Law vs. Science

Exclusive Interview with the Hon. Judge Wool:

Appellate Squawk: Judge, I understand you were a prominent member of the National Commission on Forensic Science asking some tough questions about the validity of these cop-created sciences.

Judge Wool: I was, but now I’m back to selling pencils outside the courthouse. Our “make-America-great-again” regime replaced us with a law enforcement outfit headed by a prosecutor. The Justice Department has dissed our work as “efforts in the courtroom and elsewhere to reject reliable and admissible forensic evidence.”

A-S: But how can they ignore the National Academy of Science report, the PCAST report and the Innocence Project’s embarrassing revelations of wrongful convictions caused by forensic so-called science?

Judge Wool: Same way the courts manage to ignore them.  Cops are still testifying to “a reasonable degree of ballistic certainty” that a squashed piece of lead could only have been fired from the defendant’s gun. Or to a reasonable degree of inkpad certainty that a smudgy partial print matches the defendant.  As for those trained seals from the Medical Examiner’s Office babbling about how no one in a bajillion gazillion planets except the defendant has the same 3 alleles as those found on the gun, don’t get me started –

A-S: Are you saying courts don’t understand science?

Judge Wool: They understand that science is the enemy of law. Courts wouldn’t last a day if they were held to the same standards as science.  For example, imagine a clinical test where everybody knew whether they were taking the drug or the placebo.

A-S:  It wouldn’t prove anything. The subjects would be influenced by what they knew.

Judge Wool:  Even if they promised under oath not to be influenced? What if they were experienced testees who could be presumed not to be biased by what they knew?

A-S: Why, that’s just like having the same judge do the trial who did the suppression hearing! Or who knows the defendant’s criminal record.

Judge Wool: Exactly. And what if experimental results were considered final and could never be retested because the first experimenter saw and heard the experiment?

A-S: Well –

Judge Wool: Or because the experimenter was a senior scientist? Or swore on the Bible that the results were accurate?

A-S: Science would still be in the Middle Ages.

Judge Wool: Just like the law.

“Goes to weight, not admissibility.”

h/t to Adina Schwartz, firearms & toolmarks skeptic for “to a reasonable degree of ballistic certainty.”

Posted in Forensic "science", Law & Parody | Tagged , | 7 Comments

Searching for the right court for your appeal? View these 521 customer reviews.

One of the great bulwarks of economic justice, at least for online shoppers, is the grassroots literature of customer reviews. A mixture of autobiography, advice and social protest, customer reviews are the expression of the Internet Age from all walks of life, from staid L.L .Bean commentators (“This versatile natural cotton T-shirt was the perfect choice when my husband and I had to swim ashore after our cruise ship sank”), to the picky TripAdvisor tourists, (“Beaches a disappointment. The wife and I didn’t expect so many land mines”), to the opposable-thumb loner, (“Instruction manual is confusing and doesn’t warn you that the bolsters explode unless you shepardize them first. Took hours to assemble, but finally got her to run by rewiring the cornpone”).

Now that every court has a website, there’s no excuse for not including customer reviews. The First Department, always at the forefront of innovation (someday they’ll discover real electronic filing), has initiated a pilot program. Here’s what you can read on their Home Page:

“Fabulous court, helpful, attentive judges. Ruled in our favor when we hadn’t even filed a brief. Would definitely go back.” – – Xerxes Vandal, NY District Attorney.

“I followed the instructions to the letter but the decision they sent me arrived months late, omitted crucial facts and mixed it up with another case. Their legal analysis didn’t fit at all. I sent it back for reargument, but they never responded.” – – A Legal Aide.

“Design is obsolete. All the nuts need adjusting.” – – Appellate Squawk.

“Greasing the wheels will help.” – – Influential White Shoe Lawyer.

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

Is a lawyer a “significant individual”? Court says nix.

Does being someone’s lawyer make you their “authorized representative” or even a “significant individual,” client-wise? Not if he’s “a dangerous sex offender requiring confinement,” says the Appellate Division. In that case, you’re most likely an annoying buttinsky yapping about “therapeutically counterproductive” notions like due process and autonomy, impeding Doctor from “crafting an appropriate treatment plan.” Mental Hygiene Legal Service v. Sullivan (3rd Dept. 2017).

