Appellate briefs are junk mail

You may have already won

How silly to complain that the Appellate Division doesn’t read our briefs!  You don’t read your junk mail, why should they read theirs?

When you toss your junk mail into the trash without opening it, it’s not because it’s missing a Table of Authorities or the margins aren’t regulation size.  It’s because you already know you don’t want whatever it is they’re selling. You already have a cemetery plot.  You don’t need a canoe. You’re never going to read 50 issues of “The Economist,” even at six cents apiece.

Appellate courts already know they don’t want your product.  Who needs to hear about problems? When they say “appellate review” they mean sitting in the grandstand waving to the parade.

But junk mail (or “direct mailing” as they say in the biz) must be effective or it wouldn’t be a billion-dollar business.  All we need is a makeover.

Scene: Getting & Spending Ad Agency conference room. The only decor is a large banner reading, “They only think they don’t want it.”

Harry Hotshit:  Guys, I’m just thinking out loud here, but how about putting on the cover: OPEN THIS BRIEF TO RECEIVE A FREE GIFT!

Tiffany Sellwell: They’ll never go for such blatant bribery.   What about OPEN THIS BRIEF AND LOSE 10 POUNDS INSTANTLY!!!

Grant Gogetter:  That sounds like a threat.  Why not disguise the brief to look like a check or a summons, with nothing but a mysterious P.O. box in Oklahoma to show where it’s from. That’ll get them to open it up and who knows, maybe even read a few pages.

Harry Hotshit: Guys, I’ve got it! Enclose a calendar with photos of the client in his or her natural habitat. If World Wildlife can make a rhinoceros look adorable, we can do the same for -

Tiffany Sellwell: And T-shirts and tote bags saying, “I’d Rather Be Affirming”!

Grant Gogetter: And boxer shorts. Get it? briefs?

All concur.


Posted in Criminal Defense Appeals, Humor, Law & Parody, Satirical cartoons | Tagged , , | 1 Comment

Sado-masochism in federal court


Ms. Gavel colorUnlike state courts, which store their case files in decaying cardboard boxes randomly scattered around the floor of the Clerk’s Office, federal court has all its files chronologically organized and publicly available on a national website called PACER.

But such robot-like efficiency comes at a high psychological cost. Newcomers to PACER are directed to an animated film featuring two characters named Mr. Sound Block and Ms. Gavel (no first name supplied).  Ms. Gavel is a tall, slinky dominatrix with a voracious-looking mouth, wearing a tight skirt and lethal red shoes. Mr. Block is barefoot and wears nothing but a pair of white gloves.  Ms. Gavel kicks off the film by having Mr. Block lie on his back and giving him a vicious, utterly unprovoked head butt, causing him substantial pain as evidenced by a circle of little twittering birds flying around.

Mr. B., who clearly suffers from learned helplessness and battered sound block syndrome, gets back on his feet without protest. Ms. Gavel then chatters about how PACER is run by anonymous creatures “collecting data in the wee hours of the night.”

There’s even a sequel, where Ms. Gavel, not content with using her head as a dangerous instrument, comes armed with a bow and arrow supplied by an offstage leopard.  Once again, Mr. Block lies down and takes it in the solar plexus.

This blatant appeal to prurient interest in gavels and sound blocks is yet another conspiracy by the federal government to bilk the public of its hard-earned dollars.  Because needless to say, PACER isn’t free. You’re lured into downloading a page or two at ten cents a page, and the next thing you know, you’ve run up a bill for $27.50.  It’s only a matter of time before you’re filing for bankruptcy – in federal court, of course.

PS For more information about to manage your federal case, see “I’m Going to Federal Court with Mark and Julie.”




