Ken Thompson, Brooklyn’s model DA


We barely know what’s going on in our own office, let alone over at Renaissance Plaza where the Brooklyn DA perches on the heavily guarded 19th floor. But thanks to “Down the Rabbit Hole” by the intrepid blogger ADA Fustian Orotund, we learned that one of the proposed reforms of New Broom Ken Thompson, or Bobble Head as he’s affectionately known to his subordinates, was to eliminate meal reimbursements for same when they work the night shift. A severe blow, considering that ADA’s are always creeping around at night on some pretext or other.

Which makes it all the more hilarious that Boss Thompson is being fined by the Conflict of Interest Board (COIB) for using $5,524 of City money to pay for his meals ever since taking office in January, 2014. Even more sidesplitting is that he was warned that this could violate the prohibition against using City money for personal benefit. Did he consult the COIB? Certainly not. It’s up to the DA’s Office to decide what the law is. He consulted his staff.

This was apparently the same crew that routinely assures ADA’s that there’s no such thing as Brady material that has to be turned over to the defense. Thompson kept on billing the public for his feed until, as he delicately put it, “I later realized this practice violated City rules.”

Slapped on the wrist by the COIB and fined $15,000, he explained that he’d paid back the dinner money, saying, “I accept complete responsibility for this violation and regret that it occurred.” A new era has dawned in Brooklyn.

Scene: Brooklyn Criminal Court

Judge: The charge is robbery, gun possession and loitering in the park after sunset. How do you plead?

Defendant: I accept complete responsibility for this violation and regret that it occurred. Plus, I gave the wallet back.

Judge: Very well. You will be fined the same proportion of your income as the District Attorney was. Pay the two dollars to the clerk downstairs.

Next case. Madam, you’re charged with receiving $5,524 in Welfare payments that you weren’t entitled to. How do you plead?

Defendant: I  was warned that I might be violating the prohibition against listing one’s cats as dependents, but my I consulted my friends and they told me to go ahead. I later realized that this practice violated Welfare rules. I accept complete responsibility for this violation –

Prosecutor: Violation! Since when is bilking the City out of five and a half grand a violation? It’s felony if there ever was one – [Supervisor whispers in his ear] Oh, sorry.

Defendant: – and regret that it occurred.

Judge:  Of course, how could you possibly have known? The rules are so confusing. Go in peace, my child.

As for Fustian Orotund, his blog has disappeared. We fear he’s hanging by his thumbs in some oubliette underneath Renaissance Plaza.



Posted in Criminal law, Humor, Law & Parody | Tagged , , | 5 Comments

Not the News: ISIS Highly Insulted by Trump’s Crediting Obama as Founder

Republican Presidential Candidate Donald Trump told his supporters at a rally that President Obama is “the founder of ISIS.” He later said his remarks were merely “sarcastic.” A spokesman for ISIS responds:

terrorist   Effeminate sodomite crusaders! Is there no end to the lies promulgated by the West? No limit to America’s  shameless policies of cultural appropriation? To credit that apostate Obama as our founder! Outrageous! How many infidels has he beheaded? None!

We do not understand this Trump. If he doesn’t like Mexicans, why doesn’t he just invade their country and slaughter them, as we do over here with Shi’ites, Kurds, Christians, Jews, Al-Quaeda, Taliban. . . the list is too long to remember. Why waste time running for president when he has the money to found his own state? Where would we be if we’d waited to get elected?

And if he thinks we’re a laughing matter, we direct him to our house magazine, Dabiq conveniently published in all the infidel languages. For strong stomachs only.

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SORA: The human cost of junk science


RAI crystal ballOf the nearly 40,000 persons on New York’s sex offender registry, 9,679 are displayed on its public website as Level 3, a warning that he or she presents the maximum risk of committing a sex crime of maximum seriousness. 14,087 persons are displayed as Level 2, meaning they’re moderately likely to commit a moderately serious sex crime.

With so many Frankensteins at large, it’s a wonder anyone dares leave the house.

