Time for courts to put their money where their mouth is about eyewitness misidentification

Judges singing with caption

Courts make a lot of chin music about the perils of eyewitness misidentification.  But when it comes to scrutinizing the suggestiveness of lineup procedures. . .

Cop taking oath with crossed fingers

. . . everyone is expected to take the cops’ word for it that they didn’t tell the witness who the suspect is.

Showing photo array

When the cops have other evidence – a DNA match, for example – they see no reason not to help the witness i.d. the “right” guy.

Purple People Eaters in lineup

Courts frequently chuckle that “police stations are not theatrical casting offices.”  Or that the fillers don’t have to be the suspect’s “identical twins.”A difference in skin color, for example, is only one factor to be considered and doesn’t make the lineup suggestive.

Paper bag lineup

If the suspect has a distinguishing feature — a moustache, for example — which the fillers don’t have, the police can cover up the difference. Courts are firmly convinced that height differences are invisible if everyone is sitting down. Apparently they never go to the movies.




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

Guest post: Proposed Additions to the NY Penal Code

From NYC-area due process enthusiast, Anna Pervukhin:

Proposed Additions to the New York Penal Code 

  • 42.50 Homelessness

A person is guilty of homelessness when he appears to be homeless AND either

(a) emits sounds (including, but not limited to, speaking) or,

(b) gesticulates with arms in an obtrusive manner.

  • 42.60 Homelessness in the first degree

A person is guilty of homelessness in the first degree if he is guilty of homelessness in violation of section 42.50, above, and possesses or transports missing teeth. For purposes of this section, a “tooth” shall be defined as one of a set of hard, bonelike structures rooted in sockets in the jaws of vertebrates, typically composed of a core of soft pulp surrounded by a layer of hard dentin, coated with enamel and used for biting and chewing, or as a means of attack.

  • 42.70 Homelessness in the first degree, hate crime

A person is guilty of homelessness as a hate crime if he is guilty of homelessness in violation of section 42.60, above, AND possesses or transports a plastic bag. 

  • 77 Possession of a Criminal Record

A person is guilty of possession of a criminal record when he knowingly and unlawfully possesses one or more rap sheets.

  • 77.10(a)(1) Possession of a Criminal Record, no defense

It shall not be a defense to Possession of a Criminal Record, section 77, above, that the rap sheet does not actually belong to the person charged with violation of section 77, above, but rather had been stuffed inside the pocket of a jacket he happened to borrow. 

  • 240.90 Being In The Wrong Place At The Wrong Time 2°

A person is guilty of Being In The Wrong Place At The Wrong Time in the Second Degree when he voluntarily remains within view of NYPD police officers and either intentionally or unintentionally creates within their hearts an irresistible urge to use handcuffs, fill out paperwork or collect overtime pay.

  • 240.91 Being In The Wrong Place At The Wrong Time 1°

A person is guilty of Being In The Wrong Place At The Wrong Time in the First Degree when he has violated Section 240.90 and at the time, he either:

(a) is absolutely just minding his or her own business, or

(b) was en route to a bodega for the express purpose of buying pampers, baby formula or cigarettes.

  • 645 Aggravated Negritude

A person is guilty of Aggravated Negritude when he appears to be a person of color within 1000 (1000) feet of any building, structure, athletic playing field, ice-cream truck, or playground within the real property boundary line of any private or public entity. Or any other area accessible to the public. For the purposes of this section, the term “area accessible to the public” shall remain undefined.

  • 1-2712 Patronizing an Adjudicator

A person is guilty of patronizing an adjudicator when he appears in front of a sitting judge in connection with any criminal charges that may have been levied against him by the prosecution.

  • 2-2718 Promoting Adjudication

A person is guilty of promoting adjudication when he knowingly and unlawfully fails to plead guilty to the top charge during arraignment.

