Happy Lunar New Year 2020: Year of the Rat

The rat is first in the Chinese Zodiac because, according to legend, he was the first to arrive at the Jade Emperor’s party (and probably the last to leave). Despite pervasive negative stereotypes, rats have many admirable qualities.  They’re clever and sociable, not easily discouraged and will persevere through any maze to get to the cheese. An example to us all.

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The Sex Offender Bus

Last week the Guv issued a proposal to fix NYC’s crummy public transport by banning Level 3 sex offenders from using it.  This is apparently aimed at guys on crowded subways who can’t keep their hands and other appendages to themselves. Well, it’s an easier solution than making the MTA do something about overcrowding, such as run more trains.

And maybe the Guv’s interdiction will make the trains less crowded, considering that there are  2,000  people in NYC classified as Level 3.  Level 3 means that a judge has determined, though not by any rational method,that they’re likely to commit a sex offense.

Here’s how the gubernatorial solution came about:

Scene: Ad Hoc Meeting of the Governor’s Task Force Bipartisan Action Committee  Behind Closed Doors at Jack’s Oyster Bar.

Assemblyman Tomato: Can you believe, the wife and I just took a trip to the Big Apple and we couldn’t get a subway from Times Square to Yankee Stadium?  Because of “Planned Service Changes,” meaning there were no trains.

Senator Crackerjack: Yes, it’s a multibillion dollar program for not running any trains on nights, weekends and during midday. It’s called Fast Track.*

*We’re not making this up.

Governor’s Aide: The problem is all those sex offenders.  Mothers for Megan’s Law has drafted a bill to solve it by banning them from buses and subways.

Assemblyman Tomato: Fortunately, Senator Crackerjack doesn’t ride the subway.

Senator Crackerjack: Shut up, Vito. I haven’t been indicted yet.

Assemblywoman Pickle: How will they be identified as sex offenders?

Governor’s Aide: They’ll be required to get radioactive tattoos that set off alarms at the turnstile.

Senator Shoe: But they’re required to register every 90 days at the Sex Offender Management Unit on Centre Street, which is way the hell downtown.*  How are they supposed to get there?

We didn’t make that up either.

Assemblyman Tomato: If the Little Woman and I could walk from Times Square to Yankee Stadium, they can can walk to Centre Street from whatever outerboro shelter they’re living at.

Senator Crackerjack: What? And pass by all those schools full of vulnerable populations?

Governor’s Aide: Citibank has offered to supplement its fleets of blue rental bicycles with special sex offender scooters. Painted red, of course.

Senator Crackerjack: Same problem. Think how attractive a red scooter would be to the kiddies. I’ll never forget the one I had as a boy. It was called Rosebud —

Assemblywoman Pickle: But most Level 3’s aren’t offenders against children. Or against strangers either, for that matter.

Assemblyman Tomato: What’s that got to do with anything? Mothers for Megan’s Law says they’re a danger to public safety.

Governor’s Aide: How about giving them jetpacks so they can fly direct to Centre Street without going near any schools?

Assemblyman Tomato: Sounds expensive. What about a balloon?

Senator Crackerjack: I have it! A mobile registration unit! We’ll refurbish some old Mister Softee Trucks and change the tune to “I’ll Be Watching You.” They’ll drive around the neighborhoods and anyone who’s Level 3 has to come out and register.

Governor’s Aide: Brilliant! That way everyone in the neighborhood knows who they are. In case they forgot to look them up on the Internet.


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

Head for the hills, discovery reform arrives with the New Year!

New Year 2020 is upon us, and we all know what that means: [chiller typeface] the new discovery laws take effect!

“Discovery” is legal jargon for letting the accused know who’s accusing him-or-her of what. It means, if you remember My Cousin Vinnie, that the prosecution tells the accused who the witnesses against him are. Which enabled Vinnie to find out, in time to demonstrate to the jury, that the main eyewitness was as vision-impaired as a bat.

How fortunate that Attorney Vinnie was defending his innocent cousins in one of those backward Southern states. Because if he’d been in New York, the discovery laws would have allowed the prosecutor to withhold the witnesses’ names until the morning of trial.

