more coke?

The only way I could think of to weaken the government’s case was to take the culpability off Kathy’s client and point it somewhere else: the heartless bastard in charge. This meant that I was going into hostile territory to find a person who didn’t care who lived or died. Kathy’s client, Alfonso, was my age and had a wife and two kids living in Cartagena. He spoke no English and his attorney didn’t care about him. I did care, and that’s why I was on the plane.

After the 14 hour flight, during which time I had digested the Clancy novel and was scared stiff of Colombia, the wheels touched down. Simultaneously, the passengers erupted in loud applause. Jeez, I wondered, are safe landings that rare in this country? I had several more flights to make over the next ten days. What were my odds of survival?

Three things stand out in the memory of my first hour in Bogota. Number one was machine guns, and lots of them, all over the airport. Next came car horns. I caught a taxi to the Hotel Intercontinental for my first meeting and all I heard were drivers honking. There were no traffic jams, and cars and trucks moved nicely. Still, everyone was honking. Just a Colombian thing, I figured. The third was a miserable wretch on a narrow sidewalk huddled against a tall concrete wall. His pants were around his ankles as he squatted, and a stream of yellow-green diarrhea erupted from him. How long will this poor guy be alive?

The Intercontinental was my first-ever luxury hotel. I expected to be dazzled and was. I had agreed to the meeting there at the suggestion of the representative of the Frontino Mining Company. My objective was to trace the ore shipment from the source, one of their mines near Medellin, to where it was loaded at the Pacific port city of Buenaventura. I wandered about the expansive and elegant lobby searching for someone who looked like he had an interest in a gold mine. He was easy to spot; he wore an immaculate black suit and carried a gold-handled cane. His name was Dr. Luis Olivares. I soon came to realize that just about everyone in Colombia calls themselves Doctor. This doctor was a lawyer. I had spoken with him on the phone about a week earlier and had some trouble understanding him. I speak Spanish well in person but not on the telephone. It helps me to see the lips move. He spoke in short, clipped sentences that I was to find typical throughout the country. Where a Mexican says, “Como esta? Que estas haciendo? (How are you? What are you doing?), a Columbian will say, “Comota? Que etaciendo?”

After we exchanged pleasantries, Olivares got down to business, assuring me that his employer had nothing to do with the cocaine shipment. I expected to hear this, but really wanted to know more about the ore and how it was transported. The ore was fine tailings, almost powder, from the gold mine operation. Technology was not sufficient in Colombia to extract all the gold from the tailings, Olivares explained, so it was shipped to a smelter in Tacoma, Washington. However, the good doctor/lawyer told me, the shipment in question was their last to the U.S. because new environmental regulations prohibited further refinement there.

The closest port with good transportation from Medellin to service the U.S. west coast is Buenaventura. The ore was loaded into 50 kilo bags and taken by train to Cali. It was offloaded from the train and placed on trucks, then driven over a mountain range to Buenaventura. In spite of Olivares’s claims of his company’s innocence, I found myself trying to estimate the cost of transporting low grade ore across a rugged country and then by ship all the way to Washington. Transportation had to be hugely expensive, even taking into account third world costs and wages. Packing quantities of cocaine in with the ore would certainly help offset those costs. I nodded sympathetically at his exhortations of non-involvement.

My business concluded with Olivares, I took a taxi to my own hotel, the less glamorous Plaza. I wasn’t scheduled to fly out for two days, so I spent the next day exploring Bogota by foot and taxi. It surprised me. I had expected another version of Mexico, with haphazard construction practices and poorly planned cities. The Colombian capital was much more organized and streamlined than any large Mexican city I’d been in. I touched brick buildings, expecting the mortar to fall out into my hands. It didn’t. Construction crews looked more professional Mexico’s, and the equipment they used was modern.

The food was also a surprise. Not a taco or tortilla on any menu I saw. The origins of the food were more European, with hearty breads, thick soups and delicately prepared meat dishes. Even though the U.S. government had pulled out of the planned interviews and ended their investigation, I was still spending their dollars and treated myself to some fine and expensive meals.

I had never experienced airport security to the degree I did in Colombia. It was a country known for high kidnapping occurrence, but skyjackings and aircraft downings were also common. Machine guns were everywhere. The problem is you can’t really know who the guys carrying them are working for. I was searched thoroughly, presumably for weapons and/or drugs. If it was for drugs, was it a government effort to curtail traffic? Or would it be one of the cartels paying off police to try to nab members of a competing cartel to stop them from transporting? Or, were the soldiers freelancing to make some money for themselves? The morning newspaper carried an article about women dressing as nuns being arrested for smuggling large amounts of cocaine onto planes. If you can’t trust a nun…

I traveled under a naïve fantasy that I was protected from all sides because I was working on behalf of a Colombian national arrested by the American government. This could be viewed as delusional to an unprecedented extreme, but for a while, I sallied forth cloaked in this false sense of security. Along with the social chaos resulting from frequent and public executions, the political scene in the county was a mess. There was a vicious fight between the government and FARC, the Revolutionary Army of Colombia, a left wing group that supported itself through the drug trade and utilized practices as brutal as those employed by the government and the cartels. My DEA friend had practically held my head in his hands to bore into my eyes while he told me to TRUST NO ONE in Colombia.