How does the State know these people are so dangerous? Because they’ve each had a SORA hearing where a judge added up the numbers on a “Risk Assessment Instrument” form (RAI) and classified them accordingly.

Given the severe consequences attached to being publicly identified as someone who’s likely to commit a sex crime any minute, you’d expect courts to use a reliable, scientifically validated method of risk prediction. But the RAI’s only validation is the say-so of its authors: five employees of the Departments of Probation and Parole picked by the Governor.

The RAI is a mishmash of pseudo-science and law enforcement folklore. The scientific articles it cites, apart from being long outdated, don’t remotely support its sweeping generalizations about what factors predict recidivism. Although the RAI claims to be an actuarial instrument, its scoring system has no discernable methodology except for being heavily weighted towards a finding of maximum risk. Despite its scientific pretensions, the RAI is a caboodle of moral judgments based on the wholly unscientific assumption that “if he did it before, he’ll do it again.”

SORA was a reaction to the rape and murder of little Megan, an unattended 7-year old invited into the home of a man who turned out to be a sex offender. The statute was enacted on the assumption that sex offenders are a species of murderous pedophiles who, unlike other convicted offenders, remain incorrigible even after they’ve served their sentences. They were thought to be a kind of Pod People, described by one assemblyman urging passage of the bill, as “the most dangerous kind of criminals. . . . who look just like you and I, who live in homes just like we do, and from their outward activities, seem just like we are. But in fact, Madam Speaker, they are not.”

Another lawmaker argued, “We have passed bills all the time requiring labels on chemicals, products and toys to inform consumers of potential dangers. On a pack of cigarettes and bottles of alcohol there is a warning label.” And since sex offenders are “the human equivalent of toxic waste,” he reasoned, they should similarly be labeled as a warning to the public.

The notion of “sex offender” as an existential category is a myth, as is the belief that anyone convicted of sexual misconduct has a higher likelihood of reoffending than other offenders. Researchers such as R. Karl Hanson, who developed a widely used, independently validated risk assessment tool called the Static-99, have shown that recidivism prediction can’t be simplistically correlated to the moral seriousness of the offense. Nor is there any empirical basis for assuming that a reoffense would be the same as the past offense.

Defense lawyers have repeatedly presented uncontroverted expert evidence at SORA hearings showing that the RAI doesn’t use a valid methodology and isn’t based on the scientific consensus about what factors are predictive of recidivism. The courts have responded by keeping their heads firmly in the sand.  New York’s highest court has even declared that the RAI gives “presumptively correct” results.  How does the court know? Because the RAI says so.

The only judge who has publicly criticized the RAI is Justice Daniel Conviser in Manhattan. In a scathing 100-page opinion called People v McFarlandhe found that the RAI, by relying on factors irrelevant to recidivism, is so arbitrary as to violate due process. Although he felt constrained by legal precedent to use the instrument, his analysis was the basis of a bill in the Legislature requiring the use of a scientifically validated instrument for SORA risk level classifications. It died in the Senate.

The Legislature and courts protest – perhaps too much – that SORA isn’t additional punishment for the past offense. That’s hard to explain to the thousands of persons who can’t “live in homes just like we do,” because of being branded as sex offenders.  But SORA is merely regulatory, we are told. No different in principle from labeling a pack of cigarettes.

In reality, there’s no instrument capable of predicting an individual’s future risk accurately enough to justify the lifelong humiliations and deprivations inflicted on SORA registrants. Even the Static-99 claims to be only moderately predictive. But if courts want to maintain the fiction that SORA is purely a public safety measure and not a vindictive targeting of an unpopular class, there’s no justification for using junk science.

Posted in Civil Liberties, Law, Law & Parody, SORA | Tagged , , , , | 6 Comments

The NY Court of Appeals gets its comeuppance

NYCA July 2016

When it comes to federal habeas petitions, never has so much been denied to so many by so few. To the prisoner, a habeas is the last bastion of hope. To the federal judish, it’s the occasion for assuring state court judges that they’re just as equal if not more so, even if they get paid less and weren’t appointed by the President.  And although the state court decision might have been a teensy bit wrong, or even very wrong, it’s never wrong enough to justify depriving the Great God Finality of its human sacrifice.

