“Thrusting counsel upon the accused against his considered wish”

The Constitution forbids “thrust[ing] counsel upon the accused against his considered wish.”  — Faretta v. California (US 1975).

The right to self-representation embodies one of the most cherished ideals of our culture: the right of an individual to determine his own destiny. . . . Respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires. —  People v. McIntyre (NY 1974).

 One who is his own lawyer has a fool for a client. — Old Saw.

The NY Court of Appeals recently upheld a trial court’s refusal to let a defendant be his own lawyer, finding his request merely “equivocal.” Here’s the colloquy:

DEFENDANT: Your Honor, excuse me, your Honor.

COURT: Yes?

DEFENDANT: I would like to know if I could proceed as pro se.

DEFENSE COUNSEL: Pro se.

COURT: In other words, you want to represent yourself?

DEFENDANT: Not just that represent myself, but having limitation with my counsel—

COURT: No, I don’t do that. You either have a lawyer, or you don’t have a lawyer. I don’t have legal advisors. You choose to represent yourself, you sit there by yourself. You want to have a lawyer, you have a lawyer. All right? August 7 for conference. August 13 for trial.

The defendant tried again later, saying, “I was asking if I could go pro se with standby counsel.” The judge, an adherent of the Let’s Get This Over With school of adjudication, said nix without further inquiry.

On appeal, Chief Judge “Suburban DA” DiFiore, an adherent of the Fiddle the Facts school of adjudication, opined that just because the defendant said he wanted to represent himself with the aid of standby counsel (which is normal practice), what he really meant was “dual representation” (which is verboten).  Therefore, the trial judge was right to blow him off.

Judge “Bad Boy” Wilson disagreed.  True, a pro se defendant isn’t constitutionally entitled to standby counsel. But just asking for one doesn’t cancel out the request to go pro se.  Wilson compared it to ordering a burger with fries, imagining the following scenario:

CUSTOMER: Sir, excuse me, sir.
CASHIER: Yes?
CUSTOMER: I would like to order a Big Burger.
CASHIER: In other words, you want two all-beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun?
CUSTOMER: Not just that, but I would also like fries with it—
CASHIER: No, we don’t do that. You either have a Big Burger, or you have fries. We don’t serve combinations. You choose a Big Burger, you sit there without fries. You want fries, you have fries only.
All right?
Next customer.

This really pissed off the Chief Judge, who called the dissent’s “fast food” analogy “inapt and inappropriate.” ” Whatever its intended effect,” she sputtered, “the use of such a rhetorical device trivializes the constitutional rights of defendant”  (indignant italics added).

But. . . but. . . the dissent was upholding the right! It’s the majority who decided that a defendant unwittingly forfeits it by not reciting the exact words of the magic formula.

The elephant in the room, to coin a phrase, is that nobody wants to see serious criminal charges defended by an amateur.  For all the pieties about individual autonomy and determining one’s own destiny, you really don’t want your client going to jail “under his own banner,” i.e., because of a crappy defense.  Even the most overworked public defender could have negotiated a better deal for Jesus or Socrates.

The trial judge in NY’s 1975 case, supra (where the defendant asked to go pro se with a lawyer on the side and nobody found it equivocal), was more candid.

COURT: You know exactly what’s going to happen. The defendant will start questions, there will be an objection sustained. The defendant will start looking at the ceiling and looking at the wall, and he won’t know what to do.

DEFENDANT: I wouldn’t.

COURT: He thinks he’s probably the greatest lawyer and God’s gift to the legal profession. That comes after talking with three or four jailhouse lawyers. But you and I, Mr. Legum (defense counsel) know that he’s not a lawyer.

DEFENSE COUNSEL: The defendant asks for permission to speak to you himself as to why he wants to represent himself.

COURT: No, he can talk through you. He can tell you what he intends to do.  He doesn’t know at the very outset — I’m being asked to permit a man to defend himself when he doesn’t know at the very beginning that he’s not under any obligation to defend himself. He said to you, and I heard him, that he’s under an obligation to defend himself.

Is the jury on the way?

DEFENDANT: F*** [sic] the jury. I’m not going to trial. (Whereupon the defendant jumped up, knocked the chair over).

Ok, our clients are masters of their fate and captains of their soul, but does that mean they should have a fool for a lawyer? We f***ing don’t have the answer.