  • 2.20             Promoting Adjudication, defenses

It shall be an affirmative defense to the crime of Promoting Adjudication, section 2 (two), above, that the person was:

  • a court interpreter, or
  • sitting in the audience, or
  • sticking their head in the door for a moment to ask for directions to the restroom. 
  • 300(A)(2)(g)(iii) Criminal nuisance

A person is guilty of criminal nuisance if any of the material that is generated by his case contains language, phraseology, phrasing, little adjectives, or any other verbiage that is printed in tiny print.

  • 300(A)(2)(g)(iii) Criminal nuisance, presumptions

If the aggregate weight of the paperwork generated by the prosecution is greater than or equal to 3 (three) pounds, that shall be presumptive evidence that at least one piece of paper contains tiny print.

  • 60 Untoward Behavior, not otherwise specified

Seeing as it is practically Friday afternoon, this amendment will be completed later. Until then, remember: your case is important to us. Please stay in jail, and a representative of the criminal justice system will be with you shortly.

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

Sheldon Silver’s Life Matters: Part 2

Prosecutor Preet Bharara, come to save the day from Injustice and Corruption, howled for a 14-year sentence, saying, “There is no excuse or mitigating factor tempering the seriousness of Silver’s crimes.”

A hundred letters to Judge Caproni pleading for a lenient sentence tell a different story.  They come from all walks of life: former Assemblypersons, leaders and activists from the Jewish, Black, Hispanic and Chinese communities, artist loft tenants, seniors, parents of schoolchildren, caregivers of the disabled, neighbors and family members, most of whom have known Silver for decades. It’s impossible to read them without being moved. Here are a few excerpts.

From Judy Rapfogel, Silver’s former Chief of Staff:

“I could write volumes about the good work Shelly did for the people of the State of New York. When I think back on his 38 years in public service, the thing I remember most was our work after 9/11. Shelly and I went to a meeting that night with the Mayor, Police Department and many others at the then-Command Center to figure out how to understand and deal with those horrible events.

“We spent the next few days walking through downtown, trying to speak with as many people as we could. It was devastating. The smoke and the smells were like nothing any of us had ever experienced. After those first few days we got a trailer, a Winnebago I think, and drove through downtown. And there was nothing more important to Shelly at that time than making sure we were there to give out packaged food, water and groceries. We let people use our phones so they could call their loved ones. The logistics involved for a month or so in that trailer were incredibly difficult, but Shelly was adamant. We coordinated with the Mayor’s Office and with the National Guard. Shelly stopped and spoke with everyone he could and wanted to make sure people  knew that someone was watching out for them. We also went to work to make sure that loved ones were able to find each other. . . . We worked with Con Ed to restore power, addressed air quality issues and embarked on numerous programs to rebuild downtown. . . .

“Shelly also worked hard for minorities. He did what he felt was right, even if it went against his religious beliefs and even if meant he would have to ‘answer’ to friends and family. He worked hard to make sure Jewish women who were divorced could remarry in the Jewish faith, stopping husbands who held their wives hostage by refusing to give them a religious divorce.

“He publicly supported same-sex marriage as early as 2007, even though members of our religious community were opposed, or at best, ambivalent.

“Shelly made sure infertile women had insurance, supported the Women’s Equality Act and made sure that the Women’s Health and Wellness Act passed so that insurance companies could not prevent women from getting mammograms and preventative gynecological care.

“Shelly supported people – he worried about tenants and affordable housing and wanted to make sure they had the best protections he could get them, particularly in the years when there was a Republican Senate and a Republican Governor, who would have done away with all rent protections.

“Shelly worked for youth, education, health care and seniors. And he did it not just by passing legislation and making laws, he met with people. Shelly was at the street fairs, to job fairs and CUNY fairs to encourage people toward higher education, he was in his mobile ‘office,’ he visited the housing projects so that he could talk to people and listen to the issues that made a difference to them. He supported many criminal justice initiatives, but always understood that addressing drug abuse was imperative to stopping much of crime.”

