Court admits expert water-dunking testimony as relevant, helpful to jury.

 The trial court did not abuse its discretion in admitting expert testimony concerning defendant’s failure to pass the water-dunking test. Dr. Brimstone, who has testified in over 200 witch trials, was plainly qualified to explain to the jury that immersing a suspect in water has long been accepted by the forensic dunking community as a reliable technique for determining guilt.  Defendant failed to proffer scientific research supporting his criticisms of dunking methodology, which in any event, go to weight, not admissibility. It is well-established that admissibility is firmly within the sound discretion of the judge who can admit whatever the hell he wants so long as it’s been admitted before.  We find no error where, as here, the testimony was clearly relevant to a matter at issue and helpful to the jury in reaching a guilty verdict.  — United States v. Serious Science (2017).

We stole this idea from Judge Nancy Gertner (Ret.), famous for her caustic wit when it comes to pseudo-science in the courtroom. The occasion was the Innocence Project’s 25th Birthday bash, celebrating a quarter of a century of exonerations, but also puzzling over why they’ve made hardly a dent in everyday judge-think.

Another refreshingly forthright voice at the party was Chief Judge Harry Edwards of the DC Circuit, who oversaw the National Academy of Sciences Report in 2009.  The NAS Report, if you remember, rocked the criminal justice system by exposing forensic “science” as nothing but the opinions of cops in labcoats. “Just being based on science doesn’t make it scientific,” said Judge Edwards. “That’s like saying a movie is based on a true story.”  “Experts” testifying to “100% certainty” that a bullet, footprint, hair or bitemark “matches” the defendant’s gun, shoe, head or teeth is just humbug.  No matter how carefully you peer through a microscope, it’s meaningless to say that two objects are similar if you don’t have a database and statistics to know what similarity means.

In other words, it’s like declaring a match between two faces because they both have two eyes and a nose.

Gertner and Edwards agonized over why neither the NAS Report nor the even more devastating 2016  PCAST report has had so little effect in the courtroom. “It drives me completely out of my mind that judges are still admitting bitemark testimony,” said Edwards. “It doesn’t matter whether the lab follows standardized procedures if the whole field has never been shown to be valid or reliable.”

Noting how the present administration has put forensic science reform under the control of the Department of Justice, Edwards called the situation “a nightmare.”  Reform can’t be left in the hands of prosecutors, “who created the problem in the first place,” he said.  There has to be an independent agency of “real scientists” to create “a culture strongly rooted in science.” But the DOJ snuffed out the burgeoning National Commission on Forensic Science and replaced it with an in-house “working group” headed by a career prosecutor who thinks “the jury is still out on bitemarks.”

“And that’s why we’re not going anywhere,” said Edwards.

Both judges agreed that criminal defense attorneys need to take more initiative in challenging pseudo-science. Gertner recalled her frustration at hearing an arson expert testify like this:

Expert: I had Billy the Dog inspect the scene of the fire. I looked into her eyes and saw that she was telling me it was arson caused by a fire accelerant.

Judge: (to defense lawyer) Any objection?

Lawyer: No, judge.

Expert: I could tell by the position of Billy’s tail that she wanted me to know the fire was ignited by a petroleum distillate so as to collect insurance on the property.

Judge: (being driven completely out of her mind) Any objection, counsel?

Lawyer: No, judge, I’m good.

Edwards and Gertner were unsparing of their colleagues. “Non-science is enshrined in judicial opinions,” said Edwards. Courts simply repeat experts’ claims that their field has a zero error rate. No scientific discipline has a zero error rate. “Judges will not get off their duffs until real scientists come in with real studies,” he concluded.

Gertner saw the problem as that trial judges are never reversed for admitting evidence so long as there’s precedential authority for it. “Courts conflate legal precedent with general acceptance in the scientific community,” she said. “Someone needs to be reversed for admitting shoeprint or bitemark testimony.”