Colombia is a huge exporter of cut flowers. Flying into and out of Bogota, I saw vast expanses of flower fields cut into the mountainsides. Circling Cali a couple of hours after leaving Bogota, I was struck by the lack of pretense of any economic enterprise other than drugs. Instead of Bogota’s miles of hothouses, one sees acres and acres of private jets. Boisterous applause again greeted wheels down. And of course, soldiers with machine guns, even more than in Bogota, patrolling the terminal.

The look on the face of my cabby when I hired him to take me to Buenaventura, some three hours away, said a lot. First, he demanded cash in advance. I translated his accompanying look to mean, “I won’t count on you as a return fare.” If I thought security couldn’t be tighter than at Colombian airports, I was mistaken. Any decent-looking house in Cali—and there were loads of them—had openly armed guards in front of heavy iron gates. Were these guards protecting good guys, such as judges, from the cartels? (Any judge who rules against the drug lords is marked for execution.) Or, are they cartel guys protecting themselves from competitors? Or from the FARC guerrillas?

As we climbed the hills above Cali, I noticed scattered fields of flowers. “Is this like Bogota,” I asked my cabby, “are lots of flowers grown here?” He answered blandly that they were poppies. Back when I was a narc I had heard rumors that the Colombians were getting into heroin production and export, and here was proof. Extrapolating what I had seen of how Colombian building practices far exceeded those of the Mexicans, I could only imagine the chilling efficiency they would bring to the heroin trade.

The western U.S. heroin business had been dominated for years by Mexicans who imported what was known as “black tar.” It was a dark, thick, goo that had a vile smell. The Mexicans called it “chiva,” meaning female goat. It was often cooked in bathtubs and DEA lab analyses had shown rat feces in many samples. The Colombians would do it better, no doubt. It would be clean, cheap, potent and delivered on time. What would the Mexican narcotraficantes have to say about this?

Once we passed over the summit of the mountains, the wide-open poppy fields gave way to dense jungle on the western slope. The population changed dramatically from Cali-based white and mestizo to black. The poverty looked crushing, with lots of people living in tiny shacks clinging to steep hillsides. And yet, on almost every clothesline were suspended shiny and new-looking Spandex garments.

As we approached Buenaventura, the terrain flattened and the jungle yielded to sprawling settlements of shacks. Entering the city, I saw jeeps packed with young soldiers holding machine guns. Christ, arms dealers must love this country.

My destination was Hotel Estacion. It was gorgeous and stately, reminding me of the graceful antediluvian mansions in our southern states. I arrived late in the afternoon and wanted to check the city out before my work started the next morning. The hotel fronted on a large bay with a long promenade that was coming to life with the approach of evening. I’m a water guy. Any chance I have in a new city on the water, I head to the docks. But I’d never seen one like this. Real banana boats! They were long, slender and graceful, painted gaily and gaudily. Nothing like this in my landlocked Colorado, I mused. Bands were playing and people were dancing. Merchants hawked their wares and vendors their foods. Where had I heard this was the Wild West and too dangerous a place? I soaked it all in. For a few hours I would ignore the looming danger and glory in the adventure.

My dinner that night in the hotel restaurant was Tesoro del Mar, Treasure of the Sea. Chunks of fish, clams, prawns and more swimming in garlic, cream, herbs and wine. It was beautifully prepared and served in an elegant dining room that looked out on the bay. While I was enjoying the meal and my evening, I began to feel watched. It wasn’t that I was under surveillance in any active way. Nor was it just idle interest in a guy who didn’t appear a business type, staying at the hotel and dining alone. Although I spoke Spanish very well, there was no hiding I was American. Nobody comes here recreationally. If I wasn’t here to play, there could only be one other reason for my presence: something to do with drugs. While I still clung to the hope that since I was here defending a Colombian I’d have some measure of security, I felt that the lifeline my hands clung to was starting to slip through my fingers.

The tenor of this city of 100,000 inhabitants had changed by the time I left the dining room. It was starting to shrink, and a feeling of malevolence began to crowd me. With darkness, the waterfront became quiet and kept me from walking off my dinner there. Occasional bursts of gunfire came from the ghettos I had ridden through earlier. I went to my room and began preparing for the next day’s interviews.

After breakfast, my destination was the shipping docks to see how the loading of the ore was done. The sole government witness in Buenaventura, before the AUSA bailed on the interviews, was the business agent for the local longshoremen’s union. He was to have testified that my client officiated over the loading of the cocaine. I was in his office early. He was an affable guy and gave every impression of wanting to help. He didn’t know my client, but understood his predicament. He also emphatically denied telling anyone that my client was involved in the smuggling operation. Shoot, this wasn’t going to be so tough after all. I wondered about the change taking place within me: Kathy Klager was my client, not Alfonso, yet I now considered him as such.

We drove to the docks in the agent’s car, a coughing old Fiat. He escorted me past the machine gun-toting soldiers and brusquely waved them off when they asked for my identification. We walked to a huge shed, open on all sides. In one lonely corner were two pallets of large woven plastic mesh sacks, such as grain is sold in. The business agent explained that these were from the Frontino gold mine and were exactly like those loaded aboard the DELFINA. He said sadly that since the Tacoma smelter had ceased processing the ore, very little was being brought to Buenaventura and his longshoremen had lost a lot of work.

The pier itself was several hundred yards away. I looked around for forklifts and cranes. Seeing none, I asked him how the heavy bags got from the shed to the ship. He made a motion of bending over, straightening up and throwing a heavy bag over his shoulder. I tried not to show surprise, but failed.