Posted in Humor, Law & Parody, Satirical cartoons | Tagged , | 6 Comments

Judge Bludgeon picks a jury

Cat and mice 

Welcome to my courtroom, folks, I’m Judge Curmudgeon Bludgeon and I’ll be your judge for today.  Today’s special is a petit larceny served up as a robbery.  Remember, folks, just because that lawyered-up defendant was arrested by New York’s Finest and prosecuted by the District Attorney’s Office – that bulwark of public morals and safety – that doesn’t mean a darn thing.  He can just sit there like a bump on a log eating up your tax dollars and burdening the Criminal Justice System, and you have to presume he’s innocent.

And since every criminal, no matter how depraved, has the right to an unbiased jury, I need to find out from each of you whether you’re in a sexual relationship, whether you have the money to own your home, whether you read terrorist newspapers,  how many children you have, and why. I’ll be asking the ages of all your children and pets and what they do for a living. And when I ask whether you have family members who work in the Criminal Justice System, don’t omit to tell us about your cousin in the Girl Scouts or your uncle who used to be a traffic warden in Ulan Bator.   We’ll start with you, Miz Jones – am I pronouncing your name correctly?

Miz Jones: I live in a shoe and I have so many children I don’t know what to do.

Judge: Do you rent or own the shoe, Miz Jones?

Cut to two weeks later:

Judge: And now, folks,  Assistant District Attorney Tightskirt who represents the People of the State of New York will ask you some questions. Go ahead, dear.

ADA Tightskirt : Thank you, Bludge.  I mean, Judge. Is there anybody here who thinks the People have to have more than one witness? No? Anyone who thinks we have to present any witnesses? No? Anybody who thinks this is like TV where the prosecution always has DNA? Nobody? What about no evidence? Anybody who can’t give the People a fair trial just because we have no evidence? Mr. Flounder?

Mr. Flounder: My religious beliefs forbid me to sit in judgment without no evidence.

ADA Tightskirt: I appreciate your flounder, Mr. Candor. I mean I appreciate your candor -

Judge: I’ll be instructing you on the law. For now, all you need to know is that anything proffered by the People is evidence.

ADA Tightskirt:  Ladies and gentlemen, this case is about the robbery of a hard-working man who came to this country with nothing but a million dollars and a dream.  He opened up a candy store for America’s children -

Defense counsel: Objection, this is voir dire, not summation.

Judge:  Overruled. (to ADA) As you were saying, before you were interrupted?

ADA Tightskirt: You’ll hear how this defendant cleverly plotted his sinister move, carefully calculating which candy bar to take.   Being no stranger to criminal activity, he selected a package of M&M’s -

Defense counsel: Objection!

Judge: Sustained. (to jury) Folks, you’re not to consider the defendant’s lengthy criminal record.  Remember, he’s innocent until you prove him guilty.

ADA Tightskirt: And you know what? The victim was determined to protect himself, his family and his business by punching the defendant in the head several times, causing lacerations to his own knuckles.  As Judge Bludgeon will instruct you,  theft combined with inflicting physical injury constitutes the felony of Predatory Aggravated Terrorist Gang Assault Robbery.  Now, is there anyone who thinks that just because it’s only a package of M&M’s, we shouldn’t be prosecuting this case?

Miz Halibut: Were they assorted M&M’s or plain?

Judge: You’re not to speculate about value of the stolen property. The question is whether you can put aside your biases and prejudices and find the defendant guilty.

Mr.  Crab: No problem.

ADA Tightskirt: (conspicuously scratching out Miz Halibut’s name from her notes). No further questions.




Posted in Criminal law, Humor, Law & Parody, Satirical cartoons | Tagged | 1 Comment

Have you been “friended” by DA Vandal?

Thumbs downLast January the Manhattan DA’s Office indicted 106 people including 72 NYPD cops, 8 firefighters and 5 Corrections Officers for bilking Social Security out of $400 million in phony disability claims. The scheme was masterminded by a former senior Nassau County ADA who took kickbacks of $28,000 a head for every successful claim.  The applicants were coached on how to fake PTSD symptoms to show they were incapable of even leaving the house, let alone holding down a job. Unfortunately, the coaches forgot to tell their Disability-collecting clients not to go out and get jobs as helicopter pilots, martial arts instructors and landscapers and not to post photos of themselves water ski-ing, motorcycling and catching gigantic fish.