From W. Ann Reynolds, former Chancellor of CUNY:

“Public higher education all too often suffers from lack of high-ranking advocates and CUNY was no exception. The political turnover in 1994, to Gov. Pataki and Mayor Giuliani, left CUNY with no advocates at a high level save then-Speaker Silver.

“Mayor Giuliani had campaigned on the promise to put welfare recipients to work. In fairness, I don’t think Giuliani realized that over 20,000 welfare recipients were enrolled in CUNY, mostly our community colleges. Most were women, many were mothers and most were desperately trying to gain the job skills needed to be off welfare and supporting themselves and their families. With a work requirement of 40 hours a week, oftimes in another borough, it would have been impossible for them to continue their studies to lift themselves into the status of independent wage-earners, not to mention the loss of child care, counseling, job placement and other services CUNY provided.

“Speaker Silver quickly mobilized support for a legislative bill that lowered the work requirement to 20 hours per week, to be performed in borough of residence or community college and probably set a record in making it a law thus enabling our welfare recipients to keep moving upward.”

From a Chinatown pharmacist:

“I am a pharmacist and have been the owner of Confucius Pharmacy in Chinatown, New York City, for 27 years. Many of my patients are senior citizens and immigrants from China with little or no knowledge of English. . . .

“Over the years, there are quite a few occasions that my patients encounter problems with access to their medications and could not get their prescriptions filled. . . .

“Ten years ago, with the introduction of the Federal Medicare Part D Prescription Plan, by law New York State had to turn off their Medicaid Prescription Plans for senior citizens. Pharmacies could only bill electronically to the new federal prescription administrators. However, due to technical problems, our claims did not go through. For a whole week, we could not fill any prescriptions for our seniors and there was no end in sight. It was so stressful for me and my pharmacy colleagues in New York City, not being able to help our patients.

“Then I asked Mr. Silver to help. With his leadership, the New York legislature reopened the New York Medicaid Prescription Program immediately, on a temporary basis, until the Medicare plan could run smoothly on its own. To me, this felt like a crisis averted and I am forever grateful to Mr. Silver.

“Another example would be the New York Senior Prescription Plan known as EPIC. It is a program that helps reduce prescription copays for low income New York State senior citizens whose income is not low enough to receive Medicaid. Many immigrant seniors in Chinatown benefit from this plan, as they are not “deemed poor” because they have some savings from their jobs in restaurants or laundries before retirement, and have to pay a hefty copay in the Federal Prescription Plan.

“In my meetings with Mr. Silver, I have always asked him to help keep the EPIC program running within the New York State budget and he agrees. I believe he has kept his promise.”

From three siblings:

“Our names are Chaim, Jacob and Tamar Rand. . . .

“Two years after moving to Israel in 1993, our mother was diagnosed with breast cancer. . . [and] was horrified upon receiving notice from the insurance company that the policy would not be respected, apparently due to an alleged technicality of which she had not been made aware.

“Though our mother tried not to involve us, or worry us at the time, we subsequently found out that Mr. Silver had taken upon himself to contact the insurance company and that due to his efforts the policy was reinstated.

“Needless to say, our mother, who was just months away from her death and had enough worries as to the future of her children, felt a tremendous relief knowing that the life insurance policy she had paid for would be there for her children. . . . She passed away in 1998 at the age of 43 and because of Mr. Silver’s enormous assistance, was able to die with a little more peace of mind.

“Though Mr. Silver never contacted us directly, we were subsequently informed by several family members of everything he had done – a true act of kindness for a dying mother and her young children.”

From Silver’s daughter:

“Our home phone was always ringing off the hook with people asking for advice, direction, or help from my dad. And he did not turn them down. From large organizations to the neighbor next door, my father showed us that it was a privilege to be an address for someone who needed assistance.

“Just last month, in the midst of this very difficult time for our family, he got a call late one night from someone asking if he could help them in procuring a passport quickly.

