“Don’t you dare invite me to your stupid Zoom party!”

An opinion piece grumbles that our socially distanced lives have become overstuffed with Zoom events, “a tedious trend that needs to stop.” And don’t you invite us to your stupid Zoom office meetings neither.  Scientific studies by Dr. Google have conclusively shown that listening to your colleagues on Zoom is even more exhausting than in person. Because we humans were never meant to stare at each other’s enlarged faces for hours at a time. Especially when we haven’t been to the hairdresser for two months.

So we weren’t surprised by the headline, “Juror Walks Off To Take Phone Call As Texas Tests First Jury Trial Via Zoom.”

Scene: Billy Bob’s Capital Trial on Zoom

Prosecutor: Ladies and Gentlemen of the jury, the coroner testified to a reasonable degree of coroner certainty that Colonel Sanders was shot at 2:06 a.m. on Christmas Day.  I give you my word I wouldn’t be prosecuting Billy Bob unless I knew he was guilty. He should be put down like Old Yeller —

Sheriff: (bursting onto the screen) Hold everything! I got new evidence!

Prosecutor: Daddy! You can’t interrupt my summation!

Sheriff: You hush your bazoo,  Rose -a -Sharon! At 2:06 a.m. on Christmas, Billy Bob was passed out in the Rattlesnake Junction drunk tank wearing a Santa suit. Here’s the video to prove it (plays video).

Judge: Well, I’ll be the son of an armadillo! Let’s poll the jurors for the verdict. Juror Number 1, how say you, guilty or not guilty?

Juror No. 1: Reckon he’s not guilty.

Judge: Juror Number 2?

Juror No. 2: Not guilty!

Judge: Juror Number 3? Juror number 3? JUROR NUMBER 3?

Juror No. 3: Sorry, I was on the phone buying an oil well. Did I miss anything important?

Zoom crashes.

Meanwhile, the Manhattan federal court has implemented new social distancing architecture:

Tango and waltz available on request.

Jury room installation sculpture

“And you’ll see changes in the courtrooms,” said the Chief Judge. “There’s lots of plexiglass around here.”




Posted in Criminal procedure, Law & Parody | Tagged , | 3 Comments

Janitors, Catholic schoolteachers and the Hosanna exception

A few years back, a less endearing janitor than Archie’s Mr. Svenson got fired from his job at a synagogue. Not only was he not waxing half the floors, he was doing a lousy job of constructing the annual succot tent. He sued for wrongful termination.

The synagogue invoked the “ministerial exception,” a First Amendment protection against “excessive entanglement” by the government in the affairs of religious groups. The Free Exercise and Anti-Establishment Clauses were, as you remember, a pushback against the Uniformity Act of 1559, when Henry VIII decided that religion is a matter for state control like liquor licensing.  And if you think that notion went out with the hose and doublet, look at the Chinese government ordering the Dalai Lama to reincarnate in compliance with its “Measures on the Management of the Reincarnation of Living Buddhas.”

The Supreme Court unanimously affirmed the hands-off principle in Hosanna-Tabernacle Evangelical Lutheran Church (2012), where a teacher-minister claimed she’d been fired in retaliation for threatening to file a lawsuit under the Americans With Disabilities Act. The Court held that religious groups have the right to choose their own ministers without state interference.

In other words, if you’re doing ministerial work in a religious organization, you can’t sue them in a secular court, whether you’re an imam fired for “un-Islamic conduct,” a mashgiach (kosher supervisor) trying to collect overtime pay, or a Chicago church organist alleging anti-Polish discrimination.

The janitor, strangely, didn’t come under the ministerial exception, but he lost anyway.

Last week the Supremes heard oral argument involving Catholic schools that had invoked the ministerial exception to defend their firing of two 5th grade teachers. One was Ms. Morrissey-Berru who just couldn’t get with the program imposed by the New Broom administrator and claimed age discrimination. The other was Ms. Biel who had to take time off for cancer treatments and eventually died. Well, whose side would you take? To the lady Justices, it was a no-brainer.

Justice Ginsburg was outraged that “these people [the Catholic schools] are exempt from all anti-discrimination laws.” What if a teacher were fired for reporting sexual harassment by a priest?  she demanded. What if a teacher were fired for reporting that “Sister Mary Margaret [the school principal in Biel, supra] had been stealing from the school, from the school’s till regularly, to pay for her gambling excursions to Las Vegas?”

Can you imagine a Supreme Court justice asking hypotheticals like that for any other religion? Suppose these teachers had been bringing suit against a Muslim school. Would Justice Ginsburg have asked, “What if a teacher were fired for reporting terrorist activities by the Imam? Or if bringing suit against a Yeshiva, would she have asked, “What if the rabbi had been regularly kidnapping Christian babies for sacrifice?”