That’s supposed to change as of January 1, 2020. Under the new law, the prosecution will have to cough up pronto the names and “adequate contact information” for its witnesses. Meaning anyone with relevant information, not just the ones they decide to call at trial.

The prosecutorial howling that’s going up! Or, as our progressive female-pronouned head of the criminal practice put it – the hysteria!

Here are the nightmares envisioned by the DA’s:

Prosecutor Nightmare #1:

Cop #1: Look, there’s a perp beating up a vulnerable person!

Cop #2: Leave him alone, Paddy. Under the new discovery laws, if we arrest him, our names and work affiliation will be disclosed to the defense lawyer.

Cop #1: Heavens to Betsy!  We’d better not make any more arrests!

(Civilization descends into chaos).

Prosecutor Nightmare #2:

Prosecutor: (to supervisor) The suspect was caught pickpocketing in Yankee Stadium during the final game of the World Series.

Supervisor: Well, you’d better get busy, because the new law requires you to interview everybody who was there that night.

(DA’s Office collapses due to drain on its scarce resources).

Prosecutor Nightmare #3:

Defense lawyer:  (to client) You’ve been charged with selling umbrellas in Times Square without a license.

Client: I was merely standing around with a shopping cart full of umbrellas. It just happened to be raining.

Defense lawyer: Not to worry. Thanks to the new discovery laws, I have your accuser’s adequate contact information. He’ll wake up tomorrow morning with a horse’s head in his bed.

(Civilization descends into chaos as nobody dares report a crime).

Besides threatening to get protective orders for every witness, the DA’s offices have come up with a device called WITCOM. When a defense attorney is assigned to a case, the prosecutor requires her to register by sending her name, contact information, a “description of the issue” and “any applicable screenshots.”  The attorney is then allowed to contact witnesses on her cell phone after being “assigned a proxy number so witnesses will not see your real number and you will not see theirs.”

The WITCOM website provides a sample of how it’s supposed to work:

Defense attorney: (texting) Hello, I’d like to talk to you about a case you’re a witness on.  When would be a good time for us to talk?

Witness: Tomorrow at noon would be good.

Defense attorney: Okay, I’ll call you then, thanks.

Of course it’s not going to work like that. More likely:

Defense attorney: Hello, [etc.]

Witness:  Who the hell are you?

Defense attorney: I’m the attorney for Joe Shmo. You know, the guy you identified from that unnecessarily suggestive lineup whose face is forever imprinted, etched and chiseled into your memory.

Witness: What kind of lawyer makes anonymous phone calls?  I never heard anything so fishy in my life. Take a hike.

New Year 2020 small



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Annals of Social Injustice: Affluent People Drinking Rosé in Central Park

You have four felonies and a slew of misdemeanors under your belt. Being a New Yorker, it hasn’t escaped your attention that there are lots of cops in Times Square, not to mention a precinct house under a gigantic neon sign saying NEW YORK POLICE DEPARTMENT.

You reckon this is a good place to stand on the street drinking alcohol from a brown paper bag.

With your pockets full of counterfeit money and cocaine.

You’re astonished that the cops get curious about what you’re drinking. And since you didn’t bring along any proof of address, you can’t get off with a ticket. You’re arrested and searched.

You display your street smarts by telling the cop, “I will give up who I got the currency from, the counterfeit bills from, if you make the drug charges go away.”

There’s a question about whether standing in Times Square with $300 in funny money is proof of intent to use it. The jury thinks it is. But since you weren’t seen passing the bills, you get the minimum sentence.

The Court of Appeals affirms the conviction.

Except for Judge Wilson, who considers this an egregious example of police pursuing “quality of life violations that disproportionately affect the poor (not merely those committing the infractions, but their families, neighbors and communities).”

Then, after an adorable aside about what an indulgent daddy he is to his spendthrift teenage daughter, he lectures the majority on elementary principles of relevance. With humorous examples.

His parting salvo:  “None of that would have happened had [the defendant] been affluent, drinking rosé with a chilled lobster picnic splayed out on Central Park’s Great Lawn on a sunny summer afternoon.”

Showing that he knows even less about Central Park than Times Square.

Scene: Central Park’s Great Lawn, patrolled by Parks Dept. cops and Park Rangers in Smoky-the-Bear hats.