“I assumed he would hang up apologetically explaining that he was not in a position to do anything for them. On the contrary, my father went online to get them the proper phone numbers to call, waited past midnight to further direct them, and followed up with them to see if they had what they needed.

“This reminded me of the quote from Abraham Lincoln. ‘To ease another’s heartache is to forget one’s own.’ This sort of dedication to others is a glimpse of how my dad has extended himself for others throughout his career as a public servant.”

From a rabbi who has known Silver since childhood:

“I recall an incident when Sheldon found a wallet containing $3.00, in the Yeshiva Elementary School, but without any name or identification. Now, three dollars in those days was a fortune of money for a ten-year old. Sheldon was advised by his friends to just keep the money, for the rule among his peers was ‘finders keepers.’

But Sheldon was concerned about the feelings of that unfortunate youngster who would be without his three dollars. With the permission of the Principal, Sheldon Silver went around to each classroom until he found the boy who was able to describe the wallet and knew the exact number of dollar bills it contained.”

From the President of the Fortune Society offering Silver a volunteer job as an alternative to prison:

“When Mr. Silver came to our office [for a job interview], one of our clients came from the district that he had represented and recognized him. When we discussed this, I realized that Mr. Silver represented a district with one of the highest concentrations of New York City Housing Authority housing projects in the city and was known to many of the residents. . . .

“A primary reason that Fortune is eager to provide a community service placement opportunity to Mr. Silver is because of the value that we place on his decades of commitment to the population that we serve.

“In his years as the Speaker of the NYS Assembly, Sheldon Silver was a staunch advocate for programs and services for people in poverty. In particular, in the aftermath of federal welfare reform, he was often the ONLY one among the top leaders in NYS government who emphasized that work requirements and time limited public benefits were not enough to solve the crises of poverty and homelessness in New York.

“During the annual NYS budget negotiations process, particularly during the 2000’s, Sheldon Silver was one of the few in a top position of power who was accessible to human service advocates and service providers. . . .

“He also recognized the unique needs of sub-populations in poverty – including those with criminal justice histories struggling with the re-entry process, as well as individuals with multiple barriers, including substance abuse, mental health, physical disabilities or other challenges to obtaining employment, housing, and overall stability and self-sufficiency.

“While more New York leaders are now coming to recognize the importance of these policies to solve these entrenched social problems, Sheldon Silver was fighting for them at a time when they were not popular, as the mantra of the time was centered almost entirely on a ‘work first’ approach towards the poor.

“It took enormous courage and strength, as well as a clear and consistent focus on doing what’s right for the most underprivileged populations, on his part to do this.

“His commitment was the #1 reason why so many programs for the poor were still funded during those years, even when other top leaders in NYS government were arguing that they should be ended altogether. He would often say, ‘the NYS budget should not be balanced on the backs of the poor,’ an inspiring message at a time when so few in top leadership positions were taking this position.”

From a longtime associate:

“I have seen him champion so many groups and individuals where he did not and could not expect any thanks. In fact, he has taken up causes, such as gay rights, that are inimical to his own religious Orthodox community, and he suffered much criticism and humiliation as a result. All this notwithstanding, he persevered and helped ensure their protection under the law.”

From Judge James A. Yates, Silver’s former counsel:

“I left the bench to work as Counsel to the Speaker because I wanted to work with him on a vast array of progressive legislative proposals he supported or sponsored. . . ranging from criminal justice reform, provision of meaningful health care, worker protection, domestic violence prevention, and more. In each of those areas, and beyond, I knew that Speaker was a voice for reform and innovation with an abiding concern for fairness and justice. . . .

“I can only say that each and every one of the bills and legislative proposals upon which we worked together were uniformly aimed at betterment of the public weal, free of any other consideration.

“As well, on a personal note, in my experience working with Speaker Silver on a daily basis, he was always, without exception, a kind, considerate and thoughtful person who treated colleagues, employees and friends with kindness, generosity and above all, courtesy. He is a deeply religious man who not only attends to religious protocol, but lives thereby.”

