Appellate Squawk’s Murder Mystery

Harry in deli

Introducting Harry Gottlieb, fearless criminal defense lawyer. A senior prosecutor is found shot dead in his study. The prosecutor’s wife – who happens to be Harry’s estranged ex-wife – confesses. But is she really the killer? To find out, click on the page “Appellate Squawk’s Murder Mystery” in the header above (it’s about 60 pages). Or, if you prefer to read it in blog-sized instalments, go to


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Squawk at the movies: “Court” by Chaitanya Tamhane


Last night we elbowed our way through hordes of leggy young tourists overrunning the shopping mall that used to be SoHo, over to the Film Forum to see a feature film called “Court.” It’s about a 65-year old poet and protest singer in Mumbai, arrested while performing in a public square. He’s funny and unsparing of everyone. We later tried to google-search his DVD’s until we remembered he’s a fictional character.

The charge against him is that he allegedly sang a song advising the (untouchable) sewer workers that “all of us should commit suicide by suffocating in the gutters.” When a worker is found dead in a sewer two days later, the police draw the only possible conclusion: the poet is guilty of “incitement to suicide.”

The film centers around the court proceedings, which drag on for months.

Court poet Court defense and prosecutor

Indian court - judge

The poet is denied bail and his health deteriorates. When bail is finally granted, he goes out and performs even more pointedly satirical songs, writes a pamphlet about the indignities he’s been through and gets arrested at the printer’s. It’s the saddest movie since “Bicycle Thief.”

We concur with the international acclaim accorded to the film, although we’d have liked to see more about the poet and less about the lawyers’ out-of-court lives. The young defense attorney drives a car, has a laptop and shops in a Western-style deli. The prosecutor rides a shabby commuter train, serves dinner to her husband and consults a battered old law book. We get the message – the system is antiquated. There’s also a theme of ethnic hatred, the moral being that censorship merely fans the flames.

We write separately, however, because anyone who thinks it’s only about the court system in India should take a trip to the Bronx Hall of Justice. Or to just about any urban American court. It isn’t all that different: smelly courtrooms packed with anxious, bewildered defendants and their families bullied and humiliated by barking court officers.  Endless rounds of meaningless proceedings and adjournments, forcing the presumed-innocent accused to languish in jail for months, even years.

Nor is the Indian prosecutor basically different from her American counterpart. She brings up the defendant’s brushes with the law from 30 years ago as evidence of his present guilt. She argues a ridiculous interpretation of a statute (which the defense lawyer does nothing to rebut). She asserts facts that she knows or should know are untrue. She’s good to her family and friends but thinks nothing of demanding a 20-year sentence for this frail poet for singing satirical songs. Substitute a black suit for her white sari and she’d fit perfectly into any DA’s Office.

The judge is also a familiar figure. He thinks he’s fair, but his sense of fairness has been hopelessly corroded by the habitual wielding of unquestioned authority. When the defense attorney finally demolishes the prosecution case (we won’t give away how), the remedy isn’t dismissal but only granting exorbitant bail.

One striking difference is that instead of having the court reporter transcribe the proceedings verbatim, the judge dictates his summary of the testimony. Naturally, it’s a highly biased interpretation. We could barely restrain ourselves from jumping up to object.

But even that may not be so different from our system where “the facts” always come down  to a judge’s interpretation. We’re just less direct about it.

One of the last scenes shows the judge authoritatively assuring the father of a mute boy that he can easily be cured by changing his name and wearing a ring with a certain kind of stone. Lest anyone think it’s only in India that judges are superstitious, look at the beliefs underlying our system: that a jury can tell from “demeanor” whether the witness is telling the truth. That an “excited utterance” is reliable. That cops have a special ability to remember faces. That “sex offenders” inevitably repeat their offenses. It’s not all that different from believing in magic rings.


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Is there a constitutional right to put annoying signs on the back of your car?

George Washington's horse Did the Framers of the Constitution recognize a historically grounded fundamental right to have annoying signs on the back of your car?  Applying originalist and strict constructionist principles of constitutional interpretation, we ask: Did George Washington advertise his views on taxation on the rear end of his horse? Did Mary and Joseph flee to Egypt on a donkey whose hindquarters proclaimed “Baby on Board”? No? Well, that should settle it.

But shouldn’t we also consider penumbras, emanations and evolving standards of indecency? As Samuel Johnson famously remarked to Boswell, “Sir, I give not a farthing for what some total stranger chooseth to inscribe on the back of his conveyance. I know of no man, Sir, whose considered views upon a subject have been altered by the sight of contrary views emblazoned in such vulgar fashion.  A displeasing message scribbled thus serves only to proclaim to the World that the occupants of said conveyance are but fools and scallywags.”

Nevertheless, messages on custom license plates became a matter of Supreme concern last term.  What’s the difference, you may ask, between this bumper sticker, which is permitted:

don't blame me confederate flag

and this license plate, which is prohibited:

   except that one costs fifty cents and the other costs thousands of dollars?