The plaintiff D.J. is locked up indefinitely in Sex Offender Gulag – which the court describes with a straight face as being a hospitalized patient enrolled in a Care and Treatment Program. The Mental Hygiene statute says he can have an “authorized representative” or “other significant individual” present at his “treatment planning meetings.” Treatment planning,” in the context of forcible confinement, means how much restraint, deprivation, brainwashing and doping up the patient will be subjected to in Sex Offender Hospital.

So when D.J., sensibly reasoning that his lawyer was an authorized representative and significant individual, asked to have her at the meetings, the Care ‘n’ Treatment folks recoiled like vampires before a cross. “Not entitled as a matter of law!” ruled Head Shrink, brandishing his souvenir shop Juris Doctor diploma. “Counsel’s presence would be therapeutically counterproductive!” But he generously allowed an exception if the lawyer could prove “a genuine interest in the care of the patient,” would guarantee that she was “no longer acting in the role of legal representative” and would keep mum about whatever she heard, especially to her law office, the Mental Hygiene Legal Service (MHLS).

You’d think the Appellate Division, presumably paid-up members of the ABA, would tell the doc to stick to his penile plethysmographs and let lawyers do their job.  After all, the Legislature expressly provides lawyers to civilly committed sex offenders for assistance and advocacy, including in treatment planning. If legislatively mandated lawyers aren’t authorized representatives, who is? As for “significant individual,” the Legislature defines it as anyone “concerned with the welfare of the patient.” So what’s not to understand?

But the court, applying the Houdini canon of statutory construction, opined that authorized representative means only someone like a parent or health care proxy who makes ultimate decisions for minors or the hopelessly gaga. MHLS lawyers, in contrast, “must maintain a conventional attorney-client relationship.” What’s a conventional attorney-client relationship? The court doesn’t say, but whatever it is, “it follows that counsel is not an ‘authorized representative.'”

The court wriggles out of recognizing lawyers as significant individuals by saying that “the phrase refers to someone interested in the patient’s welfare and knowledgeable about his or her personal situation rather than someone tasked with providing legal counsel” (emphasis added). Since lawyers’ “narrow legal concerns” are completely at odds with knowing anything about their clients’ personal situation, let alone with giving a flying fish about their welfare, this “compels the conclusion” that they’re not significant individuals. Take that, you client-centered touchy-feely types!

The court is charmingly candid about why lawyers need to be kept out:  “[L]egal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals” (citing a case where a lawyer interfered with a patient’s medically advisable treatment by insisting on investigating her claims of abuse by staff).

Nor does D.J.’s lawyer qualify for the Genuinely Caring exception, says the court,  since D.J. failed to prove that they “have developed the type of personal relationship” that makes the latter a “significant individual.” His lawyer’s just too darn busy pursuing narrow legal goals.

The dissent, closer to Planet Earth, argues that a “resident” might have legitimate objections to what Sex Offender Hospital calls “care and treatment,” and that his lawyer is both an authorized representative and a significant individual (citing a case where involuntarily committed patients successfully objected to care and treatment in the form of forced medication).

But the majority happily swallows the pretense that civil commitment is “hospitalization” to cure the “patient,” no matter how much it looks, walks and quacks like punishment.

C.S. Lewis long ago described the deadliness of conflating punishment with therapy:

[W]hat had hampered every English police force up to date was precisely the idea of deserved punishment. For desert was always finite: you do so much to the criminal and no more. Remedial treatment on the other hand, need have no fixed limit: it could go on till it had effected a cure, and those who were carrying it out would decide when that was. And if cure were humane and desirable, how much more prevention? Soon anyone who had ever been in the hands of the police at all would come under control of N.I.C.E; in the end every citizen.

C.S. Lewis, That Hideous Strength, 69 (Scribner Paperback Edition, 1996)(1943) (h/t to Art Baer of MHLS who pursues his clients’ legal goals and their welfare).

Posted in Satirical cartoons, sex offenders | Tagged , , | 2 Comments

Squawk has been ungood

If the wrath of the humorless is a satirist’s badge of honor, we’ve been awarded the equivalent of the Nobel Prize for our recent post “Are you a cissie?

The post (trigger warning!) is a spoof of compulsory workplace “trainings” proselytizing the fashionable notion of gender issues über alles. Our point was that although genderism may be a harmless enough ideology for personal life, it’s intrusive, irrelevant and potentially offensive to foist it on people we’re supposed to be defending from criminal prosecution.

OMG, the cries of “Homophobic!” “Racist!” “Heavy hearts, anger and anguish!” “Resistance to the Truth!” that went up from a claque of goodthink colleagues.  Grievances! Complaints! Running to Mommy Management!  Of course we support free speech, they harrumph, but not when it offends us!

