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Case of cussing judge languishes

8th Circuit has yet to rule on '07 dismissal of $20 million case

Heather Cole//February 16, 2009//

Case of cussing judge languishes

8th Circuit has yet to rule on '07 dismissal of $20 million case

Heather Cole//February 16, 2009//

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U.S. Senior Judge Dean Whipple turns his chair to face the witness stand and defendant Sara Lewis-Goetz, a petite young woman with long brown hair streaked with blond.

The white-mustached judge leads Lewis-Goetz through the legal implications of changing her plea on a methamphetamine distribution charge to guilty under an agreement with prosecutors.

Lewis-Goetz is giving up the right to confront her accusers at trial. She is giving up the right to challenge police searches, Whipple says. He continues in this vein for at least 15 minutes, punctuating each point with “You understand that?”

Lewis-Goetz, who has been biting her lip, nods and quietly says, “Yes,” each time.

“Knowing all that, you still wish to plead guilty?” Whipple asks, but the court reporter asks for a halt to change her tape.

“I’m getting too long-winded,” Whipple says.

Whipple’s demeanor at the early February change-of-plea hearing stands in contrast to his remarks as recorded on a transcript of a hearing in a civil case against Shell Oil Co. more than two years ago. His remarks at that hearing are part of an appeal of the case heard a year ago that has yet to be decided. 

In a December 2006 discovery hearing, Whipple sprinkled six epithets ranging from “God damn” to “Jesus Christ” in an exchange with plaintiffs’ attorney Frederick Starrett, of Lathrop & Gage.

In a brief, lawyers for plaintiff Alan Barazi, the former operator of 29 Kansas City Shell stations, alleged Whipple also threw a gavel. Whipple denied that in an order, saying he didn’t even keep a gavel at the bench.

The exchange followed an hour-long presentation by defense attorney David Harris, of Greensfelder, Hemker & Gale, urging Whipple to dismiss the case over discovery problems.

At the hearing, Whipple cut off Starrett’s explanation of why 58 contested documents hadn’t been given to the defense.

“They tell you to produce them, and you still God damn don’t produce them. Now, what the hell do you not understand? You must produce them. Jesus Christ, I don’t want any more ducking and weaving from you on those 58 documents,” Whipple said.

Whipple dismissed the $20 million case with prejudice, meaning it couldn’t be brought to court again. Now it’s in limbo.

It’s taken longer than normal for a decision to be reached by the 8th U.S. Circuit Court of Appeals. In 2008, the median amount of time between a notice of appeal and disposition of a case in the circuit was 11.4 months, according to statistics from the Administrative Office of the U.S. Courts. It’s been 20 months since the notice of appeal was filed in the Shell case. 

Questions to be addressed by the panel consisting of Judges Michael Melloy, Raymond Gruender and Bobby E. Shepherd include whether Whipple should be removed from the case if it’s remanded. Lawyers for Barazi argued he couldn’t get a fair hearing from Whipple.

Starrett said he didn’t know the reason for the delay.

“I haven’t heard anything,” Starrett said.

Whipple said through a woman answering the phone at his office that he didn’t think it was appropriate or ethical to comment on an ongoing case.

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