The difference is of overwhelming constitutional significance, said the Supreme Court in Walker v.  Texas Division, Sons of Confederate Veterans (2015).  Custom license plates, they explain, are government speech, which the government can restrict in any way it wants.  “A person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. . . . That may well be because Texas’s license plate designs convey government agreement with the message displayed” (italics added).

Really? These plates (all real) convey messages endorsed by the Texas Legislature?  Eat junk food? Root for out-of-state sports teams? Prefer golfing to legislating?

auto.MightyFineBurgers auto.DrPepper     auto.OleMiss     auto.IndianaUniversity     

Here in New York, where it’s generally recognized that the Confederacy lost the war, the controversy wasn’t over Dixie flags but over a proposed anti-abortion custom plate. Children First Foundation v. Fiala (2d Cir. 2015). 

NYChooseLifePlate sm  The Second Circuit couldn’t bring itself to say with a straight face that license plates represent the Government’s viewpoint. Instead, the court upheld the ban on the controversial message by saying that license plates are merely revenue-raising, vehicle-identifying devices, not expressive activity to which the First Amendment applies. These (real plates) look pretty expressive to us:

Hibernian plate Old-Blue-Knights-MtrcleOld-Copshot-PsngrMLK license plate

On that note – Squawk is taking the summer off to write a detective story. We’ll say only that the hero is a defense attorney and the corpse is a prosecutor. We shall return.

Sherlock Squawk

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The 1st Amendment pinball machine

The First Amendment is simple: you can say anything you want unless the Government says you can’t. Confused by all that chin music about “viewpoint discrimination,” “limited public forum,” “time place and manner,” etc.?  Think of it as a pinball machine where the speech restriction is a ball shot into the playfield and flipped against a series of bumpers until it eventually dribbles out the exit slot. No fair to bang or tilt.First Amendment pinball 3







Posted in First Amendment, Humor, Law, Law & Parody, Satirical cartoons | 3 Comments

Can you be fired for calling your boss a f*cking moron?

Mr. Dithers  Can you be fired for calling your boss an insufferable blowfish? An uninformed cactus?  A fucking moron? Not necessarily, says the National Labor Relations Board. It depends.

We’ve recently been reconnoitering the unfamiliar territory of labor law in quest of the meaning of  free speech in the workplace.  We were astonished to discover a whole area of law that takes a realistic and not unsympathetic view of the temptation to lose your cool in the face of overbearing authority.  It was a refreshing getaway from our usual habitat where you can be thrown in jail for calling the judge a pompous barnacle and truth is no defense.

In fact, the NLRB has developed a whole jurisprudence of cussing the boss. We thought we’d share a few highlights. These are all real.

The boss announces that if employees don’t agree to the proposed contract, they’ll lose their retroactive pay.  Can they be fired for wearing buttons saying “STICK YOUR RETRO”? No, said the Board, because the buttons constitute “protected concerted activity” under the Labor Relations Act, meaning expressing shared concerns about the terms and conditions of the job. Southern California Edison Co.

Nor was the message so “obscene” as to forfeit that protection, unlike the sweatshirts worn by phone company employees during contract negotiations saying “MA BELL IS A CHEAP MOTHER,” which the Board declined to find amusing.  Southern Bell Telephone Co.  In contrast, the buttons conveyed a “non-obscene” message akin to “stick it in your ear.” It would have been different if they had said “STICK IT IN YOUR RETRO.”

Recognizing that disputes over working conditions often “engender ill feelings and strong responses,” and that the shop isn’t “polite society,” courts have given “some leeway for impulsive behavior.” Thor Power Tool Co.   This view comes from Supreme Court Justice Frankfurter who called such outbursts “a moment of animal exuberance.” Milk Wagon Drivers Union of Chicago (1941).  “Consarn it!” he would say to Justice Brandeis after a long day of oral argument. “There’s only so much a man can take of all this blankety-blank judicial restraint.” Unreported.

Labor law recognizes that an employee’s “opprobrious statements” may well have been provoked by the boss. In Plaza Auto Center, Inc., a manager repeatedly and maddeningly rebuffed a salesman’s questioning of the company’s commission policy, saying that if he didn’t like it he could go somewhere else. When the salesman finally called him “a fucking crook,” the Board found this to be protected concerted activity.

Labor law also recognizes that swearing is normal speech in some shops. A catering worker, reacting to being humiliated by the boss in front of the guests, Facebooked:  “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Pier Sixty, LLC.

The NLRB held this to be protected concerted activity because it was impulsive, “echoed longstanding complaints about management’s disrespectful treatment of employees,” and “sought redress through upcoming union elections.”  Taken in context, the slur on the boss’s family was simply an emphatic criticism of the man himself. The decision showed that “motherfucker” was practically a routine form of address in the kitchen, quoting an unappetizing exchange between the manager and the chef that would make anyone decide to go eat somewhere else.

