Squawk goes to Washington

We recently took a trip to our Nation’s capital, staying at a pleasant Quaker hostel (“Does thee have a reservation?”) a stone’s throw from the Supreme Court.

The first thing we noticed on the D.C. Mall was the fleets of people zipping around on rented scooters.  Scooters on the sidewalk are, of course, a terrible blight and a menace to public safety. Naturally, we wanted one too.

But renting a scooter required a working cell phone and ours was out of commission from falling into the Reflecting Pool.

The way our phone got into the Reflecting Pool was that it was in our backpack when, as we were taking a nighttime stroll towards the Washington Monument, we stepped onto what looked like a dark patch of pavement and found ourselves waist deep in dank water. Luckily there was nobody around although we thought we heard snickering from the surveillance cameras. Also luckily, it was 98 degrees outside, so we were dry by the time we got back to the hostel and nobody asked, “What happened to thou?”

But we never stop thinking about our cases, which at the moment involve several appeals from subway masher convictions. So we were fascinated to see how the D.C. Metro deals with the issue. Unlike the NYC subways that indulge in unnecessary moralizing (“A crowded train is no excuse for unlawful sexual conduct”), D.C. has STOP: Sidetrack, Tell, Observe and Postpone.

Under “Sidetrack,” riders are urged to distract harassers by asking them, “Do you know how to get to L’Enfant Plaza?” If you’re already at L’Enfant Plaza, you should say, “I haven’t seen you in forever! Want to come sit with me?”

The “Postpone” method focuses on the victim. You should ask them, “Are you okay? OR Would you like me to ride with you to the next stop?'”

Well, that’s one way to meet people.

And why limit this friendly approach only to subway mashers? Next time you see a robbery, go up to the robber and ask how to get to L’Enfant Plaza. And if he answers, “What the #&*^@ are you talking about?” add,  “I haven’t seen you in forever! Want to come sit with me?”

 

Posted in Law & Parody | Tagged , , | Leave a comment

“Justice in every borough”

The other day we were glumly printing out a closing letter to a client: “Court of Appeals denied leave . . . end of the line. . .  wishing you the best for the future,” when we noticed something new on the company stationery. Marching across the page in large black letters was: “JUSTICE IN EVERY BOROUGH!”

How tactless is that? The last time our client heard about “justice” was in the prosecutor’s summation.  Or worse, when the “victim” got up at sentencing and demanded “justice.”  And since the judge obligingly handed out a generous dose of it, our guy’s not in jail, he’s in a “justice hub.”

Here’s who else has “Justice” in their motto:

Manhattan DA: “Moving Justice Forward” (like testing all those old rape kits so they can indict your client’s DNA).

Bronx DA: “Pursuing Justice with Integrity” (for a change).

Brooklyn DA: “Justice 2020” (next year).

Staten Island DA: “To Pursue Justice for Victims” (unless the accused is a cop).

Queens DA: still trying to figure it out.

We think there’s something screwy when a public defender has a motto indistinguishable from a DA’s office. If we’re going to have a slogan, it should say what we do! Here are some suggestions:

THE RIGHT TO BE PROSECUTED WITH A FACIALLY SUFFICIENT, JURISDICTIONALLY VALID ACCUSATORY INSTRUMENT IN EVERY BOROUGH!

THE RIGHT TO HAVE THE  TRIAL JUDGE READ THE JURY NOTES TO THE LAWYERS IN EVERY BOROUGH!

CHALLENGING THE VOLUNTARINESS OF APPEAL WAIVERS IN EVERY BOROUGH!

SADLY INFORMING CLIENTS THAT WE’VE LOST THEIR APPEAL AND IT’S NOT WORTH DOING A HABEAS BECAUSE THEIR CASE PRESENTS NO ISSUES CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW AS DETERMINED BY THE SUPREME COURT OF THE UNITED STATES IN EVERY BOROUGH!

Or how about this:

PROUDLY GETTING IN  THE WAY OF JUSTICE!

Posted in Criminal Defense Appeals, Satire and parody | 2 Comments

Big Brother remembers your face

As someone known for striking up earnest and meaningful conversations with people we’ve mistaken for someone else, we loved the idea of Facial Recognition Technology.