Per the government reports, the loading of DELFINA’s ore had gone on for forty eight hours. My client concurred with this, saying that he and the captain had taken six hour watches to oversee the process. Once the bags were brought onto the ship, they were cut open and the ore dumped into the hold. I noticed that small amounts of ore had spilled from the sacks onto the ground. It was almost as fine as powder. How far did Colombia’s modern ways reach? Were the longshoremen equipped with respirators? Based on the method of loading, absolutely not. La vida es barata. Life is cheap.

We walked over to a ship that was being loaded with fruit by a number of his men. He said it was being done in a way similar to the DELFINA and asked if I’d like to go below in one of the cargo holds and see for myself. He was friendly enough, but the words TRUST NO ONE echoed in my ears, so I politely declined. He drove me back to his office where I had planned to do a taped interview with him. He begged off until the next day, saying he had other things to attend to. We made an appointment for early the next morning. I had gained a lot this day. The so-called government witness was no witness at all. He would provide nothing to incriminate my client.

An explanation of the relativity of innocence is in order. An attorney doesn’t need to believe a client is innocent in order to defend that person. In fact, very few defense attorneys will ever ask their client if they did the deed. The best rationalization they use, even when defending murderers or worse, is that every person has a right to an attorney who will defend him or her to the best of their ability. This cup holds only so much water.

I recall one murder case that affected both the defense attorney and me deeply. A jail guard was accused of murdering his girlfriend and running away to escape the police. He was captured in his mom’s house in the southwest and brought back for trial. I was hired to investigate for the defense. It was a complicated investigation, with lots of interviews and background work. Our client told us of his strong suspicions that a former boyfriend of the dead woman had killed her. We built the case on this possibility. As to why he fled, our client was black and the dead woman white. He said he ran because he knew suspicion would fall on him due to racism. My ass. His attorney knew he did it, and I knew he did it.

The trial lasted several days and I testified on the final one. The jury was adjourned to begin their deliberations the next day. Both sides, defense and prosecution, expected a quick verdict. I was having dinner out that night when my pager vibrated. “007” was the only message from the attorney. License to kill. He (I prefer to say he rather that we) had gotten his client off. Within a few months, this attorney left his practice to teach law courses at a local junior college. How much longer would I stay in this business?

I had never asked Alfonso if he was guilty. I knew he was, in a qualified way. Guilt in Colombia isn’t like guilt in most places. How culpable can you be when someone holds a gun to your head, or to a family member’s head, and tells you to do something and you know it’s no bluff? My plan had worked in the prison guard’s case as it had in others. To remove suspicion from your client, point at someone else and do it vigorously.

A shipping agent knows everyone and everything involved with a ship. Because of this, the shipping agent, Captain Gomez, was high on my suspect list. For a cartel to export product, the agent would be the likely first contact. If this person were already on the cartel’s payroll, it would be that much easier. I was developing the scenario: even though Medellin figured in the equation as the source for the gold ore tailings, I didn’t think that cartel was involved. At the time, the Medellin and Cali cartels were involved in a bloody power struggle. (This was ultimately resolved with Cali coming out on top with the capture, escape and recapture of Pablo Escobar, kingpin of Medellin.) It didn’t make sense for Medellin to ship product through an important port for the Cali group, Buenaventura. I figured the coke came from Cali with instructions on how it was to be shipped.

The shipping agent’s job was to find the right ship. DELFINA was owned by a Colombian shipping company called Interfletes LTD, but was registered in Honduras, considered by the International Shipping Bureau to be one of the most liberal and open ship registries in the world. A vessel can be registered under the Honduran flag within a maximum of 24 hours after submitting an application, some supporting documentation and registry fees. This lax registry system leads to sleazy operations bested only by Liberia.

The drugs were delivered to the dock, but how? I recalled the longshoremen’s business agent dismissing the soldiers with just a wave of his hand. He had to be involved also. Now it gets tricky for the defense. The obvious person to point to would be the captain, but our client wasn’t going to roll on his friend. The maritime tradition of the first mate being in charge of the loading of a cargo vessel looked bad for our guy, and the government case rested largely on this. My best chance—our client’s best chance—was to get something on Gomez, the shipping agent, and fast; I was scheduled to head back to Cali late the next morning to get an afternoon flight out to Bogota. I couldn’t have imagined how long the next 18 hours would be.

I searched the Buenaventura waterfront for the agent’s office for an hour or so. People I spoke to were polite, but they either didn’t know of him, or just wouldn’t tell me. I’d try again in the morning. The waterfront was starting to come alive as the sun set, but I was tired and hungry and didn’t stay for the party. The same feeling of vulnerability I’d experienced the night before set in as darkness came on, so I made my way back to the hotel and another great dinner.

A telltale in sailing is a piece of cloth that hangs from the mainsail to indicate the wind direction. A telltale in my line of work was a life ring. Before I left my room for the restaurant, I bundled my important notes in my jacket to take with me. I put a small piece of paper under one of the legs of a chair that I placed in front of my backpack on the nightstand. As I left, I put one more, a very small one, inside the door jamb when I closed the door. My final telltale was a strand of hair that I pulled out of my head, licked and placed on the outside of the door jamb.