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

Bronx judge finds solution to trial delays: eliminate attorneys

A Bronx judge, fed up with the prosecution’s shilly-shallying while the accused waited in jail for three years, threatened to conduct the trial sans attorneys, according to In Justice Today.

Not since Columbus and the egg has there been such a brilliantly obvious solution to what had hitherto appeared to be an unsolvable problem. Here’s how an attorney-free trial would look:

Judge: Ladies and Gentlemen of the jury, the defendant is charged with murder. Since there are no attorneys, there will be no opening statements, arguments or witnesses. The defendant, of course, is present.

Defendant: I’m innocent.

Judge: [to jury] I will now charge you on the law.  The defendant is presumed innocent unless the People prove his guilt beyond a reasonable doubt. What’s your verdict?

Jury: (shrugging) Not guilty, what else?

Columbus and the egg. Engraving by William Hogarth.

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

Appellate Squawk celebrates National Poetry Month

In a drive to remedy the disproportionate underrepresentation of poetry, April has been designated National Poetry Month. Schoolchildren will march on Washington chanting, “Make poems, not tests!”  The ABA will henceforth require lawyers to participate in remedial poetry readings. The NY Court of Appeals has ordered all briefs filed in April to be written in iambic pentameter.

Poetry has traditionally been a staple of summation arguments, from prosecutor Marc Antony’s “For Brutus is an honorable man,” to defense counsel Portia’s “The quality of mercy is not strained but falleth like the gentle rain from heaven,” to Johnnie Cochran’s immortal, “If the glove don’t fit, you must acquit.”

A more recently developed legal-poetic form is the jingle in personal injury lawyer ads. These feature such gems as, “We turn your pain into rain,” showing a happy client being showered with dollar bills, or the blank verse, “I am the hammer/ They are the nails,” referring to slow-paying insurance companies. Recognizing that a good poem admits of multiple interpretations, one firm declaims, “If your wound ain’t mending/ We’ll give you a happy ending.”

An entire blog devoted to satirical legal verse from haiku to limericks is MadKane who claims to be a “recovered” lawyer, although anyone who comes up with stuff like this is clearly on the verge of relapse:

What the Law’s About [to be sung to “The Hokey Pokey”]

You have to dot those i’s.
You’ve got to cross those t’s.
You have to seem so wise.
You must justify those fees.
And if you’re smart and lucky
You will turn your case around.
That’s what the law’s about.

For the client-centered, the richest source of law poetry is the booming-from-cars genre, such as 2pac’s “16 on Death Row,” whose narrator laments, “Dear Mama, these cops don’t understand me/ I turned to a life of crime ’cause I came from a broken family,” and ends up advising, “I’m convinced self-defense is the way/ Please, stay strapped, pack a gat every day.”

We enthusiastically recommend a dip into Poetry of the Law, Kader & Stanford, eds., for everything from Sir William Blackstone’s “A Lawyer’s Farewell to His Muse,” (poet who can’t get a job except at Burger King reluctantly decides to go to law school), to Lewis Carroll’s “The Barrister’s Dream” (Snark defends pig charged with deserting its sty), to Martín Espada’s “The Legal Aid Lawyer Has an Epiphany” (on finding his storefront office window smashed).

And for those of us constantly defeated by judicial decisions copied straight from the People’s brief, there’s Alexander Pope’s defiant salvo, “‘Tis hard to say if the greater want of skill/ Appear in writing or in judging ill.”

Happy National Poetry Month!

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The ultimate bail reform: shoot the client

The injustices of the for-profit cash bail system are obvious. It jails people who’ve been accused — not convicted — of a crime, just because they can’t pay the often exorbitant fees set by judges. The billion-dollar bail bond industry flourishes while the unransomed may be held for months or even years awaiting trial, with the taxpayer footing the even more exorbitant cost of jailing all those people.*

Washington D.C. eliminated the money bail system over 20 years ago, replacing it with non-incarceratory conditions. The result is an 88% return-to-court rate — better than the national average. New York, ever on the cutting edge, is now talking about doing the same.

But an Oklahoma bailbondsperson found a simpler solution:  shoot the client.

Ms. Chasity [not a typo] Carey, running a bail bond office in downtown Stillwater, summoned her client Brandon Williams to her office, saying she wanted to buy his car for her son.  Her real aim was to revoke Brandon’s bail – apparently he wasn’t fully paid up – and take him to jail.