From a community organizer and friend of 50 years:

“He saw many neighbors aging and needing assistance and acted determinedly to help them in an official way through key legislation to establish the Naturally Occurring Retirement Community which by now is a national movement. . . .

“To this day, 22 years after its establishment, Shelly is appreciated through NORC which allows aging seniors to remain in their own homes, maintain their independence, and have needed services provided in their home rather than force them to leave the community so dear to them and be transplanted to a nursing home, a likely alternative. The seniors always felt they could count on Shelly.”

From the Pastor of Primitive Christian Church

“Throughout most of my years of serving our community, I have known Sheldon Silver. . . .

“The most impacting demonstration of his dedication to the people of our community was during the 9/11 terrorist attacks. The families of my congregation suffered greatly. Many lived within eyesight of the fallen towers and were witnesses of horrendous loss, including the loss of family members.  Mr. Silver was directly in contact with me and mobilized his office and other public resources to make sure that assistance was given expediently. I am certain that he was pulled from the many layers of government and the financial and business sector, but we never felt that he was unavailable.”

From former Assembly counsel Don Lebowitz:

  “I served as associate counsel to the Assembly and counsel to the Assembly Housing Committed from 1981 until 2008. I served three Assembly Speakers (Stanley Fink, Saul Weprin and Melvin Miller) as principal attorney overseeing all legislation relating to housing prior to serving in that capacity under Speaker Silver beginning in 1994. From 2008 to 2014, I was a consultant to the Office of the Speaker, continuing to provide advice on housing matters.

“I am aware of Mr. Silver’s conviction. However I have always held and continue to hold him in high regard based upon the manner in which he led the Assembly and guided decision-making on housing related laws and policy. . . .

“At one point, when the Republican Governor and Republican-controlled Senate wanted to allow rent laws to expire permanently, Mr. Silver actually held up the State’s budget to make sure tenant protections stayed in place.

“In 2007 when major changes to the 421-a program were under consideration, I was present at meetings with Mr. Silver involving these very matters. On every occasion that I was present Mr. Silver put the interests of his constituents and the Assembly first and foremost. He is a masterful negotiator and repeatedly achieved negotiated agreements that served the best interests of his members and constituents.

“Mr. Silver is a fierce advocate for his district. He often asked me to work on matters of importance to his constituents but also had me assist individuals and families. He was deeply concerned with the wellbeing of his constituents and I often sensed that his motivation stemmed more from wanting to help a neighbor than courting a vote. I was never asked to work on any matter that served Mr. Silver’s personal interests and never observed any instance in which Mr. Silver used his office to advance his personal interests. . . .

“I have known Sheldon Silver for over 30 years. Throughout that time I knew him to be an honorable man and dedicated public servant.”

From Judith H. Hope, former Chair of the NYS Democratic Party

“I was the first woman Chair of the New York State Democratic Party. . . . In 1994 Governor Mario Cuomo lost his 4th bid for governor and the Democratic State Party was left with over $8000,000 worth of debt and in generally desperate circumstances. New York political tradition holds that, in the absence of a sitting governor, the responsibility for the political party falls to the Speaker of the New York State Assembly.

“Sheldon Silver recruited me to be chair of the Party in April of 1995. . . .

“I have been shocked to hear of the charges of which he was convicted because I never observed any occasions of self-dealing involving Speaker Silver in seven years of collaboration.

“I admired Speaker Silver for his integrity, and most of all for his courage and determination during a period in which he, and the legislative body which he led, were the sole defense against the most severe budget cuts to essential social programs which benefit the poor and elderly across the state of New York.”

A constituent writes:

“I was a former Branch Manager at Off Track Betting Corporation in Chinatown until the state decided to cease all operations of the company without any warning and without any time to prepare. At that very moment, I had lost the benefits I worked very hard for 38 years. With two kids in college, I was fearful that I would not be able to support my family at that time. Sheldon Silver, our former Assembly member, provided me with hope to move forward. .  . .