Which is why the Second Circuit’s habeas grant in Fuentes v. Griffin should be front page news. At last, a federal court has called the NY courts onto the carpet for fiddling the facts to uphold a conviction. Or, as the 2d Cir. put it, “not recognizing the actual content” of the record.

Fuentes began as a typical swearing contest where he said it was consensual and she said it was rape, and there was nothing but their word to support either story.  But things took a strange turn when defense counsel, in the middle of his closing argument, found a document among the People’s exhibits that he’d never seen before. It was a psychiatric report showing that for at least two years before encountering Mr. Fuentes, the complainant had been suffering from chronic depression, thoughts of killing herself and frequent crying spells.

Counsel moved for a sidebar and argued that if the People had turned over the report before trial – as they were supposed to do – it would have been valuable impeachment material. It would have supported his client’s testimony that the encounter was a mutual pickup, but that when he’d expressed no interest in seeing the complainant again, she became furious, made a scene in public and told him he’d be sorry. The report would also have enabled counsel to argue to the jury that the complainant’s continual crying on the witness stand wasn’t necessarily a sign that her story was true.

The prosecutor blithely admitted that she’d intentionally withheld the psych report while assuring defense counsel that she’d given him all the medical records. This is considered very bad manners, known in the trade as a Brady violation.

The court denied a mistrial, saying the report wasn’t exculpatory, although that’s not the Brady test. The jury, after deliberating for two full days, returned a guilty verdict. Mr. Fuentes got 25 years.

The Appellate Division found no Brady violation, saying that defense counsel had “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses.” Say what? He didn’t even know about it until the middle of summation. That’s the Appellate Division for you: they just make stuff up.

The NY Court of Appeals also found no Brady problem, albeit “employing a different rationale.” That’s how higher courts tell lower courts, “Your rationale is embarrassing, but we’ll cover your judiciary (CYJ).”

The NYCA’s different rationale was to out-and-out misread the report as saying that the complainant had no history of psychiatric problems and was depressed because she was raped.  Besides, said the Court, the report didn’t say she was so out of it that she couldn’t identify the defendant. Anyway, it wouldn’t have been useful as impeachment because the defendant’s story was contradicted by the complainant’s story.

The late Judge Jones dissented, accusing the majority of engaging in a “selective marshaling of the facts.”

The Second Circuit tore the NYCA decision limb from limb, calling it sloppy, biased and circularly-reasoned. Okay, they didn’t put it quite like that. But, they said, there’s a limit to deference when the court relies on a record it hasn’t bothered to read. A radical conclusion that really ticked off the 2d Cir. dissenter, a former NYCA judge, so naturally a fan of deference über alles.

Apart from noting that the NYCA hadn’t recognized the actual content of the psych report, the 2d Cir. said that its analysis “did not reflect a careful, balanced, or fair examination of the nature and strength of the evidence presented. . . . Far from evaluating the trial testimony as a whole, the Majority ignored substantial aspects of the testimony, thereby overstating the strength of the State’s case.”

Rubbing it in some more, the 2d Cir. found that the NYCA had just plain got the issue wrong. The defense wasn’t that the complainant was too delusional to make an identification, it was that she was falsely accusing Mr. Fuentes out of anger and vindictiveness. Where the only evidence that the encounter was a rape was her word for it, the report showing her history of mood disorder would have been valuable impeachment. And it was a bit circular to denigrate the report’s impeachment value by assuming the truth of her testimony.

Will Fuentes persuade appellate courts to start recognizing the actual content of the record instead of selectively marshaling the facts? Will it make them question the assumption that appellate review just means finding a way to affirm the conviction? Or will Fuentes be just another blazing comet that briefly entered the judiciosphere and won’t be back again until 3016?