Apparently they skipped First Amendment in law school for fear of being traumatized.  But if criticism of their beliefs makes them anguished and apoplectic, how in the (real) world do they function as lawyers?

Judge: The defendant Joe Blow is charged with burglary.

Defense Attorney: Harassment! Discrimination! My client is disproportionately overrepresented in the criminal justice system!

Prosecutor: You can say that again. He’s got eleven priors.

Attorney: How dare you put my client in the unfair and exhausting position of having to defend himself!  You disgusting white supremacist! You – you-  phobe!

Prosecutor: But I’m not white –

Judge: Um, counselor, I believe the People have already offered a conditional discharge and a program.  

Joe Blow: I’ll take it. 

Attorney: I’m telling on you to the Bar Association!  I’m filing a Title VII complaint! You’re gonna get in trouble!

We shudder to think what their appellate briefs look like:

It is with a heavy heart, anger and anguish that appellant responds to the bigoted, ugly People’s denigration of my client as “guilty.” This belittling, demeaning label is deeply offensive to Mr. Blow who has expressly stated his preference for being called not guilty.  

Yup, disagreement is harassment. Criticism is discrimination. Diversity is conformity.  Newspeak is reality.

Posted in Civil Liberties, Criminal Defense Appeals, Law & Parody, Satirical cartoons | 9 Comments

Police Commissioner announces new anti-spitting technology

Police Commissioner Hannibal Mugfur announced a monumental new technology today guaranteed to solve thousands of crimes, bring deviants to justice and make the City’s sidewalks cleaner. Unveiling a demonstration model of the SPITSUCKER-100™ before a delighted audience at Daffy Duck Middle School, Mugfur explained that it would enable the police to collect the thousands of saliva samples voluntarily deposited on city sidewalks and enter them into a portable database for DNA comparison.

SPITSUCKER-100™ is a microchip installed on a police officer’s shoe sole that automatically detects traces of expectoration on the sidewalk and enters it into a database attached to the officer’s ear. If DNA from the saliva matches a profile in the database, the officer’s ear lights up and an all-points bulletin goes out for the spitter’s arrest. If there’s no matching profile, the District Attorney’s Office convenes a Grand Jury and indicts the spit.

The device costs between $100,000 and $300,000 each, depending on the size of the officer’s feet.

The Mayor hailed it as a monumental breakthrough for justice.  “No longer will spitters escape detection by walking away,” he said. “Sidewalk expectoration is the gateway to violent crimes.  Spitsucker-100™ will enable the police to catch rapists, murderers and people who see a suspicious package on the subway but keep it to themselves.”

“We need to keep our kids safe from spitters,” agreed Assemblywoman Chlorox Trump (no relation to the President). “I’ve introduced a bill prohibiting any convicted spitter from going within 1,000 feet of a sidewalk. ”

Some scientists urged caution. “The SPITSUCKER-100™ doesn’t distinguish between human expectoration intentionally deposited on the sidewalk and involuntary drool from canines,” said Dr. Grant of Harvard University. “There needs to be far more research and experiments with college students.”

“Nonsense,” snapped Dr. Retort of the Medical Examiner’s Office, who developed the device. “It’s achieved full scientific consensus. Everybody in my office agrees it’s a proven scientific tool to convict criminals.”

“It’s a clear threat to civil liberties,” said an ACLU spokesperson. “Persons convicted of crimes are vastly over-represented in our prisons.”

Posted in Forensic "science", Law & Parody, Satirical cartoons | 2 Comments

“The War on Sex”

  As anyone knows who litigates SORA hearings, reason and a dime will get you a cup of coffee. The “research,” endorsed by the Supreme Court, showing that sex offenders have a “frighteningly high” rate of recidivism comes from a magazine article. The more boring but reliable literature shows that sex offender recidivism rates are no higher than that of other criminals. Burglars, for example, are way ahead. But what’s the use of mere information in a time of moral panic?

So we when we heard about a book of essays criticizing the Megan’s Law regime, entitled “The War on Sex” (2017) Halperin & Hope, eds., we immediately snagged a copy. Alas, for all the footnotes and academic trappings, it’s basically a polemic. The hyperbolic title should have clued us. War on sex? Au contraire, everything from mega-billboards advertising underpants to the Supreme Court’s paean to gay marriage promotes sex as the key to meaning and happiness.  A more accurate title might be, “There’s a War on ‘Sex Offenders’ That Should Worry Us More Than It Apparently Does.” But who’d buy a book called that?