“I know that Sheldon Silver has been convicted of serious offenses but please consider how he has cared for members in the lower east side community. His warmth and caring presence in the community should not be forgotten.”

Retired Assemblyman Harvey Weisenberg writes:

“During the 2013 budget process, I was dismayed to discover the Governor had proposed a $90 million cut to programs serving children and adults with developmental disabilities. Needless to say, this funding reduction would have been devastating to thousands of families in our state. Shelly joined forces with me to avert this disaster, and through his advocacy at the negotiating table, we were able to restore the funding.

“Again in 2014, Shelly utilized his exceptional mediation skills toward attaining a cost of living raise for direct caregivers who, for very little salary, do the formidable work of caring for people with severe disabilities. . . . Shelly entered into those discussions with no initial Senate or Executive support, but came out successful. These actions not only provided some fiscal assistance to some of our state’s working poor, but also sent a message to them that the work they do is valued.

“On many occasions, Shelly accompanied me in visiting programs that serve our special children. I can attest from experience that people who visit these programs will look, but not always really see these children; they will listen, but perhaps not truly hear their voices and their needs. Shelly Silver genuinely saw, heard and acted on their behalf. I have seen the amazing results of his deep capacity for empathy and kindness.”

Rosa Silver writes:

“Shelly and I have been married for 49 years, but have been together for nearly 54 years. We met while we were in high school and made our lives together. We have four grown children and many grandchildren who we adore and who adore Shelly. . . . We live in the same apartment complex where Shelly grew up on the Lower East Side. . . .

“I am a retired school teacher. . . .  I think he was proudest of what he was able to do to bring schools to his district, to make sure the schools were not overcrowded and to make sure all children were able to receive a good public school education from four years old on. He and I often discussed the vital importance of early childhood education and he made sure that pre-K was available to all.

“Over our many years together, I have watched Shelly interact with others, from Senators, Mayors and Governors to students, the elderly and people who were new to this country (immigration was always in our lives – my parents and I came to the US from Poland when I was 3). Shelly treated everyone with respect – from the Senator to the woman who wanted the traffic light on the corner fixed. . . .

“He was a terrific spokesman for his constituents, which over the years grew from a largely Jewish population to one which included many other ethnic groups as well as socio-economic groups from one end of the spectrum to the other. Shelly communicated with all of them. That was what made him a great public servant – his ability to listen, to understand and to work for what the people needed.

“Shelly’s ability to listen and hear is what also makes him a great father and grandfather. Raising four children, particularly on the lower east side of New York City is not easy. We had a religious home, but it was important to Shelly and to me that our children were not insulated in any way. . . . Shelly was there, even when he was in Albany, to answer the kids’ questions, to make sure they understood right from wrong and to cheer them on, whether their achievement was reading a book by themselves, hitting a double or graduating college.

“Writing this letter is the most difficult thing I have ever done. I was in the courtroom when the jury announced it had found that Shelly was guilty. I was devastated. I am not sure what I can say to Your Honor except that my husband is a good man.”

J. Edgar Caproni has handed out her barbaric sentence. What can we do but squawk?

The complete letters may be viewed here.

Posted in Criminal law, Law | 2 Comments

Sheldon Silver’s Life Matters

It’s a bizarre society where a cop can choke a helpless man to death in front of a camera and not be indicted, while 72-year old former Speaker of the Assembly Sheldon Silver, who’s devoted his life to public service, gets 12 years in prison for taking referral fees.

Even before he set foot in the courtroom, Silver had already been convicted in the media, thanks to US Attorney Preet Bharara’s tub-thumping. No ethics credits for you, Preet. Nothing like calling someone a “corrupt politician” to drum up the torch-and-pitchfork crowd.  Even the NY Times joined the pack.  So much for all its “progressive” hand-wringing over long prison sentences for non-violent offenses.

