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

A Matter of Gravity

The People proved the operability, within the meaning of the statute, of defendant’s gravity knife. The officer described how he opened the knife, and demonstrated its operability in court. The fact that the officer needed to make several attempts before the knife opened did not undermine a finding of operability. People v. Cabrera (AD1 2016).

cop with gravity knife 

Gravity knives are extremely dangerous and therefore illegal because they can be opened with one hand by holding the open end down and pressing a spring.  People can spend years in prison, just for having one.

MAHER_GROSH_1908_GravityKnife

Of course you don’t have to do anything at all to get a dinner knife open, but somehow the Legislature seems not to have noticed.

Their dangerousness is also questionable. A recent study by the NYC Department of Health has shown that the average New Yorker loses 3.2 pints of blood annually from can openers (putting their fingers on the edge of the lid to get it out), but only .08 ml. from gravity knives.

West Side Story

Average New Yorker

One of our colleagues, a mild-mannered public defender by day, and the funky rapper  C-95 by night, sez it’s who has the gravity knife that makes the all difference:

Sound: boom-be-doom-boom-be-doom-boom etc.

A knife that opens by gravity                                                                                                                 Or application of centrifugal force                                                                                                       Even absent a bent toward depravity                                                                                                   Could land you in jail.    Of course – –

They sell those knives at Home Depot.                                                                                               They sell lots of them at Lowes.                                                                                                           They’re in camping goods and hardware stores                                                                               As everybody knows.

They’re used to cut open boxes.                                                                                                              Sportsmen wear them on their belts.                                                                                                    (Not the ones who ride after foxes,                                                                                                      But the ones who fish for smelts.)

So the courts are crowded with laborers and fishers?                                                                       Owners of chain stores and shops?                                                                                                     No, it’s just the unfortunate pishers                                                                                                     Who always get stopped by the cops.

It’s like drinking in public or feet on the seat;                                                                                   It’s about who’s doing it where.                                                                                                             When cops get to decide who goes for the ride,                                                                                 Enforcement is always unfair.

Uncork a prosecco in Prospect Park,                                                                                                   And enjoy it while dusk turns to dark.                                                                                                 But without or with lime,                                                                                                                       In day or night time                                                                                                                                 A Corona in Bushwick’s a crime.

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

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 , | 2 Comments

Judge Weinstein at the Brooklyn Historical Society

weinstein-old-brooklyn  We 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