And assuming without deciding that Sister Mary Margaret was wrong not to renew Ms. Biel’s contract, is that any reason to suggest that she’s gambling away the school’s funds in Las Vegas? Is there a basis in the record? Is it relevant to the Hosanna exception? What would Henry VIII say?

Good thing old Mr. Svenson works in a public high school. They’ll never dare fire him for waxing only half the floor.

Posted in Law & Parody | Tagged , , , | 4 Comments

Supreme Court hears robocall case, flushes toilet

HELLO! This is the U.S. Supreme Court reminding you that even in these difficult times we continue to supply you with the same high quality products we’ve been proudly serving up for the last 200 years. Whether it’s premium strict scrutiny or economy rational relationship you’re looking for, we guarantee 100% penumbra-free results, with bonus dissents at no extra charge! Don’t miss this limited-time-only offer! File your cert petition today! [repeat in Spanish, Chinese and Yiddish].

In one small step for severability and a giant leap for social distancing, the Supremes heard oral arguments by teleconference in a case challenging the constitutionality of the anti-robocalling law. But apparently they were checking their emails when their IT person was explaining how to press the “mute” button when they’re not talking. Because in the middle of a lawyer’s passionate defense of the First Amendment rights of robocallers, there came the distinct, unmistakable sound of a toilet flushing.

So judges are human after all. Somebody was teleconferencing from the throne.

Luis Bunuel “The Phantom of Liberty”

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

“Planet of the Humans”

You feel great about buying that energy-saving, environmentally responsible refrigerator to replace your old energy-wasting global-warming monster. Except that you don’t replace it. You exile it to the basement for storing beer. Absurdly imagining you can reduce energy consumption with more energy consumption.

That’s the basic message of Michael Moore’s new documentary “Planet of the Humans,” which we watched free on YouTube last night. A thoroughly depressing experience, bringing home what should have been obvious all along. How did we think solar panels and windmills are made? Well, duh, with all the same hazardous-to-our-planet’s-health materials and industrial processes they’re supposed to replace.

Where does this “biomass” come from that’s supposed to make obsolete those ozone-depleting non-renewable fossil fuels? From mass deforestation powered by ozone-depleting non-renewable fossil fuels. Same place you get the electricity to power electric cars.  Don’t you feel hopeful when you hear a scientist announce that we can replace coal with seaweed? Wait ’til you see what they’ve done to the ocean floor to get enough seaweed to meet a tiny fraction of our “energy needs.”

Naturally a film that describes itself as “a full-frontal assault on our sacred cows” has sparked furious criticism, including cries to “take it down.” It’s an outdated myth that solar panels last only 10 years! Why, dammit, they can last a good 20!

Missing the unpalatable point. Exposing the ties between the Green Industry and the Big Polluters isn’t half so controversial  as questioning our energy “needs.”  Look what happened to President Carter when he dared to suggest conserving fuel by driving less and putting on a sweater instead of cranking up the furnace.

Circling back to its title, the film ends with an orangutan’s fate on “Planet of the Humans” as he desperately hangs off the last branch of the last tree in the middle of a forest laid waste – and is trapped in the mud when the branch breaks.

Well, at least we can bring our own bags to the supermarket. . .

Orangutan tries to fight off bulldozer. From David Attenborough’s 2019 film “Climate Change: The Facts.”

Michael Moore Releases ‘Planet Of The Humans’ Documentary For Free On Eve Of Earth Day

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The virus, like the rain, falleth on the just and the unjust

Does the right to free speech protect falsely shouting, “There’s no fire!” in a crowded theatre? Does the right of assembly protect defying the quarantine?

Anti-lockdown demonstrators rain insults on nurses.

Imagine being incarcerated with bozos like that. Which quite a few people are being.

So long as we ignore the White House, we can more or less keep track of what the virus is doing in the non-incarcerated world. But when it comes to jails and prisons, we’re caught between Corrections Department propaganda (“everything’s FINE, just FINE”) and reliable hearsay like, “My client’s mom says they’re digging mass graves in the exercise yard.”

We need blitzkrieg inspections by credible outsiders. From our (masked) mouth to the Governor’s ears.

