Secrets of appellate advocacy

Dear Mr. Jones,

I am the attorney designated by this office to handle the appeal from your conviction of Unlawful Promotion of Unlawfulness with Intent to Act Unlawfully (Penal Law Q-666).  I  hope to start work on your appeal very soon.  In the meantime, I hope you are doing well.

Dear Mr.  Jones,

Thank you for your letter suggesting some issues to be raised in your appeal. I am sure you are entirely correct about what your trial lawyer looks like from behind, but unfortunately we are limited to matters appearing on the record.  I hope to start work on your appeal very soon. In the meantime, I hope you are doing well.

Dear Mr.  Jones,

Thank you for your letter and enclosures.  Unfortunately it is not permitted to attach things like that to the appellate brief.  Also, I do not think the judge meant to insult you or your religion. ”Unfit to proceed” is merely legal jargon for “long adjournment.” I hope to start work on your appeal very soon.  In the meantime, I hope you are doing well.

Dear Mr.  Jones,

Thank you for your letter, and I apologize for taking so long to answer.  As you are undoubtedly aware, your case raises a number of extremely complex issues of law which require a great deal of time to thoroughly research. Plus, I had to go on maternity leave after my dog had triplets. I hope to start work on your appeal very soon. In the meantime, I hope you are doing well.

Dear Mr. Jones,

Thank you for your letter informing me that you have been in solitary confinement for the last two years. I was wondering why I had not heard from you.  Mother and puppies are doing fine, thank you for asking. I hope to start work on your appeal very soon.  In the meantime, I hope you are doing well.

Dear Mr. Jones,

Thank you for your letter suggesting I should look into whether Unlawful Promotion of Unlawfulness with Intent to Act Unlawfully is unconstitutional. That is a very interesting idea, but please bear in mind that I am a highly experienced, trained appellate lawyer and you are a semiliterate nutcase who should not waste my valuable time with amateur speculation based on what you hear from other inmates who are probably even nuttier than you. In the meantime I hope you are doing well.

Dear Mr. Jones,

Thank you for your letter enclosing a copy of the U.S. Supreme Court decision unanimously holding that Unlawful Promotion of Unlawfulness with Intent to Act Unlawfully is unconstitutional.  Who knew?  In the meantime, I hope you are doing well.

Dear Mr.  Jones,

I am happy to inform you that your conviction for Unlawful Promotion of Unlawfulness with Intent to Act Unlawfully has been reversed.  That is entirely due to my clever appellate strategy of making sure that your appeal did not become final before the Supreme Court case was decided.  I am sorry that it does not affect the sentence you are serving on your 1996 case. In the meantime, I hope you are doing well.

The court interpreter knows the witness? No problem.

One of the many contradictions in the American Way of Life is that although every cabdriver speaks 3 languages (though not necessarily English),  the Captains of the Bench tend to be monolingual (unless you count the patois of judicial decisionspeak as a second language).

A few weeks ago, we watched a Court of Appeals oral argument in a case where the court interpreter had told the trial judge that he knew the complainant and her husband. And it wasn’t just some passing howyadoin’ acquaintance. The interpreter had past “business dealings” with the husband who, as even the judges grasped, was the neighborhood loan shark.  The defendant objected to using this interpreter for the complainant’s testimony.

You’d think the trial judge would just send out for a different interpreter who didn’t have to worry about getting his kneecaps busted.  Instead, the judge  reasoned that the defendant’s friends and relations (presumably qualified interpreters all) were present in the courtroom and would have “hurdled the well” if they detected any semantic hanky-panky. (Translation: would have jumped over that low partition between the audience and the sanctum sanctorum guarded by platoons of hefty court officers).

The Albany beaks were baffled at the defendant’s beef.  Judge Write was positively sneering.  What’s the problem? they asked.  The interpreter wasn’t involved in the case! He was under oath!   All the interpreter does is repeat in English what the witness says.

The only judge who seemed to get that foreign languages aren’t just English in translation was the Hispanic lady, and sure enough, she dissented from the resulting decision today in People v. Thomas Lee (NYCA 2013).  The Court has created an “irrebuttable presumption in favor of official court interpreters under oath,” she said, and moreover, yo, a defendant has no obligation to make his friends and relations go hurdling over wells.

We were reminded of the Sherlock Holmes story The Greek Interpreter, which we won’t spoil if you haven’t read it, but it’s on all fours with Mr. Lee’s case.

Scene: Typical Manhattan courtroom.

Judge: Are we ready to proceed?

Court Officer: As soon as they clear away the bodies of the defendant’s friends and relations.

Judge: You shouldn’t have shot them, Bruce.  After all, I suggested that they feel free to hurdle over the well whenever they disagreed with the translation of the witness’s testimony. (To witness) Please continue, madam.

Witness: Running dog scumbag not repay money.  Had to to teach him lesson.

Interpreter: The defendant was a business associate of ours with whom we had financial transactions in progress.  We were also contributing to his education.

Witness:  Plan was to lure him to our house, give him jewel box with poisonous spring inside,  like in Sherlock Holmes story. Open up box and sproiing! Infected with incurable exotic disease. Hahahahahahah.

Interpreter: We invited him to a literary evening at our home.