She castigated the judicial “dodge” of saying that the discrediting of these forensic disciplines “goes to weight, not admissibility.”  What if the prosecution proffered expert testimony on dunking? Would it be within the judge’s sound discretion to admit it?

Next: How they do things in Massachusetts.


Posted in Forensic "science", Judges, Law & Parody | Tagged , , , , | Leave a comment

Chief Judge orders prosecutors not to be crooked and defense lawyers not to be incompetent

The Chief Judge adopted the “groundbreaking recommendation” of the  NY State Justice Task Force Report  that from Jan. 1,  all New York State trial judges must issue an order in every criminal case directing prosecutors to disclose evidence helpful to the defense. Judges must also order defense counsel to provide competent representation, which means having “a reasonable knowledge” of criminal and evidentiary law. 

We snagged a member of the Force who agreed to speak to us anonymously.

Squawk: Seems like there’ve been several Task Forces about the criminal justice system over the past few years. How do they work?

A. The procedure is that we periodically meet for lunch at a big law firm and tell each other how wonderful we are. Then we issue a groundbreaking recommendation that makes the front page of the NY Law Journal and is never heard of again.

Q. But surely your recommendations about prosecutor misconduct will have some effect?

A. Darn tootin’. The first thing we decided was that “prosecutor misconduct” is an offensive, discriminatory term that should no longer be used.  Unless you can prove beyond a reasonable doubt that the prosecutor acted from evil-minded conscious malicious premeditated wickedness.

Q. What should normal prosecutor misconduct be called?

A. The correct term is prosecutorial oopsy-daisy.

Q. How do prosecutors decide what evidence is favorable to the defense?

A. Same way you decide how many unicorns are in your garden. Favorable evidence is an imaginary creature dreamed up by defendants. If it existed, there wouldn’t be a prosecution.

Q. What about other kinds of prosecutorial oopsy-daisy? Let’s say the prosecutor materially misrepresents the evidence on summation?

A. That certainly calls for a good scolding. Why, only last week a case came out where the prosecutor told the jury, “the signs of defendant’s unbridled obsession were still on him in the form of a white t-shirt covered in the victim’s blood,” when there was actually nothing but three tiny droplets. The Appellate Division said it was a gross exaggeration and improper.

Q. And reversed the conviction?

A. Of course not. That prosecutor has suffered enough.

Q. What about your recommendation that defense lawyers have a “reasonable knowledge” of the law? Isn’t that setting the bar awfully low? What if an airline pilot announced, “Ladies and Gentlemen, I have a reasonable knowledge of how to fly a plane?”

A.  Are you suggesting that the already-overburdened court system should allow a new trial just because the defense lawyer didn’t know what s/he was doing?

Q.  Well, sort of.  How do you expect change if courts never reverse convictions for  prosecutor misconduct or defense counsel incompetence?

A. Who said anything about expecting change?

The elephant in the room


Posted in Criminal Defense Appeals, Law & Parody, Satire and parody, Satirical cartoons | Tagged | Leave a comment

“Hands up, motherf*cker! This is a request for information!”

The fact that defendant may have been the only person in the photographic lineup wearing white sneakers does not render the lineup unduly prejudicial  – even though the victims’ description of the perpetrator included white sneakers – as the clothing at issue is not unusual and is an extremely common item of clothing.” People v. Campbell (AD1 2017).

And if  that’s not enough to show the lineup wasn’t suggestive, the definitive proof is that “two of the four victims were not able to identify defendant.” Apparently a lineup isn’t suggestive unless the suspect is so conspicuous that it’s impossible not to pick him out.

Fortunately, we don’t have to worry that “defendant” (why the article-deprivation?) was misidentified. He was “near the crime scene” (i.e., in the neighborhood) when shots were fired “and matched the general description of the suspect” (i.e., male black).

Did that give the cops probable cause to arrest, or reasonable suspicion that he’d committed a crime, or even “a founded suspicion that crime is afoot”?

Doesn’t matter, said the court, because when they ordered him “to stop and put his hands up in the air,” that was a mere “approach to request information.”