Ordering Tesoro del Mar didn’t show a lot of creativity for my second dinner, but it was too good the night before to pass up. This time, the food was still great, but the service was lacking. I felt the shadow of danger growing around me. I imagined that the waiter didn’t see the value in paying much attention to someone who would be dead soon. I thought about the telltales I’d left in my room. Would they still be in place when I returned?

A warm and gentle tropical rain was falling as I left the restaurant. At my door, I lit a match I’d taken from the lobby and held it to the door. The hair was gone. Not a big deal, because something held in place with spit can easily fall off. I opened the door slowly. The telltale I’d placed in the jamb didn’t fall; it was already on the carpet about 18 inches away. The chair in front in my backpack had been moved, exposing the first telltale. Holy shit. They’ve got me.

Where to go? My Colombian money was running low; I’d planned to get some traveler’s checks cashed in the morning. Money would have been no use to me now anyway, because I wouldn’t stay in another hotel even if I could find one. I left my room on the second floor trying to appear calm and headed to the waterfront, then turned away; I wasn’t about to go there and be exposed. The rain was getting heavier. As I neared the perimeter of the hotel grounds, I spotted a narrow path to my right. As far as I could tell, I wasn’t being followed. I tried but failed to convince myself that I could return to my room to sleep, that whoever had entered it did it as an exploratory mission and wasn’t intent on killing me. I knew enough about Colombia, I again tried to convince myself, that if someone had wanted me dead, it would have been done already. On the other hand, perhaps they were now reporting their findings to their boss and he would make the decision that very night.

I hadn’t left anything important in the paperwork stashed in my backpack. Hoping they weren’t too obvious, I’d placed court papers showing me as a defense investigator on top of the pile. Now, I didn’t figure it would matter much. I’ve had my share of miserable nights, but even now, this one tops them all. I spent the night outside under the scanty protection of a palm tree surrounded by a thicket of shrubs, dozing only briefly, in spite of my resolve to stay awake.

At first light, danger or no, I returned to my room and stood in the shower while hot water poured over me. At least it’s not a Mexican shower, where the hot water wouldn’t last, or drain. I wasn’t sure what I had accomplished by staying out all night. Perhaps I’d just succumbed to my paranoia. Perhaps I’d kept myself alive. Back to work.

My tasks that day were to tape record an interview with the longshore guy, find and interview the shipping agent, cash some traveler’s checks and get the hell out of town. My plans went awry almost from the start. The business agent was in his office, but he had become mute overnight. He barely allowed me in and refused to be tape recorded. I was there less than five minutes before being brusquely told to leave. It was too early for the banks to open, so I walked the waterfront trying to find Gomez, the shipping agent. I didn’t have far to go.

Two men had been following me for a block and a half, gradually coming closer until they were within speaking distance. “Busca el capitan Gomez?” (Are you looking for captain Gomez?) I heard from behind. I turned, trying not to show the fear that was crawling through my body, and answered, “Pues, si, saben donde esta?” (Well, yeah, do you know where he is?”) “Sigue en adelante.” (Keep going straight ahead). I turned to talk to them, trying to see if they carried guns. It was a warm, humid morning. Everyone else on the street was in shirtsleeves. Both of these guys had jackets on, so I assumed they were armed. Even as a deep cover narc, I had never been a big fan of guns, but not for the first time in this town, I sure wished I had one. “A la derecha, sube la escalera.” To the right, up the staircase.

The cheesiest Hollywood director couldn’t have scripted this scene better. Gomez was seated behind an old wooden desk. His white linen suit was soiled. A creaky old fan whirled jerkily above his head. Flies buzzed around. He was wiry and had black eyes with a piercing stare. So this is where that feeling I’ve had comes from. “Pues, Señor Stevens, mucho gusto. parece que usted me busca.” (Well, Mr. Stevens, a pleasure to meet you. It seems you’ve been looking for me). He knows my name? “Igualmente,” (Equally my pleasure). Yes, I’d been looking for him, I explained. I went through my role, explaining carefully and in detail that I was here in the defense of a Colombian national accused of smuggling cocaine. I was hoping that he could provide information that might help in my client’s defense. How much else does he know about me? And how? Most likely the business agent.

Gomez leaned back in his chair, watching the flies buzzing around the fan as I stumbled though my dissertation. Yes, yes, he said after I’d finished, but how could he possibly help me? And what could have given me the idea that he would have any information about cocaine? His tough guys moved uncomfortably at this. I choked out a lame explanation about conducting a thorough investigation because I’d found some inconsistencies in the government’s theories. Oh, shoot. I shouldn’t have said that. He thinks I’m looking at him as the suspect.

Gomez leaned even farther back in his creaky old chair. Apparently he knew its limits and perhaps felt he needed to explain mine. “Señor Stevens, como encuentra nuestra ciudad?” How do you find our city? “Muy agradable,” I choked out. Very nice. “Y el clima?’ And the weather? “Igualmente agradable.” Also pleasant. “Señor Stevens, hay Norteamericanos que encuentran que el clima es malo para su salud. Es usted uno de ellos?” Mr. Stevens, there are North Americans who find that our climate is bad for their health. Are you one of those? He was speaking to me in formal Spanish. “Sabes que?” I said in a more familiar tone. “Estoy pensando que he cumplido lo que vine a hacer. Muchas gracias para su tiempo.” It was a huge gamble, but I had to take it. I’d told him that I’d finished what I came here to do and thanked him for his time. I bent over his desk, shook his hand as I stood up, and walked out of the office.