Witness: Stupid husband gave him wrong jewel box.  Was collection of rubies pried off temple idols with curses on them.  Didn’t notice screw-up until after son of hyena went home in cab with Klingon-Esperanto speaking driver.

Interpreter: The defendant, whose mother we know, absconded with several thousand dollars worth of property.

Spectator: (hurdling over well) Cease this travesty of mistranslation at once!

Interpreter: How dare you! I’ve taken an oath!

Spectator: (breaking interpreter’s kneecaps) Klaatu barada nikto!

Court officers shoot everybody .

Committing felony marriage

There’s an old joke that marriage isn’t a word but a sentence, but it’s not often taken literally. Recently a colleague was representing two co-defendants who agreed to plead guilty in exchange for a sentence of 8 years in prison and 5 years of post-release supervision. They asked if the judge could marry them while he was at it.

Naturally we’re concerned that the marriage be knowing and voluntary, so we’ve written some Pattern Wedding Instructions for the judge:

Judge: (to groom) Dost thou understand that by taking this woman to be thy lawful wedded wife, thou givest up thy right to mess around with other women, to drink milk straight from the carton, and to leave thy dirty socks on the coffee table?

Groom: I do.

Judge: (to bride) Dost thou understand that by taking this man to be thy lawful wedded husband, thou relinquishest thy right to – thy right to  - whatever.  I’m not bound to a rigid catchism.

Bride: (blushing) I do.

Judge: Do yous waive your right to appeal?

Bride & Groom: We do.

Whereupon the couple, assisted by DOCCS Officers, shall exchange handcuffs.

Judge: What the Department of Corrections and Community Supervision hath joined together, let no man put asunder. I now pronounce thee 8 years in prison and 5 years of post-release supervision.  Inasmuch as felons are not permitted to associate, sir, you may kiss the bride in 13 years.

Courts are shocked, shocked, to learn of false confessions

A recent study by the Governor’s Task Force on Justice and Chopped Liver concluded that if you took all the decisions where courts twisted themselves into pretzels to uphold the voluntariness of confessions elicited by police ruses and deceptions and made them into paper mache we would have 3 trillion planets the size of Earth.

We don’t get it. How is the waiver of the constitutional right against self-incrimination voluntary if it’s induced by lies and false promises by the State?  What if everybody did that?

Scene: Judge Blow’s courtroom

Judge: (To defendant)  Now that you’ve pled guilty, I sentence you to life in prison.

Defense counsel: But Judge, you said he’d get a drug treatment program!

Judge: OK, so I lied.  It was the only way I could get a guilty plea out of him.

Defense counsel: But it’s not voluntary if he was tricked into it!

Judge: Nonsense.  My little ruse wasn’t so fundamentally unfair as to offend due process.  Plus, it wouldn’t make an innocent person plead guilty.

Defendant: Why not?

Judge: Because I said so. That’s life without parole, by the way.

 

The NYPD Patrol Guide to the Constitution

Recently Judge Android and a trio of First Department Judgettes declared that it was A-OK for the cops to Taser a man who was violently objecting to their “trying to help him” after his girlfriend told them he’d had a seizure, by handcuffing him behind his back, hog-tying him to a stretcher, and carting him out of his apartment to the hospital.  Obviously an “emotionally disturbed” nutcase who thought his health was his own business.  Pacheco v. City of NY and P.O. Lopez.  

According to the First Department, Tasering people who are so emotionally disturbed as to resist medical treatment alla polizia is a constitutionally reasonable use of force. Why? Because the NYPD Patrol Guide says so.

Courts all over the country are smiting their collective foreheads. Why didn’t we think of that? Instead of all those time-wasting suppression hearings and civil rights trials, just ask the police what conduct is constitutionally acceptable.  After all, if correcting judicial errors is entirely up to the judiciary, why shouldn’t the same apply to the cops?

Thanks and a tip o’ the hat to civil rights blogger-squawker Andrew Stoll, Esq.

California squawkin’

Check out the lighter side of California’s three-strikes law in this hilarious post, “Transcript of His Honor’s Handwashing Liturgy,” by California public defender blogger Norm de Guerre.  Our favorite line from His Honor:  ”Make the plea now so that the Accused, now Convicted’s appellate counsel may brief later what I shall now ignore.”

Demolishing the 4th Amendment

In response to decades of complaints that the Fourth Amendment is a hazardous eyesore that lowers property values, hinders the nation’s competitiveness in the global market and endangers little children, a coalition of NY courts and law enforcement groups announced its final demolition today.

“I’ve always said cops should be allowed to do their jobs without interference from the courts,” said Judge Smith of the Court of Appeals, quoting his recent dissent in People v. Garcia.

Police Commissioner Pogo said he “couldn’t agree more,” adding that “cops are the best judges of what their job is.”

Mayor Bedbug greeted the move warmly.  ”The state was wasting billions of dollars in needless litigation over whether this or that search or seizure was reasonable,” he told a cheering audience at the High School of Getting and Spending. “Obviously, every search and seizure is reasonable if conducted by the NYPD.  If it weren’t reasonable, they wouldn’t be doing it.”

He announced plans underway to replace the abandoned Fourth Amendment with more bicycle paths and secure treatment centers for soft drink addicts.

But a spokeswoman from the NY Landmark Society expressed opposition to the demolition, calling for a Fourth Amendment museum, or at least a commemorative plaque.