More Client-Centered than Thou

Client Satisfaction Survey hearing If you ever want to liven up a dull CLE, just ask your audience, “How do you deal with a client who wants you to do something that you know would sink their case?”  People who’ve been totally comatose until that moment will lift their noses out of their I-phones and start baying, “I’ve been practicing law for 30 years, and I would NEVER. . .”  “I’ve been a public defender all my life, and I would  ALWAYS. . . ”

Add to the hypothetical that the client is a juvenile or otherwise mentally underserved and they may start throwing chairs.  There’ll be heated speeches on Equality, Autonomy and the Evils of Paternalism, followed by retorts that if clients had good judgment they wouldn’t have ended up as clients.  And somebody will inevitably unfurl the banner of CLIENT-CENTERED REPRESENTATION.

Since that seems to be our kommandant’s favorite slogan, we decided to find out what, if anything, it means.  According to our go-to sources, Wikipedia, Elevator Captivate Network and Gus the deli guy,  Client-Centered Representation (CCR) is a spinoff of Carl Rogers’ Person-Centered Therapy (PCT) which, in contrast to chilly Freudian psychotherapy, requires the analyst to provide the client with Unconditional Positive Regard (UPR).  Applied to the attorney-client relationship, it means you take on all their problems instead of hiding behind the elitist legalistic facade of Just Winning Their Case (JWTC).

CCR has trickled down to City Hall which, never one to let a bandwagon pass it by, has proposed a bill requiring City-funded providers of  legal services to the indignant to hand out “Client Satisfaction Surveys.” The City figures that since it’s forking out 3.5 million clams a year to these outfits, it’s only natural to ask what their customers think. Or, as the Committee Chair attractively put it, “make sure the taxpayer gets the biggest bang for the buck.”

The Committee heard testimony from the Capos of the various legal services outfits, including our dominatrix.  Lamping the hearing minutes, we were horrified to see they were created by a sinister cabal called “Worldwide Dictation,” which automatically transcribes “going to,” “want to” and “kind of” as “gonna,” “wanna” and “kinda,” making everbody sound like the L’il Rascals.

The honchos vied like King Lear’s daughters to see who could profess the most adoration for Our Clients.  Why, they chorused, we’re thrilled to hear client complaints about us! So important “to elevate client voices and honor their experiences!”

But laying aside their customary jostling for the funding trough, they congealed into a solid mass at the notion of handing out Client Satisfaction Surveys.  “We look forward to partnering with the City,” cooed our boss, for whom we feel no UPR. “But first we need a Task Force of Diverse Community-Based Stakeholders and a big fat Research Grant to Study the Issue in more depth.” “Client surveys are transformative!” gushed a rival Cheese. “But our organization pioneered the idea long ago, and we can certainly tell the City how satisfied our clients are without an additional survey.”

The Outer-Boro types were more candid. “We don’t even have funding for paper clips and you want to spend money on a survey?” backtalked one. “Nobody fills out surveys except disgruntled cranks. It’s not our fault the system sucks.”

Resolved: They didn’t wanna and they weren’t gonna.

 

 

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

Judge Weinstein at the Brooklyn Historical Society

Judge WeinsteinWe temporarily suspended our judge-panning policy the other night to go see Judge Jack Weinstein of the Eastern District (that’s Brooklyn and some minor surrounding territories). He was at the Brooklyn Historical Society, and not in a glass case either.

Back in the ’80’s, when everything from teenage uppityness to tornadoes in the Pacific was attributed to drugs, the obvious answer was to enact mind-bogglingly long mandatory sentences for “drug pushers.”  In 1993, Judge Weinstein wrote in the NY Times that the sheer quantity of drug prosecutions had put the justice system in crisis.  His district alone was annually sentencing hundreds of “drug mules,” mostly poor people from Nigeria and Colombia “cheaply hired for one trip,” to years and years of prison.