On the way back down the stairs, I wondered whether I’d feel pain immediately after the gunshot sounded and the bullet entered the back of my head, but I made it to the street. He’s going to let me live? I wasn’t in a joking mood, but thought to myself, He thinks I’m too stupid to kill. I’m not worth a bullet!

I felt that seconds mattered to my life. I headed back toward the hotel, stopping by a bank to cash my traveler’s checks. They wouldn’t do it. No excuse, no explanation, just blank looks. I crossed the street to another bank. Same story. This city was becoming very small indeed. At the hotel lobby I explained my plight to a set of unsympathetic ears behind the desk. The owner of these ears finally did agree to cash a check, but it was for a lesser amount than I wanted. In scary situations, a big wad of cash is comforting. It could be used as a bribe, for a getaway, maybe even a gun. As I counted the money, I realized he’d also clipped a few dollars for himself, which I made him put back. I might have been just one step ahead of dead, but I had my standards.

I scurried to my room, threw my clothes in the leather suitcase and charged out to the front of La Estacion. I may have amazed Gomez with my audacity, and possibly even convinced him I wasn’t scared as I left his office, but I was terrified then, and still was.

I got a cab, saying only one word, “Cali.” I sat back in the seat, breathing more easily now. A few blocks away, the cabbie asked where in Cali I was headed. The airport, I explained, for the afternoon flight to Bogota. The cab squealed to a stop. Faster than I could have imagined possible, the driver got out, opened the trunk, threw my bag out and opened my door. I guess I’m getting out here. Dumbass, I cursed myself. I’d said too much. He caught my accent, must have realized who I was, and didn’t want to get caught in the crossfire.

What in the hell was I going to do if I couldn’t get out of this place? The tropical sun was heating up last night’s rain on the street and muggying things up, but the sweat I felt was from my fear, not the humidity. I walked two blocks before I saw another cab. I hailed this one and he pulled up beside me. “Aeropuerto Cali” was emblazoned on the side of his door, a huge stroke of fortune for me. He had just dropped off a passenger from the Cali airport and had a chance to pick up a bonus return fare; he knew nothing about me. “Al aeropuerto,” I said, “Y con ganas!” To the airport, and with a will! This guy knew how to put his foot into his work and soon we were climbing the hills out of town and to safety. Well, maybe. The driver explained how dangerous this road could be, especially at night when bandits operated freely. At the top of the grade, with plenty of time to spare, he magnanimously suggested we stop at a roadside stand for a beer and some lunch, on me. I sensed he was a good guy and I agreed. No beer ever tasted better.

My driver delivered me to the airport in plenty of time, which as it turned out, I would need lots of, because as soon as I checked in, things got hinky. The Avianca attendant at the counter looked nervous as he scanned my passport and asked for my patience. He disappeared and returned several minutes later with a man in a suit accompanied by two soldiers, outfitted in battle fatigues and the obligatory machine guns. The suit motioned to one of the soldiers to grab my bag by the counter. He motioned brusquely for me to follow. Oh man, this doesn’t feel right.

We convened in a small room to the side of the waiting area. With no permission asked, nor granted, he unzipped by bag and threw the contents onto a nearby table. The bag was a cheap leather one I’d bought in Mexico several years before and had never paid much attention to. With the clothes out, the inspector focused on the bottom. I leaned over and looked down. There were lumpy spots in the lining. Oh, shit, this isn’t good. The likeliest of scenarios passed through my mind: that cocaine had been planted in the bag and I was a doomed man. Gomez had gotten to me without the messiness of the body of an American showing up. A knife flashed in one of the soldier’s hands and cut through the leather lining. Nothing. Just cheap, lumpy luggage. A disappointed look crossed the inspector’s face as he and the soldiers left the room. I crammed my clothes back in the bag and returned to the check-in counter. The flight took off into stormy weather and dropped into Bogota in the same. On time. I had to give it to the Colombians. Whether it was airline schedules or massive cocaine shipments, they were efficient.
I’d be on time for my appointment with Señor Alcantara, the agent in charge of security for Colombia’s largest shipping line, who was named as another of the government witnesses. Alcantara, I mused. Any word in Spanish that begins with the letters “al” denotes a Moorish origin. This meant that he came from uninterrupted Iberean stock and was probably very proud of it. I needed to find out what he might say in the unlikely event he’d be called to the U.S. to testify.

I was greeted warmly and openly at the Alcantara residence, which was in an upscale neighborhood of Bogota. As I’d come to expect, the AUSA had done the shotgun approach to his witness list. (Point the gun into the air. Shoot it. Hope a duck falls.) This fellow knew nothing of our case and could only offer anecdotal, general information on illegal shipments from Colombia. The ship used, of Honduran registry, was not his and he could only conjecture. When I explained the case to him, he guessed, but said he could never testify, that both the captain and mate knew that the cocaine had been brought on board. The underlying circumstances, he thought, were that they had been coerced. He made short work of this, wanting to know more about my experiences in Buenaventura. How had it gone? Who had I spoken to? What did I think? Then he really spooked me.