Winthrop Rothschild III: I say, Gloria, let’s exercise our affluent capitalist white privilege and splay out a chilled lobster picnic with rosé.

Gloria Newmoney: That would be very wrong, Winthrop. The only way to test Judge Wilson’s hypothesis is by having comparable facts. So we have to drink it out of a brown paper bag.

Winthrop Rothschild III: Whatever you say, darling. I forgot to bring napkins but we can use these real $100 bills instead.

Gloria Newmoney: Oh, snap, here come the Park Rangers.

Winthrop Rothschild III: Quick, let’s run!

Park Rangers tackle them.

Park Ranger: We can’t let you off with a ticket unless you have i.d.

Gloria Newmoney: No problem, officer. Thanks to our undeserved privileges in this inequitable society, we carry i.d. and leave our contraband home.

Park Ranger: (examining the rosé) This is a terrible vintage! You’re under arrest.

Affluent people drinking rosé with a chilled lobster picnic on a sunny summer afternoon

Addendum: Midnight on New Year’s Eve found us in Prospect Park watching the fireworks and drinking champagne – okay, French sparkling wine – out of jam jars. Not a cop in sight. They were all in Times Square policing tourists of color, i.e., with deep  red beer-faces.

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Is it silly to demand transparency from appellate courts?

We’re always grousing about how courts deny our appeals without reading our briefs, but a recent Supreme Court cert denial showed that’s a heap of ol’ catfish compared to what goes on in Louisiana.

The scandal broke back in May, 2007, with the suicide of a senior clerk in the 5th Circuit Court of Gretna, Louisiana, an intermediate state appellate court.  He left the following note, addressed to “All the Judges” :

For probably the past 10 years, not one criminal writ application filed by an inmate pro se has been reviewed by a Judge on the Court.

I prepared the ruling on each of those writ applications, and they were signed by a Judge without so much as a glance at the application.

In fact, two of the judges on the writ panel never even knew the pro se application was filed, much less aware of the application’s contents.

When the pro se application arrived in the mail, I opened it, prepared a ruling, and sent it to the Clerk’s Office for filing. When the application returned to the Central Staff after filing, the ruling was already prepared. It was typed on the application and the application was signed by a Judge without so much as a glance. The total turnaround time was usually one or two days.

Peterson’s method was to compile a numbered list of fifteen possible reasons for denial. For each pro se writ, he would pick a number, attach it to the writ with a sticky note and send it to Roz and Tina [women court staff never seem to have last names] who would type up the response corresponding to the number.

It was obvious that these pro se criminal writ applications were not being reviewed because of the quick turnaround time. Moreover, although research memos are prepared for counseled criminal writ applications, a research memo for a pro se criminal writ application has not been prepared for probably 10 years.

You were more than content to let me handle all pro se writs so you would not have to bother with them. Also, the large volume of pro se criminal writ applications inflated the Court’s workload figures – even though no judge was involved in the handling of the writ (beyond signing a name).

One other attractive feature of the pro se writ handling system was the money it raised for the Clerk’s Fee Fund. For each pro se writ application in a criminal case, the Court charged and received a fee of $300.00 from the parish where the criminal case was pending. The Clerk’s Fee Fund swelled from the money. 

The court made a total of $75,000 from these writs during the 13-year period this went on.

According to the Louisiana Times-Picayune, the Gretna Court Chief Judge withheld the suicide note from the police until urged by his fellow judges to turn it over.  Because of course, the clerk was smart enough to send it to others. When the sham finally went public, the Louisiana Supreme Court was flooded with complaints from the prisoners whose writs had been decided by number.

The Gretna Court’s response was to ask the Louisiana Supremes to send the petitions back to them “for re-review.” To the same pool of judges involved in the list-and-sticky-note procedure. The Supremes obliged.

You’ll be astonished to learn that none of the writs were granted. This is apparently how the Gretna Court’s “re-review” went:

Chief Judge: Looks like that dirty little sapsucker pissant went and smeared our fine court with some trash talk. We’re not putting up with that, no. We’re going to thoroughly review each and every one of those 300 writs.

Roz and Tina: Mais!*

Chief Judge: That means you ladies go through them and change around the sticky notes.