He was immediately lambasted by Senator Phil Gramm. The average murderer, said Gramm, can expect to spend only 1.8 years in prison! For rape, the expected punishment is 60 days! Is it any wonder that our nation is deluged by a tidal wave of crime?  It’s all very well to blame TV and the failure to teach moral values in our schools, but the main culprit is soft sentencing by judges like Weinstein!

A year or two later, the Judge started a seminar on drug law reform, inviting students not only from Columbia Law School where he’d been a professor of evidence for  years, but also from own Acme School of Law and Refrigerator Repair. We met in his chambers every Thursday afternoon where he hospitably provided sodas while we listened to lectures by an assortment of thinkers about the War on Drugs.

We particularly remember a federal prosecutor gleefully describing the gadgets that her office had bought with drug forfeiture money. “We have infra-red binoculars that are so powerful,” she said, pointing out the window to the Brooklyn Bridge, “that if someone’s standing there with a newspaper, we can read the print.” The Judge suggested that it might be a teeny bit unconstitutional for prosecutors to get financial benefits from enforcing the drug laws, but so far nobody seems to have taken him up on that.

Another lecturer, a smug European intellectual in corduroy pants, assured us that crime was, of course, a purely social construct.  After he was mugged on the Brooklyn Bridge while the Feds were too busy reading newspapers through binoculars to notice, he wrote to the NY Times, angrily protesting that the American system is soft on social constructs.

One Thursday afternoon, we trooped into the courtroom to watch the sentencing of a man who’d flown up from Colombia with a balloonful of cocaine in his digestive system. A cheerful youth, he told the Judge how he’d spent his time at the federal detention center learning English and getting in shape. “My wife will be pleased,” he said, showing the Judge his biceps.

“What made you decide to smuggle drugs?” the Judge asked. He really wanted to know.

“In Colombia they told me it was no big deal,” the man answered. “They said everybody in America badly wants drugs and would be glad to have them.” Good thing Senator Gramm wasn’t there.

Our final class was on a chilly winter Sunday at the Judge’s home on Long Island Sound. We sat at his dining room table presenting our proposals for drug law reform. The Columbia students, who’d all earned two or three Ph.D’s before going to law school, presented highly intelligent, exhaustively researched, utterly eye-glazing papers. We Acme students, recognizing that the life of the law is not logic but experience, chose topics like, “A Friend’s Experiences on LSD.”

Our own paper was a parody, naturally, about a society where cars are illegal because they cause so many deaths. The point being that it’s Prohibition, whether of alcohol or drugs, that makes them dangerous. Our presentation was received in sober silence. Just as we were about to sink into the floor, a loud voice came  from the other end of the table. “HA HA HA HA HA!” boomed the Judge, slapping his thigh. “HA HA HA!” The others finally joined in.

After several more hours of papers, he suddenly got up and opened the glass door to the patio. “Quick, quick, come look at this!” he said. We crowded to the door, expecting the worst. He was pointing to the sunset over the Sound and the ducks gathering on the water for the night.

We didn’t see him again for 20 years, until the other evening at the Historical Society. At 95, he’s as active as ever on the bench and his judicial biography would fill volumes. Now that drug law reform is conventional wisdom and “sex offenders” have replaced drug pushers as Public Enemy #1, he’s writing decisions suggesting that decades in prison for looking at child pornography might be extreme. The only visible change in him was that his eyebrows had grown into fuzzy white caterpillars and he walked with a cane.

He talked about growing up in Brooklyn in the ’30’s, remembering the open trolley cars and the ships in the harbor. He admitted to coming from a lawless family: His grandparents fled Russia to escape arrest in 1905. His father, after being laid off from his job, provided the family with food that “fell off the back of a truck.” But if you went fishing off the coast of Brooklyn back then, why, the fish just jumped into the boat!

He talked about how fortunate he was to have a “completely free” education, working for the Al Burns trucking company 60 to 70 hours a week and studying the Greek philosophers at Brooklyn College at night. Al would drive him to class, give him time to study for exams and overlook his failings as an employee, such as forgetting to close the safe.