Moral: There’s no such thing as an unreasonable search and seizure if you’re guilty.

Approach to request information

Posted in Criminal law, eyewitness identification, Law & Parody, Satirical cartoons | Tagged , | 2 Comments

“Give me a lawyer, dawg.”

The Louisiana Supreme Court recently decided that a suspect in custody had failed to unequivocally invoke his right to counsel, based on his statement transcribed as, “If y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

The court found it obvious that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel.”

We’re not making this up.

h/t to Simple Justice 

From an alert reader:Law dogs LA

Posted in Criminal law, Law & Parody | 9 Comments

President Trump takes to the street

We donated a dollar and he blew us a kiss.

P.S. Squawk has gone legit! See us in “The Crime Report,” the online zine of John Jay College of Criminal Justice.



Posted in Humor, Law & Parody, Satire and parody | Tagged | Leave a comment

Squawk is interrogated

Lenny Bruce complained that cops would go to his show, write down every word of his routine and then read it aloud in the Grand Jury, completely ruining his lines. Although not remotely in the league of that great iconoclast, we thought of him while being forced to listen to our interrogator – a Barbie doll from a notoriously anti-labor law firm retained by our employer – reading aloud our post “Are you a cissie?” “What did you mean by that?” she kept wanting to know. “Yes, you can explain a joke, yes, you can, yes, you can!”

She also wanted the emails of the subscribers to the Squawk.  But we followed the sterling example of the NY Public Library refusing to disclose the identity of its library card-carriers to Homeland Security. Our readers are safe with us.

All because of some humorless prigs who got pissed off at our poking fun at their “trainings” advising us to quiz our clients about gender issues.

After an hour and a half, Barbie finally came clean and told us what she wanted us to admit: that a reasonable person could read our blog as saying that transgenders are “a myth.” We didn’t understand. They’re perfectly visible and tangible, how could they be a myth?

But now we get it. The blog expresses the dangerous, unacceptable notion that there could be times  – for instance, when you’re accused of a crime or defending someone accused of a crime – that gender issues aren’t that important.  Maybe we’re wrong, but to spend thousands of dollars to investigate us for saying so? Really

P.S. Many, many thanks for the blawger support from Simple Justice  Windy Pundit and Defending People.

Posted in Civil Liberties, Humor, Satire and parody | 15 Comments

Privacy for me but not for thee

 Here we see NYPD Police Officer James Frascatore using the “straight arm bar takedown” on Mr. James Blake whom he mistook for a suspect in a credit card scam. Not only did he have the wrong man, Mr. Blake was a retired world-class tennis pro, apparently doing nothing more than “fidgeting with his phone and looking around.”

Last week P.O. Frascatore had a disciplinary hearing – in front of another NYPD officer, of course – where he faced the draconian punishment of losing some vacation days.  A retired NYPD cop testified, with no apparent irony, that Frascatore’s actions were “entirely in keeping with his training.”  When the retiree was asked if he himself had been part of a ticket-fixing scandal a few years back, the judge cleared the courtroom, citing Civil Rights Law 50-a, which shields cops’ personnel records from disclosure.  Public activists protested that this was a terrible misuse of the law.

Maybe so, but why impeach the credibilty of a witness who’s publicly admitted that the NYPD trains its cops to go around doing the straight arm bar takedown on people without first finding out who they are? What’s a little ticket-fixing compared to that?  The guy should be a star witness for the prosecution in every police brutality case.

The People invoke the same Civil Rights law as an excuse to stamp “Confidential” on their briefs in sex offense cases without even the silly formality of a judicial ruling.  Of course they could refer to the complainants by their initials, but they prefer to splatter their names all over the brief and then declare it off-limits to the public.  Considering what a rich source of dubious convictions sex prosecutions are, it’s no wonder that the People want secrecy. It’s called CYA.

Posted in Civil Liberties, Criminal law | Tagged , | 1 Comment