You too can learn to love FRT! For instance, assuming you don’t mind forking out $200 for a cat bowl, FRT will make sure it’s your cat eating out of it, and not the freeloader next door.

And thanks to FRT, conservationists can now identify individual giant pandas in. . . well, in China. Land of 170 million surveillance cameras where even human faces can be instantaneously matched to a behemoth database.

An efficient way of catching criminals, they say, except that “criminal” can mean someone who uses more than 2 feet of toilet paper in a public bathroom. The problem was solved by installing FRT:

(NYC avoids the problem entirely by having no public bathrooms, let alone toilet paper).

Thanks to FRT, residents of China not only have to show their faces to get on the subway, use an ATM or buy from a 7-11, they have to SMILE while doing it.

          

It can’t happen here, right? We have RIGHTS! Well, here’s how the NYPD uses FRT:

Say the police have a surveillance photo, but it’s too distorted to identify. Mouth open? No problem. Simply do a Google search for a photo of a closed mouth and paste it in:

Another NYPD technique is “creating a virtual probe,” meaning to combine two photos and look for a “match” to the resulting face.

Have you seen these people?

     

What me worry?

Posted in Civil Liberties | Tagged | Leave a comment

Prison Sex Offender Treatment vs. The Fifth

 Remember the Inquisition where you could either deny your guilt and get burned at the stake, or confess and get burned at the stake? The idea was that since confessing saves you from eternal damnation, the Inquisition was simply a strict and intensive rehabilitation program, enforcing “acceptance of responsibility” for the offender’s own good.

The notion that confessing is necessary to rehabilitation, and conversely, that not confessing equals incorrigibility remains an unquestioned article of faith in the criminal justice system. So we have these prison “treatment programs” where, if a sex offender refuses to confess to uncharged, unknown, or possibly imaginary crimes, he faces a longer sentence, denial of parole and/or other unpleasant consequences. And if he does confess, he risks prosecution, civil commitment and/or a higher SORA classification.

Imagine if every time you pay a parking ticket you have to confess to all the times you parked in front of a fire hydrant without being caught. And you can’t get your car back until you do.

Prison sex offender treatment is, as you would expect, highly scientific, based on the best Nurse Ratched group therapy methodology.  A recent Seventh Circuit decision describes a typical treatment program:

Indiana requires all inmates convicted of a sex offense to complete the INSOMM program before release. . . .

During Phase 1, which focuses on “Consent and Assessment,” participants must fill out a Sex Offender Questionnaire that asks them to identify which illegal sexual acts (for instance, rape, child molestation, or prostitution) they committed and how often.

Based on their offense history, participants are sorted into one of three risk groups for Phase 2, “Risk Based Sex Offender Treatment,” which consists of group therapy sessions led by counselors. . . .  The higher-risk groups must complete more hours of therapy. In preparation for the therapy sessions, participants must fill out workbooks that require them to describe in detail all past acts of sexual violence and abuse, regardless of whether they were ever charged for those offenses. . . .

As INSOMM stresses to its participants throughout the program, they enjoy neither immunity nor confidentiality for any of the disclosures they make at any stage. Moreover, participation is an all-or-nothing affair: inmates may not opt out of any part of the program, and they are required to respond fully to all questions asked. A counselor who suspects that a participant has been either deceptive or less than forthcoming has the discretion to order polygraph testing. Such an order triggers a requirement for the participant to fill out a detailed Polygraph Sex History Questionnaire. A participant is excused from admitting responsibility for an offense only if the polygraph examination indicates no deception and the counselors agree that the participant is being truthful.

 Failure to participate satisfactorily in INSOMM is costly. It is treated as a Class A or Major Conduct disciplinary violation. That is the same class assigned to rioting, escape, rape, or assault on prison staff.

The particular Class A violation at issue in our case—Code 116, “Refusing a Mandatory Program”—applies to a much broader range of conduct than a flat-out refusal to participate. Inmates who refuse a polygraph examination, deny parts of their offenses, give answers that are deemed to be incomplete or dishonest, or otherwise fail to “adhere to treatment expectations” also qualify for a Code 116 violation. The INSOMM counselors make the final decision whether an inmate’s conduct merits disciplinary action.