The dissent nevertheless argued that the Facebook post was nothing but an “outrageous, individual griping episode,” and obviously not impulsive where the employee had “put in the time, thought, and coordination necessary to use capitalization and punctuation.” Yessiree, it takes a lot of time, thought and coordination to hold down that exclamation mark key!!!!!!!!!!!!!!!!!

In Datwyler Rubber and Plastics, Inc., employees protested the imposing of a 7-day workweek. Employee Moore told the manager, “God created the world in six days and rested on the seventh day,” and that the employees should also be permitted to rest on the seventh day. The manager answered that God had nothing to do with it.  Another employee protested, “God has everything to do with it, because if it weren’t for God, none of us would be here.”

Unable to answer this, the manager retorted that if Moore didn’t like it, she could turn in her badge and go flip burgers. Moore called the manager “a devil” and warned that Jesus Christ would punish him and Datwyler Rubber for the 7-day schedule.

The NLRB found that although this “outburst” could “reasonably be viewed as offensive,” it was clearly part of a discussion about working conditions and “unaccompanied by physical contact or threat of physical harm.” This seems to us exactly backwards.  When Moses told Pharaoh that God would inflict a plague of locusts if he didn’t free the Hebrew slaves, it was hardly “offensive,” but definitely a threat of physical harm. We would steer clear of Datwyler Rubber during a thunderstorm.

As for vituperating one’s colleagues, the same standards apply.  Calling a fellow employee “a brown-nosing suck-ass” when arguing over whether to unionize was found to be protected concerted activity. Traverse City Osteopathic Hospital.  On the other hand, a Facebook posting by a respiratory therapist that a co-worker’s habit of sucking his teeth was driving her so nuts that she wanted to smack him with a ventilator failed to qualify. Although this was arguably a complaint about working conditions, the therapist “was not even suggesting that the Employer should do anything about it.”

As our fellow-blogger Simple Justice would say, none of this is legal advice.  The main reason for not calling your boss a self-deluded toadstool is that it’s unlikely to inspire change. But if your animal exuberance is just too much – –  be sure you’re also engaging in protected concerted activity!!!!!!!!!!!!!!

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Justice Thomas endorses solitary confinement: it’s roomier than a coffin.


As the Supreme Court winds up the season with a bang and a whimper,  Justice Thomas has once again distinguished himself as The Big Mistake.

In Davis v. Ayala (US 2015), the majority affirmed a death sentence where the defense was excluded from the Batson hearing. The prosecutor was allowed to argue his “race-neutral” reasons for excluding all the black and Hispanic prospective jurors in an ex parte proceeding, on the ground that allowing the defense attorney to hear his reasons would tip off the prosecution strategy. Since there was no one to dispute the prosecutor’s reasons, they were obviously indisputable. What? You got a problem with that?

Justice Kennedy, although concurring in the result, took the opportunity to observe that Mr. Ayala has been in solitary confinement for the last 25 years. Meaning, most likely, that he was entombed “in a windowless cell no larger than a typical parking spot for 23 hours a day,” with little or no interaction with anyone for the remaining hour.  More than 25,000 prisoners in the federal system alone spend years in these conditions, “regardless of their conduct in prison.”  Don’t even think about prisoners in the state systems.

In the understatement of the year, Kennedy noted that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” He sarcastically suggested that sentencing judges frankly tell defendants, “In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.”

Kennedy’s implied suggestion that punishment should be rational and humane was like a red flag in Justice Thomas’s face.  Lowering his head and pawing the ground, he retorted: “I write separately only to point out, in response to the separate opinion of Justice Kennedy, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims. . . now rest. And given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”

As if one had anything to do with the other. As if the dead were aware of the passage of time or the size of their coffins.  Underneath all the pretensions is a sadistic, superstitious mind.




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NY lawmakers back frog as official state amphibian

FrogConsidering that the Official State Reptile of New York is the snapping turtle, it’s not surprising that the question of where to award the title of  Official State Amphibian should be the subject of vigorous debate in the final sessions of the Senate. By a single vote margin, the wood frog scored the honor over stiff competition from the bigmouthed salamander, the two-tongued toad and Governor Cuomo.

As usual, it was the upstate interests that carried the day.  Ms. Menna’s 4th grade class of Skaneateles, NY, railroaded the bill through, arguing  that the batrachian “freezes in the winter and reanimates in spring,” an ingratiating reference to the habits of  our lawmakers.

Senator Bonacic-R darkly hinted at an anti-development conspiracy. “When you elevate a species in the State of New York. . .  you empower the DEC with a weapon to use for a wood-frog zone. You can’t build here or you can’t do something there.” If his name sounds familiar, he’s the senator who predicted that the sky would fall down if Jenny Rivera were appointed to the Court of Appeals.

The wonder is how New York has managed to function for so long without an official amphibian. It’s no excuse that no one after fourth grade remembers exactly what an amphibian is.

Every visionary idea has its nay-sayers. Two senators from Queens sneered at the vote as “asinine” and at rana sylvatica as “extremely small” and “ugly.”  Let them be exiled to the wood-frog zone for re-education in species sensitivity!

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