The surveillance video shows Brandon, a cheerful young redneck in a tank top and baseball cap, coming in with some paperwork and taking a chair in front of Chasity’s desk.  He shakes hands with her son, a tall skinny teenager, saying, “You’re [just] a boy, ain’tcha?” He chats amiably about cars, advises the kid never to drive a Mustang wearing heavy boots. . .

and, making himself at home, removes one sneaker to examine a blister under his sock.

Chasity, a tough 42-year-old cookie in jeans and a Budweiser t-shirt, gets up from her desk, locks the door behind Brandon and orders him to stand up against the wall. Brandon complies, still holding his shoe, asking in bewilderment, “What’s going on here?”  Chasity orders him to turn around to be handcuffed.

“What? What do you mean? What are you doing?” asks Brandon. “I’m not getting no cuffs.”

“Actually, you are,” says Chasity. Her son approaches with the cuffs.

“Why are you doing this to me?” protests Brandon. “Open the door.”

Chasity and her son block the door.  Brandon turns away from them and walks past the desk and off-camera to get out through the window. The video shows Chasity going behind the desk, pulling away the desk chair, opening the center drawer and taking out a gun.

Carey to desk

She aims the gun with two hands and fires a bullet into Brandon’s back.

You hear a cry of “No!” Then silence.

The son cries, “Mom, you just shot him!”

“I did,” Mom answers calmly. “Call the police.”

The boy is utterly distraught. “911,” says Mom helpfully.

Chasity, apparently unaware of what the video showed, claimed that Brandon had tried to take the gun from the desk drawer, but that she got to it first and shot him in self-defense. The county prosecutor charged her with a single count of first-degree murder.

Chasity was defended by Stevenson Law Firm whose roadside billboard reads, “Just Because You Did It Doesn’t Mean They Can Prove It,” (the Oklahoma cut-the-crap version of “Just because you did it doesn’t mean you’re guilty”).  Mr. Stevenson triumphantly noted that the one-count charge gave the jury only the choice between finding premeditated murder and acquittal. Since “premeditated” under Oklahoma law apparently requires proof that the defendant planned the murder sometime the night before, preferably in writing, the jury properly acquitted.

Chasity is reportedly considering a career change, since her bail bond business has likely taken a dip. For some reason, Stillwater defendants prefer to take their chances in jail.

 

*See the 25-minute documentary, “Inside America’s For-Profit Bail Industry.”

 

Posted in Law & Parody | Tagged , | 5 Comments

Relax, baby, I’m gay.

The Second Circuit has just held that it was wrong to fire a skydiving instructor for telling a customer he was gay.  Under Title VII of the federal law, a person can’t be “discharged because of a homophobic customer.”  Zarda v. Altitude Express, Inc., dba Skydive Long Island.

Sounds perfectly sensible, although Title VII, unlike New York law, doesn’t expressly designate sexual orientation as a protected category. But the court applied the principle of unio non sequitur ipsi dixie to construe the statute according to evolving standards of penumbras and concluded that sexual orientation is a subset of sex.

The dissents didn’t buy this.  Although they wrote 100 pages proclaiming their fealty to oppressed minorities, complete with learned quotations in ancient Greek, dazzling references to the Frankfurt School and indignant reminders of the days of “Help Wanted: Negroes need not apply,” they nitpickingly concluded that if Congress wants to include sexual orientation in Title VII, they have to say so.

Simple Justice says the skydiving outfit doesn’t have the money to appeal to the Supremes. Still, we could imagine them reversing, perhaps invoking the principle of e pluribus loquitur. (NB: for every canon of statutory construction, there’s always one that says the opposite). Justice Thomas would write a concurrence saying there was no such thing as sexual orientation in 1789, and the three ladies from New York would issue a ringing defense of equality and social justice.

But we think the real problem with the Second Circuit’s decision is that Zarda wasn’t “discharged because of a homophobic customer.” He was fired because a woman customer complained that he’d touched her inappropriately and that he’d tried to excuse this by saying, “Don’t worry, I’m gay.”

In other words, he was fired for allegedly being a jerk, a category not protected under Title VII.