Roz and Tina: Laissez les bon temps rouler!

*Louisiana-speak for “holy shit.”

Fast-forward to December, 2019, when Louis Schexnayder, serving a life sentence for a dubiously-obtained murder conviction and one of the 300 prisoners whose writs were denied by Roz and Tina, got all the way to the doorstep of the U.S. Supreme Court. Only to be turned away on a technicality. The best he got was a sticky note from Justice Sotomayor saying that the Louisiana Supreme Court’s decision to send the writs back for “re-review” by the same pool of judges “raises serious due process concerns.” Ya think?

How can we be sure the same thing doesn’t go on in our appellate courts?  Even for lawyered-up criminal appeals, the decisions are based on bench memos we never see, written by nameless clerks. We’ve even been told by a retired judge — who thought nothing of it — that if the clerk thinks the conviction should be affirmed s/he drafts the decision. Are they “signed by a Judge without so much as a glance”? How can we possibly know?

Of course our  courts would never stoop to using sticky notes based on a numbered list of reasons for denial. Cutting and pasting is far more efficient.



Posted in Appellate advocacy, Criminal Defense Appeals, Criminal procedure, Judges, Law & Parody | Tagged , | 2 Comments

“Your question has nothing to do with this case, Judge.”

How many times have you sat through the judges’ introductory blabberation at oral argument about how you’d better make it snappy because “We’ve read your briefs” and “We actually do know the law” (dutiful laugh from the sycophants), only to be faced with a panel that’s totally clueless about your case?

The “Appeals with Attitude” award of the year goes to Attorney Brassballs who, as recorded on court listener.com started off his argument in the Second Circuit with, “I think our briefs were rather thorough and addressed all the issues, at least to my satisfaction.  So my question to the Court is, ‘Are there any questions?'”

One of the three judges answers, “No,” evidently relieved to have one less argument to sit through.

But Judge Denny Chin, sensing some lèse majesté,  (“addressed all the issues to my satisfaction”)?  doesn’t let this go by.

The case is about the process lawyers have to go through to be admitted to practice in federal court. This is what the Second Circuit has time for? While our incarcerated clients’ habeas petitions gather dust in chambers file cabinets? But we digress.

“What’s the injury?” asks Judge Chin. “If your client doesn’t like the affidavit he can go get another one.”

This was apparently not on point, because Lawyer Smartmouth retorts, “Are you serious, Judge? With all due respect, that has nothing to do with the case.”

“Siddown,” opines the judge.

“Okay, thank you. I see that you read the briefs, Judge.”

“Inappropriate, disrespectful and discourteous!” hollers the judge.

The smirking Government lawyer strides up to the podium. “Plaintiff raises no issue of law. . . .  Unless there are any questions. . .”  He can hardly wait to get back to the office to tell the guys.

But Lawyer Chutzpah wants rebuttal.


Sometime after we started writing this post, that part was bowdlerized from the courtlistener audio. Which doesn’t change the fact that the lawyer was kicked – er – escorted out of the courtroom.

According to the NY Law Journal, he’s bloody but unbowed:

In an interview hours after the hearing, Bank said he could have been more cordial, but he didn’t regret his comments to Chin. “Judge Chin’s point—it certainly indicates he didn’t know what the case was about,” Bank said. “Ninety percent of the case was what [my client] objected to, rightly or wrongly: The steps he would have to go through to even get the affidavit.”

Couldn’t he have explained that to Judge Chin instead of waiting to be interviewed by some parakeet-cage-liner newspaper?

“Oh, I see,” the judge would have said. “Silly me, it’s not about whether your client doesn’t like the affidavit, it’s about the labyrinthine process he has to go through to get one. We can’t thank you enough for clarifying that.” 

But as they say, there are three oral arguments: the one you plan to make, the one you make and the one you realize afterwards you shudda made.


Posted in Appellate advocacy, Law & Parody, Satirical cartoons | Tagged | 3 Comments

Not your law office? Click here.

“Star Trek” is of course a metaphor for office life, where creatures from different galaxies have to tolerate one another to keep the spaceship going.

Can you identify these species?:





Posted in Humor, Law & Parody, Satirical cartoons | 2 Comments