“Justice was served,” crowed Saint Governor Cuomo, hoping no one will remember that he was the one who put the kibosh on the short-lived commission to investigate public corruption after it started sniffing in embarrassing places.

“A scheming, corrupt politician,” declared Judge Valerie Caproni, throwing in some jeering about “living out his golden years in an orange jumpsuit.” “Here’s the thing about corruption,” she sneered, “It makes the public very cynical.”

Well, here’s the thing about a judge with a background of complicity in unlawful government surveillance.  The virtuous Caproni was General Counsel to the FBI when they were systematically using illegal “exigent letters” to obtain thousands of phone records of private citizens without the silly formality of a warrant or subpoena.  This rogue snooping went on for years while she was Counsel, despite criticism from the Office of the Inspector General, until she was finally hauled up in front of the House Judiciary Committee where she was less than candid.  Just the person to preach about public trust.

What has Silver done to deserve a murder sentence? You won’t find out from the media, dutifully delivering the prosecution’s press releases. “Bribery,” “kickback,” “extortion,”  “money laundering,” “scheme to defraud the public of honest services.”  You’d think he was some kind of Godfather putting horse’s heads in people’s beds.

Whether white-collar or no-collar, the names of criminal offenses are designed to conjure up horrifying visions vastly out of proportion to what the prosecution actually has to prove.  What could sound more wicked than “Scheme to Defraud the Public of Honest Services”? Visions of public works collapsing because they were built with Mafia cement. Little children going hungry because politicians are stealing their school lunches. But according to Caproni’s Jury instructions, “scheme” means only a plan to accomplish a goal and “defraud” simply means lying. It doesn’t matter if the public didn’t lose any money because of the “scheme.” It’s the idea of being lied to that deprives them of  the “intangible right of honest services.”

Everybody knows what bribes and kickbacks are:  when a public official gets something from someone “in exchange for the promise or performance of an official action.” But in prosecution-land, it doesn’t matter whether the “briber” gave with the intention of getting something back, or whether the official ever did anything for the briber. And even if the official does do something that benefits the briber, it doesn’t matter whether it was also good for the rest of the public.  Or that the official would have done it anyway without the bribe.  The crime is apparently that the official had thoughts of a quid pro quo.

As for extortion, the prosecution has to prove that the official knew that “the extorted party” gave him something with the motivation of getting him to do something in return, “rather than for some other entirely innocent reason.

In Silver’s case, the charge was that a cancer researcher and some big developers referred business to law firms chosen by Silver because they thought Silver might do something in return.  The prosecution didn’t have to show that there was anything wrong with the cancer research or the quality of representation by the firms, or that Silver’s referral fees were exorbitant. They didn’t have to show that he did anything for the researcher or developers that he wouldn’t have done anyway.  No doubt the public has suffered intangible harm from Silver’s not disclosing the referrals, but is that proportional to throwing him in prison until he’s 84?

Maybe he shouldn’t be Speaker or an Assemblyman or even a lawyer, but prison time to make an example of him is barbaric.  There’s another side to the story, as shown by the moving letters written to the court on his behalf. See Part 2.



Posted in Criminal law, Judges, Law | Tagged , , | 1 Comment

We find no error “under the circumstances”

Shell game Step right up folks, and guess which shell has the reversible error under it. Pick the right one and you get a reversal for your client’s case. How about you, sir? The one under my hand? Whupp! Nope, that’s harmless error, you lose. How about you, young lady? This one? Hahahahahahah. No reversible error here. Okay, maybe it’s not harmless but a defendant is entitiled to a fair trial, not a perfect trial. Another sucker – I mean – player? Hey, presto, nothing here either! Basic constitutional violation? Maybe so, but under the circumstances you don’t get a reversal. What circumstances? I don’t have to tell you, it’s my game. You don’t like it, go get your own shells.

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

How the Appellate Division reads your brief

Affirmance goggles

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Happy 20th Birthday, SORA, may you die soon.