A recent upstate decision People ex rel. Gregor v Reynolds (2020 NY Slip Op 20086) split the baby in half, or maybe 40-60, in the light of statistics about the greater proportion of black Americans who die of the virus. The 51-year-old black man with obesity, hypertension and high cholesterol was released on bail and the apparently healthy 26-year-old undisclosed-race man wasn’t. Releasing the latter, the court explained, “would be tantamount to precedent for emptying the Essex County Jail of all incarcerated individuals solely and simply due to the possibility that the COVID-19 virus may be introduced into the jail.” If you say so, Judge.

The judge nevertheless zeroed in on the respondent, the Sheriff of Essex County, pointing out that a few apparently simple measures could make jail an effective quarantine instead of a petri dish. As it is, each detainee has his own cell, sink and toilet and can have meals brought to him. Which he probably couldn’t get at home. But that’s not enough when most infections come in through staff who are doing god-knows-what on their time off.  Maybe they’re not yelling at nurses at anti-lockdown rallies, but it’s even money they’re  socializing and shopping unmasked at supermarkets  (“But they’re my friends, they’d never give me the virus!”). So the judge recommends “verbal screening of staff for off-duty conduct.”  Of course they’d have to promise to answer honestly.

The judge’s other suggestion is to make social distancing mandatory. What?  The Sheriff makes it optional? Of all the millions of prison regs they can get in trouble for infracting, nobody’s being stopped from giving high 5’s, shaking hands and generally getting in people’s faces? Nope. And there are guys who keep doing that.

Just like our client’s mom said.

Sign in Bronx

Sign in a Bronx bodega




Posted in Prisoners' rights | Tagged | 2 Comments

The NYC arraignment scandal: part 2

A friend wrote yesterday in The Daily News:

“I am a lawyer on the front lines of the COVID-19 epidemic. I defend people in NYC who cannot afford an attorney in their criminal cases. While I am used to feeling dispensable and dismissed, it has never felt more callous than during this epidemic.

“First, a little primer on arraignments and courtrooms. Typically, the courtroom has a judge, two to three police officers guarding recent arrestees, three to four court officers who are responsible for the security of the courtroom, at least six to eight defense attorneys, two to three attorneys from the District Attorney’s Office and at least three clerks. After the interview and any other necessary work, the client is brought before a judge, who makes a decision about release or bail.

Defendant being arraigned. Source: NY Office of Court Administration (OCA) website 3/21/2020

NYC judge conducting arraignments on 3/20/2020. Source: OCA website

“So on a typical, non-pandemic day, there are at least 22 people inside a courtroom. That does not include the public who have a constitutional right to be present.

Social distancing in a NYC arraignment part on 3/20/2020

“Absolutely everyone else is still present in the courtroom: the police officers, the court officers, the district attorneys and their clerk, the court clerks and, of course, the judge. The court system has not revised its procedures to limit the number of police, court officers and court clerks appearing in a courtroom.

“To accommodate this new video procedure, courts have moved courtrooms from very spacious ones to much smaller ones. No one can determine why they chose smaller courtrooms. Furthermore, to accommodate the video, the judge, defense attorney and district attorney must appear on the video, so they are all within two to three feet of each other when we should be practicing social distancing.

“In these days of Zoom, Google Hangouts, etc, it is possible to create a virtual arraignment part. None of the attorneys need to be there. Papers can be e-mailed. Court staff could be cut back. Police officers could be kept safer. The court system is stuck in the 19th century. It must be dragged into the 21st.”

But while schools were closed and all public gatherings suspended, the NY court administration wanted to wait until over 50,000 people were infected even to think about closing the courts and eliminating in-person proceedings. Here’s what they sent out three days ago to the Brooklyn court-appointed attorneys:

Phase 1. Community Spread
 Phase 2. 25-100 certified cases citywide
Phase 3. 1,000 cases
Phase 4. 50,000 cases or more
We are in Phase 3.5
Phase 2
Jury Trials have been suspended
Existing Jury Trials can move forward- with sworn jurors
No new Jurors should be sworn in
No new GJ shall be impaneled
Phase 3-now
All community court cases will be cleared out of community court and transferred to criminal court
Arraignments will be done in person for healthy individuals
Arraignments will done by video conference for people who are infected, visibly symptomatic, self-identified as having the virus. Those people will be taken to Redhook Community Court where a line will be set up so there can be confidential and privileged video interviews by defense counsel prior to an arraignment with the Judges, and the prosecutor present.  Just to clarify the defendant who is either symptomatic or self diagnosed with COVID-19 will not appear in the court room, but video conferenced in from Redhook Community Court.
 DATS and C- Summons- adjourned for 120 days
City COURT Operations:
Court house doors are closed to the public
Only the Constitutional core functions are maintained
Everyone except for court staff will be using Skype for business
Today, three days later, there are 10,000 cases in NY and live arraignments are still going on. And some zealots are still objecting that videoconferencing is unconstitutional. Apparently not grasping that they’re just as likely to infect their clients as vice versa.