In the Q&A session, someone asked about his well-known fearlessness of being overruled. “I really don’t care,” the Judge answered. “But sometimes I make mistakes and should be overruled.” He recognized that there has to be “a disciplined legal system,” but at the same time, that he couldn’t go along with unjust laws. Otherwise, he’d be like the pre-Civil War judges who upheld slavery because it was the law. The challenge was “how to get that play in the joints” of the legal system. Fortunately, he said, he has “brilliant law clerks who can explain to me how I can distinguish prior cases.” That got a big laugh.

Asked what he was proudest of, he answered, “Being able to get up in the morning.” He wrapped up by saying how much he loved his work, and his delight was palpable. “I’m glad I was rejected for Chief Judge of the NY Court of Appeals,” he said. “I would have had to retire at 70 and what would I have done with myself for the last 25 years?”

We went out into the cold Brooklyn night feeling that maybe it’s not so disgraceful to be a lawyer after all.

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

Can Lawyers Be Robots?

Law too complex for AI.cropped

Data Star Trek

According to a new study entitled “Can Robots Be Lawyers?”  the answer is no, because legal work involves talking to your client and going to court. The study refers to this as “unstructured human interaction,” which is putting it mildly.  But we think its conclusion is an unwarranted slur on robots, who are perfectly adept at human interaction, structured or not:

Robbie the Robot advises a client to plead guilty

Robbie advises a client to take a plea

The day the Earth stood still

Gort notes his appearance

Metropolis Maria

Maria makes a typically circular argument

HAL

ADA HAL refuses to offer a plea

Scene: Starship Enterprise Appellate Division.

Captain: Have you finished deciding those appeals, Data?

Data: Only 500 more left, Captain. I should be done in ten minutes.

Worf: How do you do that, Data?

Data: I’ve been programmed with a complete set of constitutional principles, which I check against the trial proceedings. Based on my algorithmic comparisons, they’re completely incompatible. The convictions have to be reversed.

Captain: What? The Romulans will never agree! Can’t you randomly affirm a few?

Data: I’m afraid my programming – –

Yoda: Defendant entitled to fair trial, not perfect trial.

Worf: Get lost, Yoda, this is Star Trek.

Captain: (picking an appeal at random). Here, affirm this one. The prosecutor told the jury that the defendant sold drugs lots of times before, so he’s obviously guilty.

Yoda: When you put your interests above society, society put its interests above you.

Data: I wish I could oblige, sir, but my programming prevents me from upholding a conviction based on nothing but propensity.

Yoda: Due process flexible standard, not mechanical yardstick.

Captain: That’s your limitation as a robot, Data. If you were human, you’d understand that applying the law means saying one thing and doing the opposite.

Data: That seems most inefficient, sir. But I will endeavor to adjust my programing (whirring noises).

Captain: Here, affirm this one. The judge took a guilty plea without explaining to the defendant what rights he was giving up. Says right here he had a lawyer, so he obviously knew his rights without needing to have them explained by a judge.

Yoda: No need for rigid catechism, ritual litany.

Data: Very well, I’ll adjust my programming again (grinding noises).

Captain: And these SORA appeals. All of these people should be elevated to maximum risk level based on the egregiousness of the crime!

Yoda: SORA not punishment but to protect public safety.

Data:  But that’s incompatible with – – incompatible with – – incompatible with – – (singing) Daisy, Daisy, I’m half crazy all for the love of yoooo – –

Worf: Captain, he’s breaking down!

Captain: It just goes to show – legal work is just too complex for robots.

Posted in Criminal Defense Appeals, Humor, Law, Law & Parody, SORA | Tagged | 4 Comments

JUDGE WOOL TAPPED FOR HIGH COURT CHIEF, VOWS REVERSAL QUOTAS

Judge Wool in NYCA

The Governor stunned friend and foe alike today by announcing an unprecedented about-face in his pick for Chief Judge of the Court of Appeals, ditching former nominee Suburbia County District Attorney Flowerpot and giving the nod to Judge Wool.