Rubber stamp

Posted in Criminal Defense Appeals, Criminal law, Judges, Law, Satirical cartoons | Tagged , , , | 4 Comments

Guest Post: Exoneration after 25 Years Is Great but Competent Appellate Review at the Time Would Have Been Better

Andre Hatchett after being exonerated in Brooklyn. Barry Scheck of the Innocence Project is at left. Second from right is Seeme Saifee, staff attorney with the Innocence Project, and James Brochin of Paul, Weiss, Rifkind, Wharton & Garrison

Andre Hatchett after being exonerated in Brooklyn.
Barry Scheck of the Innocence Project is at left. Second from right is Seeme Saifee, staff attorney with the Innocence Project, and James Brochin of Paul, Weiss, Rifkind, Wharton & Garrison                 Photo by NYLJ

When Andre Hatchett was exonerated after serving half his life in prison for a murder he didn’t commit, the deceptively mild-mannered Ursula Bentele, Professor Emerita of Brooklyn Law School, commented that the Appellate Division had every reason to know at the time of his original appeal that it was very likely a wrongful conviction and plainly an unfair trial. She should know: she supervised his appeal.

By treating Mr. Hatchett’s appeal “in cavalier fashion,” the court bears some responsibility for his 20 years of wrongful imprisonment. 

Twenty years ago, Michelle Flaxman, a student in the Brooklyn Law School Criminal Appeals Clinic, received disappointing news. The Appellate Division, Second Department, in a brief, one-page opinion, affirmed the murder conviction of Andre Hatchett, rejecting the three legal arguments she had raised in her brief. People v. Hatchett, 225 A.D.2d 634 (2d Dept. 1996). Michelle wrote a strong letter seeking leave to appeal to the Court of Appeals, but Judge Bellacosa denied the application. Feeling passionate about the client’s possible innocence, Michelle referred the case to the Innocence Project, hoping that lawyers there might be able to accomplish what she could not.

Last month, after almost 25 years in prison, Andre Hatchett was finally set free. With the consent of the Brooklyn District Attorney’s office, and after extensive investigations by the Innocence Project with pro bono assistance from the Paul, Weiss law firm, the court released Mr. Hatchett, vacating his conviction and dismissing the indictment. Mr. Hatchett had been wrongfully convicted based almost entirely on the questionable testimony of career criminal who claimed to have  witnessed the killing (after he had been arrested himself for a burglary). The prosecution had withheld information that this witness first identified someone else as the killer, and defense counsel at trial failed to present evidence of Mr. Hatchett’s physical and mental disabilities that would have made it virtually impossible for him to commit the crime.

None of the extensive news coverage of this exoneration has focused on how the appellate process operated in Mr. Hatchett’s case. In considering how injustices like this one might be avoided, it may be worthwhile to look at that process. The appellate brief raised three points:

The conviction for intentional murder was against the weight of the evidence.

The prosecutor improperly questioned the alibi witness about his failure to come forward with exculpatory information.

The trial court abused its discretion by not reopening the suppression hearing, at which the defendant was represented by ineffective counsel.

The case against Mr. Hatchett, who had no prior record, depended on the testimony of Jerry Williams, a man with at least 28 prior arrests. Williams claimed that on February 18, 1991, he and a female companion on her way to buy crack had witnessed a man beating the victim (whom Williams knew, as she had served as a look-out for some of his burglaries) in a Brooklyn park. They failed to contact the police about what they had seen, but when Williams was arrested for burglary a week later, he told the detective that he could identify the person who had committed the murder. Although he selected Hatchett from a line-up, the police released him, only to place him in another line-up a month later. The female companion at first either could not identify anyone, or identified one of the fillers, but ultimately picked out Hatchett, who was then arrested and charged.

At pre-trial hearings, defense counsel failed to challenge the first line-up and did not even cross-examine the single police witness. At the first trial, when the prosecution rested its case, defense counsel moved for a mistrial based on his own inadequate representation. He had, among other things, failed to provide alibi notice although Mr. Hatchett, when first interviewed by the police, had stated that he was with Tyrone Thomas at the time of the killing. The lawyer also had trouble hearing, and generally behaved inappropriately throughout the trial. The court declared a mistrial “as a matter of manifest necessity.”

