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Bench Pressed

The logjam in Denver's federal district court is one of the worst in the country. Blame Congress, Timothy McVeigh, greedy lawyers -- and judges who don't have time to judge.

Congress has been quick to add FBI and DEA agents and prosecutors to the payroll to enforce the crime-busting legislation--but not judges to try the cases. "The top of the funnel continues to expand, but the neck doesn't change," says Dick Weatherbee, spokesman for the U.S. Attorney's Office in Denver. "Congress keeps adding laws and resources, but the judiciary is on their own."

Judge Kane stopped taking criminal cases when he moved to senior status in 1988. An outspoken critic of the drug war, he contends that sentencing-reform legislation has not only robbed judges of any discretion over plea bargains but has buried them in busywork as they get dragged into the routine processing of hand-to-hand drug-sale cases that never go to trial.

"It's more bureaucracy and less thought," Kane says. "Instead of the bazaar being in the front halls of the court for everyone to see, it's now in the back offices of the U.S. Attorney's Office or the law-enforcement officer's squad car. They use mandatory sentences in the federal court as a threat to make people become informants. The judges don't have any control over the justice of the matter; they're just there to make sure that the sentencing guidelines are followed, and that takes an enormous amount of time."

As a senior judge, Kane has tried to free up his colleagues somewhat by taking on protracted, highly complex civil cases. Such cases can result in ten-week trials and multi-million-dollar judgments or bruising, seemingly endless wrangles over discovery--such as the contentious battle between the Church of Scientology International and a local anti-cult group, FACTNet ["Nightmare on the Net," March 6, 1997], now in its fourth year of litigation. Colorado has more than its fair share of such cases, Kane says, from prisoners' civil-rights cases (aggravated by the opening of the federal complex in Florence and a proliferation of private prisons) to high-tech patent disputes to long-running environmental-cleanup sagas.

In its national efficiency rankings, the federal judiciary is supposed to take into account the complexity of a given district's cases, using a formula involving "weighted" filings--for example, a securities case would be worth more points than a student-loan default. But Kane believes that Colorado, by virtue of its size, is shortchanged by the rankings.

"These are done by people who don't actually work in the trenches," he says. "You can have a securities case that's going to take five minutes--some nut files something and you toss it out the same day. Or you can have enough lawyers there to make a Pancho Villa movie. But Washington looks at the number of actions per authorized judgeship without making any allowance for how many of those judgeships are actually filled.

"There's a kind of synergism at work. The more judges you're short, the more work goes to other judges, the more they fall behind. And the smaller the district, the worse it is. Here, when you're one judge short, that's 16 percent."

As of January, Kane had elected to go back "on the draw"--receiving a random assignment of civil cases in addition to supervising the appeals the district receives from bankruptcy court and other federal agencies, such as the Social Security Administration. He doesn't know how much of a dent he can make; the combination of being shorthanded and grappling with a crush of criminal cases as well as lengthy civil litigation makes Colorado's situation unusual, he says. And there's another wrinkle to the dilemma that judges rarely talk about.

"Part of a judge's problem is what kind of work habits he or she has," Kane notes. "You have to look at what comes in every morning and be on top of it from the beginning or you get overwhelmed. Then you get tied up in a big case, and that hurts you. And when you go on vacation, the inflow does not stop. I also think a judge's work is to be deciding cases and not be involved in other activities. There's tremendous temptation to get involved in administrative and bureaucratic details. I avoid that at all costs."

Administrative duties have multiplied in the judiciary, just as in every other branch of government. Judge Nottingham is currently serving on a national judicial committee on automation and technology, while other district judges find their calendars cluttered with law conferences and extrajudicial assignments. Judge Matsch says the growing time-management problem is formidable but not necessarily unsolvable.

"I'm sure every one of us can work smarter," he says. "I don't think we can work harder, but we need to find better individual techniques to help us face the problem. More oral rulings, perhaps. We've papered over this process too much."

All Philip Fisher wants is justice for his dog Chipper. But justice can be a soul-draining process in Colorado's federal courts, particularly when you're one man battling teams of lawyers representing a powerful array of media conglomerates.

"I think I'm being screwed around, but I can't prove it," Fisher says. "These people are all billionaires. If I get a fair shake, I'll be surprised."

A Golden portrait artist and cartoonist who once worked on the "Brenda Starr" comic strip, Fisher is also the creator of a comical canine detective named Chipper. Although the 1971 cartoon strip was never published, Fisher claims that United Features Syndicate had access to his work and that Charles M. Schulz of "Peanuts" fame later borrowed from it to turn Snoopy into a sleuthing beagle. After years of fruitless protests to attorneys for various corporations, in 1996 Fisher filed a federal copyright-infringement suit against United Features, the Rocky Mountain News, TCI (which aired a "Peanuts" special featuring the snooping Snoopy), Schulz and scores of other alleged conspirators.

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