“Judge Wool is one of the finest jurists in this great State,” said the Governor to a cheering crowd at Metropolitan Correctional Facility where the Legislature is now housed, “for what that’s worth.”

“Despite being symbols of wisdom, owls are historically underrepresented in the judiciary,” he added.

Asked why he’d withdrawn his nomination of DA Flowerpot, the Governor looked sheepish. “I mistook her for Hillary Clinton,” he admitted. “Blondes all look alike to me.”

Judge Wool was eager to share his reform agenda. “The way it is now, appellate judges have no incentive to reverse, no matter how outrageous the error,” he said. “Unless it’s a People’s appeal or the defendant is a cop. That’s got to change. Just as the police have arrest quotas, judges will now have reversal quotas.”

The judge promised swift retribution for foot-draggers.  “They’ll be sent to a Constitutional Offender Treatment Center until they can demonstrate they’re no longer a danger to public safety,” he said. “Their photographs will be published on the Internet Constitutional Offender Registry.”

Although the move was generally applauded, there were some skeptical voices. “Given Judge Wool’s background as an owl, his so-called reforms could unfairly impact the mouse community,” warned Mickey and Minnie.

“This is an outrage,” fumed DA Flowerpot. “As Chief Judge, I would have streamlined the process by requiring proof of innocence as a condition of getting leave to appeal. Why should we waste scarce judicial resources and tax dollars on appeals by criminals?”

Judge Wool was unperturbed. “I have the highest regard for mice,” he said. “They’re delicious. As for what DA Flowerpot thinks, I couldn’t give a hoot.”

 

 

 

Posted in Humor, Judges, Law & Parody, Satirical cartoons | Tagged , | 4 Comments

Ferreting out the 4-year olds

When Mayor de Blasio inaugurated free, full-day prekindergarten classes citywide in 2013, the analysts helped pinpoint thousands of eligible 4-year-old children by cross-matching birth records, anonymous social-service information and commercial marketing data for diaper services. –  Wall Street Journal.

Pre-K surveillance

Scene: Police station. Giant map on the wall. Men in shirtsleeves and suspenders striding briskly in and out through  frosted-glass doors.  Berwilda, the only woman, sits at a computer. Suddenly an alarm goes off and the screen flashes.

Berwilda: Hey, boys, I think we’ve got one! Marketing data from diaper services has just come through!

Everybody: (Crowding around the computer) Where, where?

Berwilda: (Pointing to the screen) Here’s where the signal’s coming from.

Riley: Aw,  that’s the place we busted yesterday.  False alarm. Just a woman buyin’ Pampers for her old poodle.

Boris: (Darkly) For what she said was her old poodle.

Riley: You mean — it could have been a 4-year old in disguise?

Tyrone: Only one way to find out. Get Confidential Informant #A4590 on the phone.

Berwilda: Yessir. (Dials phone).

Speakerphone: Lollipop Garden Anonymous Social Services, may I help you?

Riley: We need some data chop-chop.

Lollipop: What did Little Miss Muffet sit on?

Riley: What the hell’s that supposed to mean?

Tyrone: That’s the security question, dummy.

Riley: Oh. Uh – a wishing well?

Lollipop: Wrong.

Riley:  (To the others) What did  *%# Miss Muffet sit on?

Lollipop: You get one hint. It rhymes.

Boris: I know!  A fluffet.

Lollipop: Wrong. Whoever heard of sitting on a fluffet?

All: Pluffet? Shuffet? Zuffet? Ruffet?

Lollipop hangs up.

Tyrone: Well, boys, I guess you know what this means. It’s an all-nighter of cross-matching birth records.

Boris: Why don’t we just bring in the poodle? They won’t suspect a thing until it starts first grade.

All concur.