DA Vandal did some fishing of his own, getting what amounted to a general search warrant from a compliant Manhattan judge for unrestricted rummaging into 381 Facebook accounts.  In vain, Facebook protested the unconstitutionality of these unparticularized warrants, as well as the gag order. Facebook’s appeal to AD1 has just been unsealed (see below).  We await the decision, as the court reporters say, with baited breath.

Considering how eyeglazingly boring Facebook communications are if you don’t know the parties, we wondered who would actually read everything demanded by the warrants, which included every share, note, timeline posting to and from every target account,  “friend” listing (including deleted or removed friends), networks, past and future event listings, videos, photos, lists of all other users registered in any group, private messages and the date, time and content of all chats to and from 381 people for the entire span of their Facebook accounts. We obtained the secret diary of ADA Winterbottom, excerpted here:

Day 1: Summoned to Bureau Chief’s office and informed that The Leader has entrusted me with top secret cyber investigation. About time, after 34 years of filing trial exhibits. Will be issued larger cubicle and brand new photo of The Leader.  Mother will be so pleased!

Day 2: Somewhat daunted at being told to prepare 381 search warrant applications in half an hour.  Fortunately discovered I could make them identical except for names of the targets. Instructed that saying “ongoing investigation” is perfectly adequate substitute for particularity.  The Leader makes even the most difficult task seem easy!

Day 3:  As fully anticipated, no problem getting warrants signed.  Judge understands we can’t know what we want until we see what’s there.  Facebook argues it’s just like seizing everything in someone’s home.  And their point is?? 

Day 12: Assigned to read entire file of 381 Facebook accounts.  Advised that messages utilize code words to disguise criminal activity.

Day 15: Have realized that reading every chat, share, note, timeline posting to and from every target account,  friend listing including deleted or removed friends, networks,  past and future event listings, videos, photos, lists of all other users registered in any group, private messages and the date, time and content of all chats. . . is a lot of work.

Day 18:  Texting code apparently consists of writing first letters of words, leaving receiver to guess what words are.  Remember something like this in “Anna Karenina.”

Day 20: How much more can I take of  thousands of pages of messages saying things like U R 2G2BT 88 4EAE?  Not to mention half a million photos of the same baby. Working 12-hour days, 7 days a week, haven’t even finished Account #1, with 380 more to go. IMHO TTLY TMI!

Day 30: Have friended all target users. If you can’t beat them, join them (IYCBTJT).

Day 30:  Texted The Leader, “OMG I’ve got PTSD.” LOL all the way to the bank to collect SSSS. BCNU.





Posted in Civil Liberties, Criminal Defense Appeals, Criminal law, First Amendment, Humor, Law & Parody | Tagged , , | 5 Comments


Fox and chicken

In a memo exclusively leaked to Appellate Squawk, the National Junta of District Attorneys has directed that that every local DA’s office start a Wrongful Convictions Unit.

Opposition from the rank and file was swift and vociferous. It was as if the Catholic Church told every parish to have a Papal Fallibility Unit.

“‘Wrongful conviction’ is an absurd contradiction in terms,” sputtered DA Honey Hassle in a speech to the Sycophant Bar Association. “Obviously the scumbags we prosecute are guilty or we wouldn’t be prosecuting them. To be sure, they might not be literally guilty of what they were indicted for, but it’s reasonably inferable that they did something wrong to get convicted. Plus, their convictions were affirmed after the highly rigorous scrutiny for which the Appellate Division is known for giving to criminal cases.”

This hurt the Junta’s feelings. They responded with a set of explanatory FAQ’s.