For a first Code 116 offense, inmates are penalized (among other ways) by placement in a credit class that denies them the opportunity to accrue good-time credits. These are credits to which they would otherwise be entitled by statute. . . .

If an inmate persists in whatever conduct gave rise to the disciplinary action—such as by refusing to admit a particular crime or answer a particular question—he is regarded as committing a continuing Code 116 violation punishable by revocation of 180 days of already-acquired good-time credits for every 60 days during which the noncompliance continues. While the violation is ongoing, the inmate is barred from earning new good time credits. Some class members have lost all of their accrued good-time credits as a result of this system.

The decision describes the questions the inmates have to answer:

First, in the disclosure assignments that make up part of the core-group workbooks, the program directs the participant to be “detailed and specific” about each victim he has harmed, using a separate sheet for each one.

In the Medium Risk Core Group Workbook, the questions that the participant must answer for each past act of sexual violence or abuse include the participant’s age and the victim’s age at the time of the offense; the first name of the victim; the participant’s relationship to the victim; “what parts of [the participant’s] body” touched “what parts of [the victim’s] body”; “how many times [the participant] offended the victim and over what period of time”; “where and when” the abuse occurred; how the victim was selected and groomed; and the types of force used to ensure the victim’s compliance.

The High Risk Core Group Workbook includes these questions and more: it also asks the participant to describe “in detail the set-up of the sexual abuse of each victim”; patterns among his victims, such as their age, appearance, and race; “when and how” the abuse started with each victim; and “in what ways [the participant’s] … sexual offending behavior change[d] over time.”

If counselors find any of the responses to those questions to be inaccurate or incomplete—a determination they have unfettered discretion to make—they can refer the participant for a polygraph examination.

Such a referral starts with the obligation to fill out yet another, equally intrusive, questionnaire. The polygraph questionnaire asks highly specific questions, such as: “How many children have you physically forced into sexual activities? Describe what you did.”; “How many times have you had sexual contact with someone who is handicapped? Describe.”; and “How many times have you made child pornography (taken pictures, video-tapes, films, etc.) of nude children or children engaged in sex acts? Describe.”

The participant must also “write the number of times” that he has masturbated in each of 31 different public places, indicate the most recent time he exposed himself to someone, and describe times when he had sexual contact with someone who was drunk or under the influence of drugs. For each victim, the participant must indicate whether he engaged in any one of 27 specific actions and how many times, including whether he “put [his] penis inside [the victim’s] vagina (even a little bit),” “threatened [the] victim with harm,” or “masturbated in front of [the] victim.”  Lacy v Butts (7th Cir. 2019).

Doesn’t pass the constitutional mustard, said the Seventh Circuit. It’s self-incriminating to admit that you put your penis into a [non-consenting] vagina (even a little bit).  Ditto masturbating in any of 31 public places. And if you lose good time credits, i.e., have to serve more time, unless you admit to it, that’s compelled. “The Fifth Amendment draws one sharp line in the sand: no person shall be compelled in any criminal case to be a witness against himself.”

No doubt the Hoosiers can fix it so that non-confessors’ prison terms won’t be longer, just worse. Which the Supreme Court has no problem with.

Posted in Prisoners' rights, Satire and parody, Satirical cartoons, sex offenders | Tagged , , | 4 Comments

Easter Bunny convicted of kidnapping, trafficking

Defendant E. Bunny appeals her conviction of kidnapping of minors, trafficking and disorderly conduct. For the reasons stated below, we affirm.

Contrary to defendant’s laughable argument, her arrest was entirely lawful. Police Officer Cluck credibly testified that based on his training and experience, a rabbit carrying a basket of colored eggs in an Easter-prone neighborhood provided reasonable suspicion that criminal activity was afoot.  The fact that the officer conceded on cross-examination that he had never arrested a hippopotamus carrying a basket of eggs does not support an inference of selective enforcement.

In any event, the level of suspicion was raised to guilty as hell when, in response to Officer Cluck’s lawful inquiry, “Where the f*%$#@ do you think you’re going with those eggs?” defendant admitted, “To an Easter Egg Hunt.”