Mark Antony speech

Friends, New Yorkers, Countrypersons! Lend us your ears! We come not to praise SORA but to bury it. For the courts say its purpose is not to punish, but to protect public safety. And courts are honorable persons, otherwise they wouldn’t have “Hon.” in front of their names.

SORA was enacted in 1996 to create a class of persons permanently labeled “sex offenders,” based on scientific proof that anyone who commits a sex offense is an incurable, murderous pedophile. Therefore, they have no constitutional right to be let alone even after they’ve completed their prison sentences, probation or parole.

You may ask why SORA isn’t punishment if it was enacted as an extended form of parole. Because the courts say so, that’s why, and courts are honorable persons or else they wouldn’t have “Hon.” in front of their names.

SORA protects the constitutional rights of sex offenders by giving them a hearing where a judge decides where they place on the Frankenstein scale. These hearings are prosecuted in criminal court by the local District Attorney’s Office, with all the apparatus of the criminal justice system, but that doesn’t make SORA punishment. Because the courts say it isn’t, and courts. . . .

Courts and prosecutors determine risk level by using an official “Risk Assessment Instrument” (RAI) that was whipped up over a weekend by some parole officers 20 years ago.  They were experts in sex offender recidivism. Who said so? The Governor, that’s who, the same honorable man who brought back the death penalty.

The RAI imposes points based on judgments about the wickedness of the offense and the offender. The more points, the more restrictions the “sex offender” will be subjected to when he returns to the outside world.

How is that different from parole, you ask, which nobody denies is punishment? If risk prediction under SORA is purely regulatory and non-punitive, shouldn’t it be based on scientific knowledge about what factors predict recidivism, not moral judgments?

That’s the consensus of psychologists who conduct empirical research on sex offender recidivism, but who cares what they think?  Especially when their findings contradict entrenched beliefs.  But the courts say that SORA risk prediction is a simple matter of, “if he did it before, he’ll do it again.” And courts are honorable persons. . .

Prosecutors use SORA hearings to revive old charges that they’d agreed to dismiss during plea negotiations in exchange for not having to prove the defendant’s guilt at trial. At SORA hearings, which may be many years later, they bring in grand jury testimony and police reports containing accusations by complainants whom the defendant has never had a chance to cross-examine.  Courts say this is clear and convincing evidence that the accusations are true.

Wait a minute, you say. Hasn’t it been a basic principle for several centuries that mere accusations aren’t proof? Doesn’t every trial court tell the jury that an indictment is proof of nothing? That its purpose isn’t to establish guilt but only to show there was reasonable cause for haling the accused into court? How did grand jury testimony suddenly become clear and convincing evidence?

Because the courts say it is, and courts are honorable persons. And since SORA isn’t punishment, accusations are good enough for government work.

The consequence of being labeled a sex offender, based on this scientific RAI and the clear and convincing evidence of untested hearsay accusations, is to be cast into a permanent underclass. There are now nearly 40,000 people in New York who aren’t being punished but merely regulated to protect public safety. About two thirds of them are labeled as maximum or medium risk.  Their photographs, home and work addresses and other personal information are broadcast over NY State’s Internet sex offender registry. Anyone may print out the webpage and post it anywhere, such as in the registrant’s building or workplace. People who once had jobs and homes may legally be evicted and fired based on nothing but their status as “sex offenders.” Many shelters refuse to accept them.

Last week, President Obama celebrated two decades of protecting public safety by signing the International Megan’s Law. This requires anyone whose sex offense involved a minor, no matter how long ago, to have SEX OFFENDER conspicuously displayed on his or her passport.  This includes persons convicted of offenses such as Romeo and Juliet relationships, sexting or public urination.

Congress says it’s not punishment, but merely to prevent sex trafficking. And Congresspersons are honorable people.




Posted in Civil Liberties, Law, SORA | Tagged | 9 Comments