Q.  Why should a DA’s Office have a “Wrongful Conviction Unit?”

A.  By leaving so-called exonerations to defense lawyers, we DA’s are missing out on valuable opportunities for publicity and, more to the point, funding. What legislator would vote against appropriating a few mil to a DA’s Office to exonerate the innocent? And if we end up never exonerating anybody, it simply means nobody’s innocent.

Q.  But doesn’t “Wrongful Conviction” suggest that we did something wrong?

A.  Many offices have elected to call it something else, such as, “Thanks to Our Tireless Efforts, We Discovered the Other Perpetrator,” or “Advances in Forensic Science Such as the Pasteurization of Milk Have Enabled Closer Scrutiny of Past Convictions.”

Q.  Isn’t it embarrassing to admit that we prosecuted an innocent person?

A. Not really, so long as you wait 20 or 30 years before doing anything. By that time all the prosecutors involved will either be dead or have become judges.

Q. What’s in it for us? Why not let sleeping dogs lie? Or rot in prison, as the case may be?

A. The political hay can’t be overestimated, especially if the conviction was under a previous DA. And when an innocent person is exonerated after 20 years in prison, it gives the public confidence that the system works.

Q. Will admitting past mistakes have any effect on how we do things in the future? Will interrogations be videotaped? Will lineups be administered by a cop who doesn’t know which one is the suspect? Will we have to disclose evidence at a time when the defense can use it?

A. What a ridiculous idea! We can’t exonerate people if we don’t convict them first!






Posted in Criminal law, Humor, Law, Law & Parody, Satirical cartoons | Tagged , | 1 Comment

The Court of Appeals gets righteous

Court Appeals marching band

The Sex Offender Registration Act (SORA), like the Emperor’s New Clothes, is nonsense perpetrated in the name of superior wisdom. It creates a permanent underclass of “sex offenders,” defined as anyone convicted of an offense from a list that includes misdemeanors and offenses not even involving sex.  After serving their sentences, “sex offenders” have a hearing where a judge decides whether they pose a high, moderate, or low risk of committing a future sex offense.  Persons classified as moderate or high have their names, photographs, addresses and other personal information unrestrictedly available to the public on the Internet sex offender registry.  They are hindered for the rest of their lives from finding housing and employment or living a normal civic or family life.  This is supposed to make the public safer.

Since its enactment in 1996, SORA has generated an ever-growing accumulation of ill-considered case law that flies in the face of the most basic principles.  Uncorroborated, un-cross-examined accusations in police reports and grand jury testimony are regarded as proven facts. Charges that were dismissed in exchange for a guilty plea are considered as if they were convictions.  Judges’ personal views about sexual morality are congealed into legal precedent.  Prosecutors use SORA hearings as an opportunity to take a second bite at the defendant, humiliating and denigrating persons who have already been punished.

The Court of Appeals has now joined in this attractive practice in People v. Gillotti, a SORA case involving a 19-year old Air Force serviceman who downloaded child pornography when he was in high school.  After broadcasting every detail of his psychiatric diagnosis, the Court launches into indignant tub-thumping about the evils of child pornography.  The images aren’t pornography,  the Court thunders,  they’re crime scene photos and anybody looking at them is an accessory.   The Court quotes as “emblematic” a woman who was made to pose for pornographic photos when she was nine and says her life is even worse now because people are still looking at them. She’s suuing a man for $3.4 million because he downloaded two of them from the Internet.  Paroline v. United States (US 2014).

As Judges Smith and Lippman dissent, none of this has anything to do with risk prediction under SORA.  Smith points out that the majority’s premise is that “because child pornography is bad, any negative consequences visited on those who provide a market for it must be good. I think that this approach is more likely to produce emotional satisfaction than to protect any children.”  Emotional satisfaction!  Fighting words to the four girl judges in the majority!