Here’s the story: 19-year old Rosanna, a waitress from Long Island, celebrated her birthday by going on a skydiving adventure with her boyfriend. Recreational skydiving, as we discovered from our Google research, doesn’t require any special skills, such as remembering to pull the parachute cord. Instead, the customer is harnessed under a “tandem master,” illustrated below, who takes care of these details:

Rosanna had no problem with being harnassed to tandem master Zarda and laughed off the hilarious jokes from the other instructors suggesting that her boyfriend ought to object. But as they sat in the plane waiting to jump, Zarda put his hand on Rosanna’s hip and his chin on her shoulder in a way that made her uncomfortable.  “It was unnecessary,” she said in her deposition. “I mean, he didn’t have to rest his hand on my hip. Once you’re fastened, you’re fastened and you can put your hands on your side.”

Zarda apparently realized that she was annoyed, because as they were drifting down, suspended from the open parachute, he said he hoped he hadn’t made her uncomfortable on the plane, but “Don’t worry, I’m gay.” He then related that he’d just broken up with a man.

Rosanna’s boyfriend, who’d witnessed Zarda’s nuzzling on the plane and learned that she was upset, told Zarda’s boss. The couple didn’t threaten legal action, demand that Zarda be fired or complain that he was gay. Their beef was simply that he’d ruined Rosanna’s birthday skydive with his unprofessional behavior. The boss, who’d previously had complaints from women about Zarda, fired him.

Now, it doesn’t take a #metoo crank to see that if a man realizes that his touching has made a woman uncomfortable, it only adds insult to injury to say, “Don’t worry, I’m gay.”  The insolent message is, “You have no right to object to my touching, because I’m not sexually attracted to you.”

In fact, Zarda’s complaint filed in federal court makes exactly that argument. While not denying the allegation of gratuitous touching, he finds it  laughably irrational that it could be considered “inappropriate.” Because, he explains, since he’s gay, he couldn’t have done it “to gratify himself sexually.” Therefore, according to him, he was fired because of a complaint by a “homophobic person who objects to being near a gay man.”

The Second Circuit swallowed this whole, assuming without a word of discussion that Zarda was “discharged because of a homophobic customer.”

The lesson, ladies, is that if you find yourself being pawed by a gay man, don’t be a homophobe! Console yourself that he’s not being gratified sexually.

 

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Deadly meteor expected to demolish Earth any minute

Having a disproportionate effect on young black males.

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Appellate Squawk’s Radiant Institute of Continuing Legal Education

Addition and Subtraction for Attorneys  Explore the mysteries of arithmetic in this empowering seminar guaranteed to improve your ability to calculate everything from billable hours to SORA points. Prerequisite: Introduction to Counting.

How to Use Comas and Other Punctuation The nuts and bolts of proofreading.

Advanced Strategies for Filling Out Forms Hands-on skills workshop with special attention to online forms that trap you into an endless loop of “that is not a valid response.”

What Every Lawyer Needs to Know about Girl Scout Cookie Compliance Regulation Negotiating compulsory purchase in the workplace. First Amendment infringement or narrowly tailored measure to prevent girls from becoming extinct? Does having last year’s cookies still in your desk drawer constitute a ground for exemption?

Critical Issues in Document Reproduction When do they have to give you a new toner cartridge instead of telling you again to shake up the old one?

Recent Developments in Pigeon-feeding Prohibition Law Does a finding of breadcrumbs in a shopping bag constitute reasonable suspicion? Faculty includes representatives of the growing  #Wepooponyourbuildings movement.

Navigating Best Practice Core Value Task Force Metrics for Stakeholders Your window of opportunity to leverage the exciting cutting-edge learnings impacting today’s most solutions.

Vituperation for Appellate Attorneys  Tired of punting, “respondent’s assertions are unsupported by the record”? Learn new and exciting ways of calling your adversary a goddam liar.

Hot Topics in Jury Selection: Getting the Liberals to Keep their Mouths Shut “Does anyone think this crime is trivial?” the prosecutor sweetly inquires. You watch helplessly as your best prospective jurors walk into the trap. “He’s on trial for shoplifting a toothbrush from Walmart? Are you kidding?” they chortle smugly, thereby getting themselves instantly kicked off the panel and leaving you with a jury of bring-back-public-flogging types.  Emphasis on mime and interpretive dance. 

W.S. Gilbert “Trial by Jury.”

Coping with the Troglodyte Judge  When are tranquilizer darts legal?

Bench and Bar Dialogue. Pursuant to the Chief Judge’s Excellence Initiative, all judges are required to listen to attorneys’ suggestions for reform. Sold out through March 2025.

Posted in Humor, Law, Law & Parody, Satirical cartoons | Tagged | 8 Comments