The book’s premise is that beneath the apparent expansion of sexual freedom over the last 50 years, there lurks, like the picture of Dorian Gray, a simultaneously growing horror.  It argues that phenomena such as the sex offender registration and civil commitment laws; the mistreatment of transgender prison inmates; the Vatican’s opposition to gender fluidity; the misuse of sex trafficking laws to oppress sex workers; and the policing of HIV-positive persons –  are all part of a new war on sex. And because this war is “intertwined with racism, sexism, social inequality, and homophobia,” it “demands a coalitional response” from the corresponding social justice movements.

Several of the essays bravely grapple with the inherent contradiction. Social justice advocates want more protections for persons they consider to be victimized. But the resulting proliferation of criminal laws targeting domestic violence and hate speech, for example, has contributed to the carceral state, i.e., more men in jail. As one author argues, the effect of New York’s sex trafficking laws has been to arrest more streetwalkers – the very people the laws were supposed to protect.

The book is unfortunately full of sweeping assertions that are more ideological than reliable.  For example, one author asserts without explanation that the Static-99, an actuarial instrument widely used to assess the risk of sexual recidivism, is based on homophobic research such as Nazi castration experiments. That’s inexcusably misleading, whatever the failings of the Static-99.  Another author asserts that there are fewer white men on the sex offender registry because some jurisdictions don’t include incest offenders. We’d suggest checking that out before putting it into a brief.

As refreshing as it is to hear resistance to Megan’s Law, it’s unlikely that sex offenders will ever be the rallying point for progressive groups. There will never be a Sex Offender Pride parade.  At best, progressives will protest the prosecution of people who aren’t really sex offenders, such as sexting teenagers or HIV-positive prostitutes. But where are these social justice warriors when a “real” sex offender victimizes one of their own? As often as not, picketing the courthouse to see that he doesn’t get away with a “lenient” sentence.

The book has brought home to us that our job isn’t to vindicate this or that group, but to insist on our clients’ constitutional rights, no matter who they are or what they’ve done or who they’ve done it to. As the great Rumpole of the Bailey said, we’re old taxis that stop for anyone in trouble. Although we’d never add, as Rumpole did, “however repellent.”

Posted in Civil Liberties, Law, SORA | Tagged , | 2 Comments

Are you a cissy?

One of the many annoyances of being accused of a crime is having to put up with humiliating questions from your lawyer. Like, “Was your grandmother a drug addict?” “When was the last time you had sex?” or “Do you hear voices?” [Correct answer: Yes, when people are talking].

But that’s nothing compared to what lawyers are supposed to ask now, based on the latest advances in client-centered embarrassment:

Scene: Arraignment pens, counsel visiting area. 

Lawyer: Hi there! I’m Suzy, a cis-gendered woman, and I’ll be your attorney for today.

Defendant: About time. I’ve been locked up for a week without seeing a lawyer. I’m innocent. The cops broke down my door without a warrant –

Lawyer: What name would you like me to call you?

Defendant:  My homies call me Killer, but I’d rather you didn’t mention that in court. More prejudicial than probative, if you know what I mean. As I was saying, the cops said they’d shoot my dog if I didn’t voluntarily come to the precinct –

Lawyer:  [Reading from a card] I need to know whether your name expresses your internal deeply-held sense of your gender which may or may not be the same or different from your sex assigned at birth –

Defendant: Yeah, whatever. Then they handcuffed me to a chair and started throwing lighted matches on my lap, causing imminent danger to my manhood –

Lawyer: Tut, tut, gender isn’t a matter of stereotypical physical characteristics –

Defendant:   – so I confessed. But I can prove it’s false because there’s a surveillance tape showing I was on the other side of town at the time.  My wife  –

Lawyer:  Your wife? What gender identity does they go by?

Defendant: Yo, are you calling me a FRUIT?

Lawyer: That’s a very discredited terminology. The term is non-binary gender fluid –

Defendant: Will you lower your voice? I’m in a holding cell with 20 other guys, you know what I’m saying?

Lawyer: I’d feel so much better about our relationship if you’d only come out of the closet.

Defendant: But I’m a man. Like Muddy Waters says, “M-A-N, I’m the hootchie cootchie man -”

Lawyer: You sexist pig, how dare you! (Exit)

Defendant: Damn these girl lawyers.

Posted in Civil Liberties, Humor, Law & Parody, Satirical cartoons | 7 Comments