Defendant contends that it is an unwarranted extension of the Penal Law to include unhatched eggs within the definition of  minors where, as here, they were purchased in a supermarket with their frozen and packaged mothers in the next aisle. We disagree.  The Legislature’s authority to make broad classifications is not diminished by the mere fact that some minors might not be eggs. Although we leave for another day the question of whether an egg over 18 years of age is a minor, it is undisputed that eggs and minors share the same vulnerabilities, such as underdeveloped brains. Therefore, as a matter of law, eggs are minors.

There is no merit to defendant’s argument that the People are obliged to show which came first, the chicken or the egg.  The People need only show that there is a rational relationship between the two. Whereas there is plainly no rational relationship between rabbits and eggs.

The dissent, always trying to show who’s the smartest person in the room, claims that the Easter Bunny is but another form of Santa Claus, and that if the latter is lawful, so is the former. The dissent overlooks the obvious distinction that Santa manufactures his own toys, while the Easter Bunny unlawfully asports unborn chickens and conceals them in places where they will not easily be found.

Affirmed.

Judge Thumper dissents in the following opinion:

The Majority, getting the facts all wrong as usual, ignores that defendant was originally arrested and charged with unauthorized possession of jelly beans. It was only after discovering that the arresting officer had eaten the evidence that the People changed their theory to kidnapping based on painted eggs recovered from defendant’s basket.

According to my erudite scholarly historical research on Wikipedia, the Easter Bunny has a long and venerable tradition. Originally a Druid god called the Œaster Porcupine, it gradually morphed into a child-friendly figure like Santa Claus. Indeed, the original Articles of Confederation contained a provision that adult rabbits carrying colored eggs at Easter would not be subject to tariffs. The Majority, applying an overly technical reading of the kidnapping statute, deserves to get coal in its stocking.

I dissent.

Posted in Criminal Defense Appeals, Humor, Law & Parody, Satirical cartoons | 5 Comments

Is it legal to threaten to behead the Chief Clerk of the Court?

Have you ever had the Clerk of the Court reject a brief that you’ve labored over for months just because you signed in black ink instead of blue? Refuse to accept your brilliantly insightful case-of-first-impression masterpiece because you wrote “Printing Specifications Statement” instead of “Certificate of Compliance”? Send back your papers until you file a motion for permission to file a motion for permission to file a motion for permission to file a motion for permission to file a motion?

True, we never thought of threatening to behead the Honorable Chief Clerk. That would be wrong. But we had to snicker when an irate pro se plaintiff, after being repeatedly fined for frivolous litigation, phoned her and threatened to “chop off her head for not doing her job.” “I hope someone kicks the shit out of you and I wish cancer on your family,” he added.

The Clerk had the man arrested, put through the system and charged with aggravated harassment, a jailable crime defined as making threats over the phone with “no purpose of legitimate communication.”  With words that “by their utterance alone, inflict injury or tend naturally to evoke immediate violence.”

The case went to a judge who had one eye on the real world where, let’s face it, most people are aggravating; and the other eye on the First Amendment, protector of aggravating speakers. She sensibly threw out the case.  As “rude and inappropriate” as it was to “wish misfortune” on the Clerk, as she delicately put it, the phone call was clearly for the legitimate purpose of complaining about a public official’s not doing her job.

The judge cited another case where a woman, fed up with getting the runaround about her parking tickets, called up the village Parking Violations Bureau.  On getting an answering machine, she left a message telling the parking officials that she’d “have their job” and “You should all die of cancer and your children too.” The Court of Appeals properly concluded that complaining about government action on an answering machine set up to receive complaints is a legitimate purpose of communication, even if “crude and offensive.”

In deciding whether an utterance alone inflicts injury, contemporary mainstream society tends to agree that you can’t cause injury by wishing. So it’s not a true threat to hope your enemy will get cancer. As another NYC court held, “a threat to place a curse, hex, jinx, voodoo, root, evil eye, enchantment or other such spiritual, mystical or magical attack on another neither inflicts actual injury nor naturally invokes immediate violence.” In other words, putting a curse on somebody is constitutionally protected speech. See People v. Rigoletto.

Even less was the threat to chop off the Chief Clerk’s head a true threat, considering that ISIS has yet to invade Brooklyn.