At the second trial, when questioned about the line-up, Jerry Williams mentioned “people picked out of the mugshot book,” although no notice of any photo identification had been given. His female companion did not testify at either trial.

Andre Hatchett testified that on February 18, 1991, he was using two crutches and had a cast as a result of having been shot in the leg and throat. He had trouble talking. (Williams described the killer as yelling or shouting.) He had spoken to the victim at her home earlier in the day, but did not spend time with her in the evening. Rather, he went with Tyrone Thomas to his girlfriend’s house. Thomas confirmed that Hatchett was with him that evening, and that he was using crutches and had his cast in a bag because it was raining. On cross-examination, the prosecutor was permitted, over objection, to question Thomas about whether he had gone to the police with his information about Mr. Hatchett. Thomas explained that Hatchett was “getting locked up back and forth,” so that he could not go with him to tell the police about the alibi. He had in fact told Thomas’s first attorney in March 1991 that Thomas was with him that night. The jury deliberated overnight, finding Hatchett guilty after having the testimony about whether Thomas had gone to the police reread. The judge imposed the maximum sentence of 25 years to life, after the prosecutor noted that the defendant expressed no remorse. Defense counsel explained that his client had always maintained his innocence, and when asked whether he had anything to say before being sentenced, Mr. Hatchett said: “I didn’t do it.”

The appellate court rejected the weight of the evidence claim in two sentences: “Although the witness who claimed to have seen the defendant beating the victim in a park had an extensive criminal record, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions for the jury, which saw and heard the witnesses. Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record.” (citations omitted)

The court asserted that the claim regarding questioning of the alibi witness had not been preserved, despite several objections raised by defense counsel. The court added: “In any event, there is no merit to the defendant’s claim (see People v. Dawson, 50 N.Y.2d 311).” Dawson, of course, is the case in which the Court of Appeals established the rule that, without a good faith basis and proper foundation, a prosecutor may not question an alibi witness about his failure to come forward with exculpatory knowledge. The court gave no reason for its conclusion that this claim had “no merit.”

Here, the prosecutor had been present at the first trial when a mistrial was declared, in part, because defense counsel failed to provide the required alibi notice, despite Mr. Thomas having come forward with information that Hatchett was with him the evening of the killing. Yet the prosecutor questioned Thomas as though his current testimony were a recent fabrication.

The court dismissed appellant’s third claim in a similarly cavalier fashion: “The defendant’s claim that the court should have reopened the Wade hearing is also unpreserved for appellate review and, in any event, without merit.” (citation omitted) While this claim was indeed unpreserved as a matter of law, it presented a particularly appropriate case for the exercise of the court’s interests of justice jurisdiction. The lawyer who handled the first trial, in which the court was forced to declare a mistrial due to his incompetent performance, was the same lawyer who represented the defendant at the Wade hearing.

The court was well aware of that fact, and even without a motion by the new defense attorney, the interests of justice required that the Wade hearing should be reopened so that competent counsel could explore the key question of the reliability of Williams’s identification.

New York law guarantees to criminal defendants a single appeal as of right to the appellate divisions. After that appeal, defendants must rely on volunteer assistance to try to rectify any injustices. It should therefore be incumbent on the appellate courts to look particularly carefully at cases that suggest, or indeed strongly signal, that the defendant might be innocent. If that had occurred in Mr. Hatchett’s case, he could have been saved 20 years of wrongful imprisonment.


Posted in Criminal Defense Appeals, Criminal law, Law | Tagged , , , | 5 Comments

Justice Ginsburg speaks her mind. . . and is sorry.

Ginsburg leaning

Millions of Americans who were ready to vote for Trump abruptly changed their minds after Justice Ginsburg publicly stated that if he were president, “I can’t imagine what the country would be.”  “He says whatever comes into his head at the moment,” she added.