Nothing like the Corona virus for egalitarianism and inclusivity.

This just in: Baltimore’s mayor urges residents to stop shooting each other because hospital beds are needed for Corona virus patients.

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NYC courtrooms: the arraignment scandal

One of the upsides of getting arrested in NYC is that unlike in some countries where you can moulder in jail for weeks or months before you know why, here you have to be arraigned within 24 hours. You’re given a lawyer, taken in front of a judge who tells you what the charge is, you plead guilty or not guilty and are either released with conditions or, if they decide you’re too dangerous, shipped to Rikers Island.

Even in normal times, arraignment courtrooms are hellholes. The newly-arrested are herded in with bloody faces, torn clothes, weeping, shouting, crashing – the whole gamut of distress. Waiting in the aptly-named “pens” until their cases are called.

And now the Virus.

NYC public defenders, mostly from the Legal Aid Society, are going into arraignments armed with nothing but a box of gloves, shared masks and Clorox wipes to try to get their clients back out into the safety of the streets. Every precaution is being taken to make the courtrooms safe, right? Dream on.

Videoconferencing? Usually not working, and even when it works, requires a long colloquy on the record with lots of people breathing on one another, slowing the process down to a crawl.

Phoning? As one attorney said, “If E.T. could phone home, Legal Aid should be able to phone into arraignments.” Guess that’s why E.T. is science fiction.

Another attorney said, “It’s not like there isn’t a tech solution here. It’s that OCA [Office of Court Administration] is too hidebound and bureaucratic to implement one. Yes there would be glitches but there are glitches now. ”

But the scandal is the foolhardiness of court personnel literally laughing off the most elementary precautions.

From the trenches:

“Court officers/personnel are not taking this seriously at all. Yesterday, as I handed an appearance to a court officer he said, ‘We’ve all got it at this point,’ and then mock coughed. I did not find that funny at all. We’re all putting our lives at risk here and they’re taking it for a joke.”


“We are doing our part at LAS but it is very concerning how court personnel are behaving business as usual. On my shift one individual even mocked social distancing and gave a court staff colleague a hug.”


“There is no social distancing in the well area and I have witnessed people with their hands casually resting on their face and mouth area, cheek kisses between police officers, and attorneys from [other public defender organizations] just going in the back to interview clients the old way. I was invited twice by NYPD to do the same. I understand the inherent racism and otherism happening to our clients, but interviewing face-to-face in defiance makes no sense to me. The issue is one of public health and no one should be in close quarters regardless if they are in jail or not.”


“Everyone is trying their best, but I did not see ANY court officer practice social distancing all day. They need a top-down directive to avoid huddling together and showing each other stuff on their cell phones when the judge isn’t in the room. Many of them and many judges fall into vulnerable groups. It’s frankly insane.”


“I worked arraignments today, again (conflicts, but really busy). Everything remains the same. ZERO social distancing. The elitism, classism, and racism continues unabated. We’re safe as long as our ‘dirty’ clients do not enter the courtroom. Cramped quarters, in a basement courtroom. To the detriment of our health, and of society at large. There was also no social distancing at all in the two emergency parts I made appearances in as well. I have no words to describe my dismay. Simply no words.”


“Because when you enter that court room, you pass a  dozen or more people in the audience, maybe more.  Not all looking (or sounding healthy).  But that’s NOTHING compared to the massive ‘team huddle’ one enters when actually doing the arraignment.  Because you’re not at the podium with a healthy dose of social distance from the judge and court crew.  And you’re not just in the well. You’re right in there a couple feet from the reporter and judge. In fact, it is pretty much a bench conference.  Except now two courtrooms worth of staff are also invited to the bench.   You’re there rubbing elbows with a dozen or so court officers, a few clerks, multiple DA’s and their paras etc.  Social distancing is not happening. Not at all.

“And don’t get me wrong.  Everyone is amazing under these brutal circumstances.  Everyone wants to get the job done and get out!  The client is gonna be released.  It’s gonna be a June date. Let’s do this.  Should be 30 seconds right?  Wrong.  Technical difficulties run amuck. Microphones aren’t working.  Clients can’t hear, etc.  Consequently, our cases are second, third and fourth called.  So….we gotta get back into that huddle of 20 plus people multiple times a case.  The new arraignment setup has the best of intentions.  But it just doesn’t jibe with the idea of a person trying to avoid getting Covid-19.”

Wash your hands.


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