Most people are aware of the infamous reputations of Medellin and Cali, but Alcantara could not believe I had made it out of Buenaventura. He was shocked that I’d even gotten away from the docks. In the past year, he had lost six agents there, killed in the holds of ships, most likely by longshoremen paid by cartel bosses. Man, six is a lot of dead guys in just one year. He was positive that had I agreed to go into the ship’s hold with the business agent, I’d have met the same fate. And, having lived beyond the docks, he was even more surprised that Gomez let me walk away. He heaped congratulations on me for fingering Gomez as the most likely suspect responsible for the loading of the cocaine. He was genuinely impressed with my skills as an investigator and my apparent cat-like number of lives. We both wondered how many I’d squandered. Afraid he’d agree with me, I never mentioned my private theory that they all thought I was too stupid to kill.

(Through years of narco-terrorist murders and chaos, Buenaventura finally came into its own. In 2007, I ran across a New York Times article citing it as the most dangerous city in a very dangerous country. Its population had swelled to over 300,000 and its murder rate was far above that of any other Colombian city. I’m glad I got to know it when it was only a fledgling.)

I left Señor Alcantara’s in a heavy rain, convinced every car that passed while I waited for a cab had machine guns bristling from its curbside windows, its shooters anxious to open up on me. I made my way back to the hotel. I was starving, but too scared to do anything for dinner but order room service. I still had three days in this country and even though my next destination was supposedly the safest city in Colombia, I doubted my ability to last through them. I made the waiter put my food on the carpet outside and slipped some cash as a tip under the door.

My next destination was Cartagena. A friend and former captain of my client lived there and might be able to shed some light on what I’d come up with so far, but it was my client’s family, wife and two kids, who also lived there, that made me decide not to tuck my tail and cut back to the States. I’d promised Alfonso I would go see them and bring them what news I could of his case. If convicted of the charges, he faced more than 20 years; he was desperate to know how they were handling this.

The only thing I knew about Cartagena came from my client: he’d told me it was clean, by Colombian drug standards, and beautiful. Soon after landing—again to applause—I caught a cab to my hotel. It was located right on the beach, fronting on a shimmering Caribbean Sea. I shopped in some nearby stores for toys for the kids and groceries for his wife, spending a good deal of government money and not feeling at all bad about it. Their neighborhood was modest and clean. Their small house was the same. The wife had known I was coming and greeted me like a family member. The kids were thrilled with their toys, and wanted me to take their love back to their papi. I couldn’t bring myself to ask what she had told them about their dad’s absence. When they went outside to play, I sat with his wife at the kitchen table and explained the case to her.

Talking with her was tough. If things went badly with the case, she wouldn’t see her husband for many years. She and the kids were living on a small amount of savings that wouldn’t last long. She might be able to get some limited help from friends and family. As if I might be able to influence the outcome, she swore her husband couldn’t have been responsible. I gave her my most honest, yet optimistic, take: he wasn’t going to walk on his charges, but through what our defense team (I thought team, rather than “I” would sound more impressive to her) had discovered about the supposed government witnesses, we had weakened their case considerably. I told her I thought he would do a few years, probably fewer than five, in prison. As I left, I placed a U.S. $100 bill under my place mat when she wasn’t looking. This time it was my money.

Based on what I’d experienced so far in Colombia, I had no reason to think I’d have anything close to fun in the time I had remaining. That feeling evaporated during my final interview. “Interview” is putting it a bit formally. My meeting was with Captain Raul, a lifelong friend and former shipmate of my client. Raul had been the skipper of a fishing boat my client had worked on for years. Having left fishing long ago, he had just retired from the merchant marine. We were scheduled to meet at the Bar America close to downtown Cartagena.

It’s not hard to pick out a lifelong mariner. He had weathered, brown skin and blue eyes that pierced through the permanent tan. I spoke to him tentatively at first. He greeted me with open arms and a big hug. I knew he appreciated the lengths to which I was going to help his old friend, as well as the dangers involved. We began our interview with a round of Aguila beer, followed closely by a second and a third. He introduced me to his accountant, his lawyer and his favorite prostitute, all seated nearby. Who wouldn’t like this guy?

Raul clearly felt safe in this bar. He made no attempt to quiet his voice when he spoke of the narcotraficantes and how they held mariners hostage. It was common for crew members to have their lives, but more often, their families’ lives, threatened if they didn’t cooperate with the smuggling. I felt that Raul knew exactly what had happened with my client. I gathered confidence and spoke about what my investigation had shown so far. Perhaps it wasn’t wise to do so, but I’d kept a lot of information and fear bottled up, and it felt good to talk. Several more Aguilas helped. We made a date to have dinner together at my hotel that night. The rest of the day was mine to explore the city.

I made my way to the waterfront and strolled by the brightly-painted banana and cargo boats. Ancient diesels sputtered, relic outboards popped and sent clouds of blue exhaust into the air. Workers and crews were all black, incongruous with the Spanish I heard flying from their mouths. The taxi driver who took me back to Cali from Buenaventura had explained that there was a high population of blacks in the country, especially on the western side, remnants of Spanish slavery. So it wasn’t just us.

A tour boat was boarding passengers by a sign advertising trips across the bay to the old fort of San Jose de Bocachica. I hopped on board. Cartagena is popular as a tourist resort for wealthy South Americans, but especially so for Europeans. Some of its history is dark, such as where I was headed on this little voyage. The Spanish were plagued by seaborne marauders, notably Sir Francis Drake, going after their silver and gold.