Trump rallies across the country had to be canceled for lack of attendance. “We were looking forward to waving signs saying, “America for Americans,” said Darlene Sixpack, standing in front of her trailer with her husband Joe.  “But after hearing Justice Ginsburg’s comments, we decided to stay home and read Noam Chomsky instead.”

“I contributed 5 million dollars to Trump’s campaign,” said J.P. Monopoly, speaking from his private jet. “But gosh darn it, I never thought about what the country would be like if he were elected. Thanks to Justice Ginsburg, the wife and I sat down and did some imagining. And it didn’t look good.”

Fox News announced that the right-wing channel would sharply cut down on coverage of Trump. “We’d never noticed that he says whatever comes into his head at the moment,” said a spokesperson who asked not to be named. “We thought everything was carefully prepared. Now that Justice Ginsburg has exposed his true nature, we’re throwing our support behind Clinton.”

Justice Ginsburg admitted to the press that her comments were “ill-advised.”  Knowing, of course, that when a court finds a judicial remark “ill-advised,” it’s code for, “and what are you going to do about it?”

Posted in Humor, Judges, Law & Parody | Tagged , | 1 Comment

Punishing misconduct: Prosecutors can dish it out but can’t take it

Once again the NY State District Attorney lobby has strongarmed the Legislature into not even voting on a bill that would hold prosecutors accountable for misconduct (NY Law Journal 6/22/2016).

The idea of “subjecting already busy prosecutors to investigations and hearings at the whim of a disgruntled defendant, victim or member of the public!” fumed the head honcho.

“We are going to spend the vast majority of our time defending every judgment call that we make,” howled an upstate DA. “Are we going to have to be responsible for every mistake we make?

“We can be easy targets at times,” whined the Bronx DA. “When we do our work, there are always unhappy customers.”

The DA’s assured the Legislature that a commission was quite unnecessary because prosecutors are deterred from wrongdoing by “oversight by trial judges.”

It’s true that members of the public get disgruntled about being dragged through the system by busy prosecutors. Like the unhappy customer put on trial for rape by a Bronx ADA who was too busy to disclose that the complainant had told the police it was consensual. Or the dissatisfied Bronx customer who spent three years at Rikers awaiting trial for a murder she didn’t commit; and was then prosecuted for breaking a “body cavity search chair” in jail.  Woman Could Go to Jail for Something She Did While in Jail for Something She Didn’t Do.

Yessiree, a Commission will put an end to all that prosecutor hanky-panky just like the Civilian Complaint Review Board put an end to police brutality.

Here’s what a Commission to investigate prosecutor misconduct would look like:

Scene: The Honest John Prosecutor Blue Ribbon Independent Integrity Commission. Members consist of five DA’s, a judge who used to be a DA and the head of an institutional defender organization who never shows up. 

Chair: Now that we’ve had our lunch – my goodness, 4 o’clock already! We’d better start spending the vast majority of our time being easy targets for disgruntled customers. My, that’s a big stack of complaints you have there!

Clerk: It’s only one complaint. The form is 75 pages long, not counting the required DNA profile and consent to random search of the person, home, car and place of business of everyone sharing at least 10 of the petitioner’s alleles.

Chair: Yes, we have to verify the petitioner’s identity before we can take their case. I’m glad to see the form has been translated into Chinese for his or her benefit. We accommodate every disgruntled crank – I mean, customer – regardless of race, creed and/or national origin – –

Clerk: We print all the forms in Chinese. Weeds out frivolous complaints. All you need to read is the People’s response.

Chair: Of course. (Reading) “Defendant, a known criminal, proffered certified records showing he was in jail in Florida at the time of the shooting he was charged with in the Bronx. The prosecutor properly exercised her discretion to prosecute and successfully moved to have the evidence precluded as unfairly prejudicial to the People’s case and confusing to the jury. The Appellate Division affirmed and the Court of Appeals denied leave. Man served 20 years in prison before being exonerated  (To the others). Well, we – I mean, they – can’t be responsible for every mistake they make.

Clerk: I guess that’s what’s meant by judicial oversight.




Posted in Humor, Law, Law & Parody | Tagged , | 2 Comments