Posted in Civil Liberties, Law & Parody, Satirical cartoons | Tagged , , | 2 Comments

Videotaping Interrogations: The Court of Appeals Blows It

 

Ct Appeals covering eyes

Ten years ago the Massachusetts high court, fed up with hearing “repeated pronouncements” about the fabulous benefits of recording police interrogations, decided to do something about it. Commonwealth v. DiGiambattista (2004).  Cops don’t record interrogations? Fine. But if the prosecution comes waltzing into court with nothing but Detective Blow’s “recollection” that the defendant (after some conversation)  confessed to the crime — then they haven’t met their burden of proof.

In Massachusetts, as in New York, a confession is inadmissible unless the prosecution proves that it’s voluntary beyond a reasonable doubt.  When a suspect starts out denying guilt and ends up confessing, the obvious question is, what did Detective Blow say or do to make him change his mind? The detective may swear up and down that he didn’t make threats or promises, and maybe he really believes that, but as the NY Court of Appeals said in the context of proving probable cause to arrest, the prosecution has to provide “facts, not assurances.”  And the only way to provide complete, reliable facts about the interrogation is by recording it.

The Baked Beans stopped short of holding that unrecorded confessions are inadmissible. Instead they ruled that the defendant is entitled to have the court tell the jurors that they could, if they wished, conclude from the absence of a recording that the prosecution had failed to prove voluntariness beyond a reasonable doubt, and therefore not consider the confession.

And you know what, Ladies and Gentlemen? The police started videotaping interrogations!

The NY Court of Appeals recently had the chance to do the same and blew it. People v. Durant (NY 2015). The decision, taken almost entirely from the amicus brief of the NY State District Attorney Junta, mischaracterizes the defendant’s argument as a proposal to “invariably” “compel” a court to “automatically” give an adverse inference charge “in every case” without a recorded confession. It then diverts the issue into the cops’ motives for not recording. According to the court, the cops had “no idea” that they were creating evidence for the prosecution when they isolated 22-year old Everett Durant in the interrogation room, handcuffed him to the table, told him he was facing serious charges, responded to his denials by saying it could be in his best interest to talk, and that if he didn’t, his side of the story would never come out. (The latter facts being omitted from the decision). Therefore, says the court, the cops’ failure to record was simply “an innocent oversight” or “a legitimate adherence to a neutral departmental policy.” For which it would be terribly unfair to “penalize” the People.

If the court had taken its nose out of the DA Junta’s brief long enough to fairly consider the defense argument, it would have seen that it’s not about what the cops do or don’t do, but about the People’s meeting their burden of proof.  For all we care, the cops can sit around conducting unrecorded interrogations til the cows come home. The issue is whether the People can claim, let alone prove beyond a reasonable doubt, that the resulting confession was voluntarily made, based on nothing but Detective Blow’s word for it.

The decision concludes with assurances that there are many “worthy proposals” kicking around for the recording of police interrogations. But not even the Junta’s brief describes any actual practice of recording police interrogations except to say that police agencies have swallowed over $3 million to buy equipment.  The court thinks we should wait for the passage of Assembly Bill A7063 requiring the cops to record interrogations if it’s not too inconvenient. If you look up the bill, you’ll see it’s designated as “referred to Codes” –legislative-speak for stuck in the Sargasso Sea.

Years of worthy proposals and “repeated pronouncements” are all the more reason for the NY high court to say, as their Massachusetts brethren and sistren did, enough with the chin music. Maybe we can’t tell the cops what to do, but we can certainly tell the jury how to weigh dubious evidence that it might otherwise overestimate.

Still, the decision leaves open the argument that in your case, if Detective Blow doesn’t remember everything that was said, his testimony doesn’t amount to a hill of beans, let alone proof beyond a reasonable doubt that the confession was voluntary. Move for suppression, and if you don’t get it, move for that jury instruction. As our yoga tape advises, “The key to lasting success is to keep at it.”

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

Appellate Squawk’s Murder Mystery

Harry in deli

Introducing 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 https://appellatesquawkmurdermystery.wordpress.com/

 

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