There are two entrances to the bay, one wide, the other narrow: Bocagrande and Bocachica. At Bocachica, the Spaniards built two forts, one large, one small, on either side of the entrance. The small one served as the anchor point for a huge chain that was stretched across the opening. The large one served as the mechanical point where the chain was drawn tight and shallow to the surface to prevent raiding ships from entering the bay on that side. The chain was wrapped around a windlass, like an anchor windlass on a ship. These days, windlasses are operated either electrically, or by hydraulic pumps. In the early days of Cartagena, slaves did the heavy work.

On the island housing the large fort, a tour guide escorted our small group, giving special emphasis to the moats within the walls. These seawater-filled moats, he explained, contained sharks into which the less motivated slaves were thrown for not performing adequately on the windlass.

After the tour I drifted from the fort to the beach on the east side of the island. Hungry as always, I stopped at a tiny kitchen shaded by a shaky palm frond roof. The menu of the day, and probably most days, was fish heads, rice and fried plantains. I spent more of my tax dollars and had a great meal, basking in my newfound safety.

As the afternoon grew old and the owners of the beach restaurant began to douse its fire, I stepped aboard the small boat to return to Cartagena. There are rare times when my heart soars and this was one of them. Everything coalesced into that very moment. I loved everyone, life was worth living, danger was held at bay. I had survived Bogota, Cali and Buenaventura. What lay ahead was something I’d deal with later.

The captain met me at the hotel grill at 7 PM, promptly enough to surprise me. Outside the main restaurant, the parrillada (grill) was shrouded in the comfort of palms forming a semi-transparent canopy to the open Caribbean sky. Breaking through an uneasy greeting, I told him the meal was, in its entirety, on the tab of the U.S. government. He visibly relaxed. The business of the earlier afternoon was put aside. He understood that I had already gone to lengths few would have to help his former shipmate. This was a time to drink, eat, drink, talk, drink. He introduced me to a Chilean red wine that still courses through my memory, and down my throat: Santa Rita 120.

Raul talked of his ocean-going exploits, we clasped arms at the mutual understanding of the undersold values of romanticism, and promised to keep each other fondly in our respective memories. And, to his great relief, I really did pay the bill.

I drunkenly made my way to the beach and stumbled through a magical portal. The sands were filled with beach chairs, groups of which were spaced no more than 50 yards apart. They were arranged in semicircular patterns, looking out on the now dark Caribbean Sea. Close to the ocean’s edge, facing the chairs of each group, was a live band playing joyous rhythms to the night and its denizens. None of the people listening and dancing seemed bothered by the competing rhythms on either side. I sat for awhile on the sand, lonely, happy, scared and immensely content, soaking it all in. On the way back to the hotel, I bought a t-shirt with a glittery toucan on the front for Kathy, the attorney. I doubted she’d like it, but I was drunk and didn’t really care what she thought.

I woke the next morning in my hotel bed with the disorientation and dread that haunted me through the years of my deep cover drug work. Where was I? Was I in immediate danger? My answer back then came when I swept my hand under the bed. If I touched my sawed-off 12 gauge shotgun, I was on assignment. If not, most likely at home. My answer in Cartagena was confusing and took a minute to digest: No shotgun, so I must be at home, but this sure doesn’t look like home.

My last night in Bogota, after my flight from Cartagena, was luxurious. Not wanting to press my luck, I again ordered a room service dinner. I raided the honor bar with a will and am sure it cost the government hundreds. Just as I was ready to leave my room, the American-oriented radio station played “I Know You’re Out There Somewhere” by the Moody Blues. I wasn’t going home to that special person I had all but given up hope of finding, but at least I was going home. I resolved to trust the future to help me meet that woman.

As I cleared customs at the airport the next morning, I felt an assertive tap on my shoulder. One plainclothes guy with two machine gun-toting uniforms escorted me to a nearby bathroom and with no explanation, searched me. Finding nothing and saying nothing, they left. [The reality of this last contact was much more hair-raising, but would divulge details I can’t bring up in order to protect my identity.]

As the Avianca plane landed many hours later at LAX, the sole, boisterous, ecstatic applause was mine.

After delivering my reports and suggestions, along with the toucan shirt and a bag of Colombian coffee to the unappreciative Kathy Klager (she looked at the coffee with disdain, saying “But this is what they drink”), I headed to the Pierce County jail to see Alfonso. I gave him the best wishes of his family and his old friend Captain Raul. I then laid the case and my investigation out for him in detail. I doubted that a trial would take place and wanted to plant as much information in him as I could, so that he would be fully informed when Klager spoke to him prior to entering his plea. Protocol normally would have prevented me from doing this, but his attorney was such an unfeeling block of ice that I felt that if he didn’t have all the information, she would sell him out, collect her fee and he’d be no wiser. But the length of his sentence most likely hung in the balance, and he deserved better.

I saw Alfonso again after his guilty plea had been entered and his sentence passed. He would serve three years in a federal prison. This would certainly be hard for him and his young family, but much better than the 20 years the AUSA had wanted. Both Alfonso and the captain had been approached by one of Gomez’ men and were told that cocaine was to be loaded by longshoremen onto the ship. They were to say nothing, or their immediate and extended families would be killed. There are degrees of guilt in Colombia. I was proud to have helped Alfonso, my client.


I hope you enjoyed this!


Are federal trial judges who write bluntly in law reviews, blogs, etc., “flashers” who expose too much of themselves?