Gillotti is also a milestone in selective use of science.  The Court cites Dr. Somebody’s  “Classical Conditioning paradigm” as proving that possessing “multiple images” may indicate a “compulsive cycle.”  The Court finds that this “scientific concept” justifies imposing the same points for having two or more dirty pictures as for sexually assaulting two or more persons.  This is the same Court that studiously ignores that the point system used in SORA hearings has no scientific basis whatever. We know because we’ve been trying to get leave on that issue since 2003 and can’t get no emotional satisfaction.

Most annoying of all is the Court’s pretense of throwing a sop to SORA defendants by saying they need only prove a “downward departure” from the point score by a preponderance of the evidence. Big deal. The defendant shouldn’t have the burden of proof at all. The point score is nothing but a recommendation, not an interlocutory judgment.  A SORA hearing is a proceeding where the State deprives the individual of basic civil liberties. The burden is only and always on the State to show why.








Posted in Civil Liberties, Satirical cartoons, SORA | Tagged , , , , | 2 Comments

How to make jail visitors comfortable: fingerprint them

Rikers IslandRikers Island, a notorious hellhole where arrested persons can enjoy their presumption of innocence behind bars while awaiting trial, has instituted a policy called Visitor Express, which according to the NYC Department of Corrections, “was developed with visitors’ comfort in mind.”

“Comfort” in the Orwellian vocabulary of Corrections, means that if you want to visit your friend or relative in jail, you’re “strongly encouraged” to be “biometrically registered,” i.e., fingerprinted.

“Visitors do not have to be fingerprinted in order to visit,” explained Acting Commissioner Cranston in a letter to inquiring Assemblyman Daniel O’Donnell.  Why, in a 6-month period, a whopping 1,091 visitors out of a total of 23,592 “did not have fingerprints captured.” Cranston doesn’t say how many friends and family decided to forego the visit rather than risk having their prints entered into who-knows-what database.

What happens to a visitor who declines the comfort of being fingerprinted? According to the rules,  “The registration officer shall immediately notify the visit captain. The visit captain shall attempt to persuade the visitor to provide fingerprints. If all attempts to obtain the fingerprints fail, the visit captain shall override the fingerprint requirement” (emphasis added).

Here’s the story behind those 10,091 uncaptured fingerprints:

Visitor: Why do I have to be fingerprinted just to visit my grandmother?

Visit Captain: Nobody says you have to.  You’re only strongly encouraged. You can visit without being fingerprinted if all my attempts to persuade you fail (Pulling out a meat cleaver).

Visitor: (Hiding his hands behind his back) I know my rights! You can’t force me!

Visit Captain: Perish the thought, we’re just trying to make you comfortable.  You refuse to be printed, we can make your grandmother comfortable too.   

Visitor:  Just because I’m visiting someone in jail, you assume I’m a criminal!

Visit Captain: Only criminals object to being fingerprinted.

It looks like Operation Visitor Express (apparently unique to Rikers Island) is just another way of obtaining people’s prints on a hunch that they’re illegal or have an open warrant.  Like arresting certain types for jaywalking or taking up two seats in the subway.  Nonsense! says Commissioner Cranston.  Corrections wouldn’t dream of sharing the prints with the cops or the Feds Unless they ask for them, of course.

“Most importantly,”  Cranston explains, “fingerprinting means that no one can visit under a false name if he/she has been found with contraband in the past and suspended from visiting.”  He doesn’t say how often this happens, if at all,  considering that you have to show more i.d. to visit Rikers than to get into the Pentagon.

And lest you think these are desperadoes smuggling in dope and machine guns, “contraband,” according to the regulations, can be a cigarette or a candy bar.  Visitors may wear only “one layer of clothing,” although this rule is bafflingly contradicted by another rule requiring the wearing of underwear.

“Liquids and beverages” are also forbidden, “except two clear plastic bottles with non-alcoholic beverages for babies accompanying visitors,” eliminating all those weaning their infants on whiskey.

Tip o’ the hat to Monica Dula, Legal Aid attorney who squawked about the policy to her Community Board, who squawked to the Assemblyman.

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