If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity?

Photo credit: sylvar. "The Flasher, with trenchcoat closed" per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

Photo credit: sylvar. “The Flasher, with trenchcoat closed” per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.


I have reason to think that this blog may be part of a piece sometime in the future by a respected legal news outlet. I would guess that the article may be critical. If that occurs, I welcome both the attention and the scrutiny. And that brings me to my dear friend, Judge Mark Bennett, a truly wonderful person, a fantastic, but very opinionated, writer of law review articles and a great trial judge.

Mark was recently the subject of an article written by the estimable Alison Frankel, entitled When judges say too much, Reuters (November 18, 2014). The article deals with Mark’s decision not to recuse himself in a products liability case involving a smoker.

Judge Bennett

Judge Bennett

In part, Ms. Frankel wrote:

This homily was sparked by a recusal opinion issued Monday by U.S. District Judge Mark Bennett of Sioux City, Iowa. Bennett is overseeing a former smoker’s suit against R.J. Reynolds and Philip Morris as a visiting judge in Jacksonville, Florida. On Oct. 31, Philip Morris’ lawyers at Shook Hardy & Bacon and Arnold & Porter asked the judge to take himself off the case because of his 2013 article in Voir Dire, a magazine put out by the American Board of Trial Advocates.

Bennett’s article, “Obituary: The American Trial Lawyer, Born 1641-Died 20??,” lauded a lost breed of lawyers who are “perhaps more responsible for our enduring freedoms and the enforcement of our nation’s laws than any other,” he wrote. Through the good work of trial lawyers, he wrote, “American products, from airplanes to scalding coffee, pharmaceutical drugs and scores of others, are safer and kill and maim far fewer Americans.” One of the trial bar’s accomplishments, according to the judge, was that “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.”

She concluded her piece this way:

Considering the case law, I doubt Philip Morris can force Judge Bennett off the case. The company’s recusal brief focused on judges’ roles in jury selection in these tobacco liability cases in Florida, so maybe Philip Morris just wanted to prod Bennett into being careful about fairness during voir dire. (Stanley Davis of Shook Hardy and Sean Laane of Arnold & Porter didn’t respond to email requests for comment.)

Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.

I told the judge in an email that I believed Philip Morris was justified in questioning his impartiality. He said (very politely) that the opinion speaks for itself and that it would be inappropriate for him to comment further on a case before him.

I urge you to read the entirety of Ms. Frankel’s piece and the judge’s written decision explaining why he would not recuse himself. What do I think?

First, Judge Bennett was clearly correct as a legal matter. He had no reason to recuse himself. Experienced federal trial judges don’t worry about recusal motions, they are frequently filed but seldom granted. Those are simple legal questions, easily answered as Mark’s clear opinion demonstrates. Moreover, most of the time, we have plenty of judges who can take a case from a colleague if recusal is warranted.

Second, Ms. Frankel makes a more important point that is very much worth remembering. When federal trial judges speak candidly in their extrajudicial writings we take risks. Ms. Frankel explains:

I . . . believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.

This is matter of balance. It is not an easy balance to strike. But, I know this: Given the present state of affairs in the federal judiciary, transparency is more important than the fear that faith in the system may erode if we express ourselves too clearly, too forcefully, and, occasionally, too bluntly in law reviews, blogs and the like.

There will be times when we falter. Indeed, Ms. Frankel fairly links to my ill-advised attempt at humor (On being a dirty old man and how young women lawyers dress) while making points I thought were worth making about the appearance of women trial lawyers in the courtroom. That admitted, judges like Mark Bennett do the public (and the bench and bar) a great service “when they get real.” Like the “flasher” pictured above, we can do so without significant harm to the federal judiciary so long as we remember to keep our trench coats closed.




Double Jeopardy In Alabama, a judge can override a jury that spares a murderer from the death penalty.

The title of this post is the title to a long article in The New Yorker. See here. A friend of this blog suggested that I read it, and I am enormously grateful for the suggestion. While it will take you some time, I strongly encourage you to read it as well.

paige-williams-2014-150x150The piece is wonderfully written. Indeed, and whether intended or not, it is the best example of legal realism I have read in a long time.

The author is Paige Williams, an associate professor at the Missouri School of Journalism. Among other accomplishments, Ms. Williams is the former editor of Nieman Storyboard, the online narrative journalism publication of the Nieman Foundation for Journalism at Harvard. She holds an MFA, in fiction, from Columbia University. Her narrative nonfiction book “The Dinosaur Artist,” based on a New Yorker story, will be published, by Hachette, in fall 2016.

I wish I could write like Ms. Williams. In fact, I would sell what little remains of my soul to acquire that talent.

As for the legal issues raised by the article, I will leave that to mostly to you. What I will say is that electing judges, and then allowing judges to impose the death penalty after juries have decided against it, hits my nostrils as a particularly toxic brew.

I am interested in your thoughts, particularly if you are from Alabama. I would love to hear your views on the legal issues and, of equal importance to me, the writing of Ms. Williams.


*The federal system allows me to use acquitted conduct to sentence someone, although I don’t remember ever doing so. That said, having been given life tenure, I have no incentive to curry favor with those who vote with their viscera rather than their prehistoric brains. Nor do I need to worry about the leftist Wobblies who, spouting utter nonsense, populate, and parade about, college towns like Lincoln.


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