In sum, the right to yell at bureaucrats is the bulwark of a free society. The Penal Law isn’t a book of etiquette.

Norman Rockwell “Freedom of Speech”

Posted in Criminal law, First Amendment, Law & Parody | 4 Comments

What is ineffective assistance of appellate counsel?

Ye blind guides, which strain at a gnat and swallow a camel. — Matthew 23: 24.

In an unusual burst of candor, New York’s highest court recently confessed to what we’ve always suspected: if your appeal is a loser, it don’t amount to a hill of beans what your brief is like. People v. Alvarez (2019).

The issue was: does a badly written brief constitute ineffective assistance of appellate counsel, entitling Mr. Alvarez to a second shot? Fuggetaboutit, said the majority.  Granted, the brief “was somewhat terse, could have been better drafted, and is not a model to be emulated.” But how bad a brief could it be if the First Department understood it well enough to affirm the conviction? And where, in the same decision, the court affirmed the convictions of the two co-defendants, whose hot-dog appellate lawyers had raised the same issues?

So the majority decided that appellate counsel — a court-appointed sole practioner admitted to the Bar in 1958 and now appearing before the Great Court in the Sky — wasn’t ineffective “under our undemanding standard.” (Undemanding standard? We’ll remember that next time one of their nitpicking clerks calls up about some piece of paper we forgot to send).

But the two dissenting judges couldn’t resist scapegoating the lawyer for everything that’s wrong with the system, including that the appellant had been sentenced to 66 and 2/3 years, is desperately ill, and has 40 more years to go before he can even apply for parole.

The dissenters, one a former California white-shoe lawyer and the other a former law professor from New York City’s leading safety school, have no clue what it’s like to argue to the First Department.

Counsel “waited” over three years to file! scolds the professor.  The case was on the dismissal calendar, definitive proof of his moral laxity! Didn’t seek leave to the Court of Appeals! Didn’t write to the client! Didn’t cite cases, didn’t spell right, didn’t proofread, confuses “legal sufficiency” with “weight of the evidence,” incorrectly refers to the People as “plaintiff-appellee,” and — trigger warning for anyone traumatized by bad grammar — “uses the contraction it’s for the possessive.”  

The judge helpfully supplies a link to the offending brief to give “quick and easy perpetual access” so that “practionioners, educators and law students” can spit at it.  “To the organized bar,” she intones, “I ask: Is this an acceptable work product? Would any one of your members submit this on behalf of a client?”

Okay, okay, the lawyer should have put the brief through spellcheck and dropped a line to the client now and then. As for “legal sufficiency” versus “weight of the evidence,” we have yet to see a People’s brief that understands the difference. How come they never get rapped on the knuckles?

As for appellate counsel’s “waiting” three years: the only lawyers who can say they’ve never had an appeal where three years elapsed between being appointed and filing the brief are either 1) lying; 2) working for some little boutique outfit; or 3) living someplace where there hasn’t been a trial since Lizzie Borden. Hell, in an appeal from a New York City trial, it can take three years just to get the complete record.

Same with having a case on the dismissal calendar which, despite its scary name, only means you have to move for an extension of time. It no more makes the lawyer incompetent than having an overdue library book makes you a thief.

The bottom line is that none of counsel’s shortcomings made any difference to the result.  You can be sure that, unlike Mr. Alvarez’s lawyer, the co-defendants’ lawyers correctly wrote “its” for the possessive and didn’t make typos like “there was no proof that treats to the witnesses came from any of the defendants.”  And the record shows that after losing in the First Department, they dutifully sought leave in the Court of Appeals to get that piece of paper saying “denied.”

Oh, but the New York test for ineffective assistance is whether there was “meaningful representation,” says Judge Jenny. Not like the big bad Federal standard that requires a reasonable probability that, but for counsel’s errors, there would have been a better outcome. QED, we can find appellate counsel ineffective for errors but for which there’s not a snowball’s chance in hell the outcome would have been better.

Judge California, taking the angle compassionate, goes after the lawyer for failing to urge the First Department to reduce the sentence in the interest of justice. Did we mention that Mr. Alvarez  was convicted of being an enforcer for a drug gang and shooting a 14-year old dead and permanently maiming a 15-year old?

“Because I have great faith in the commitment of the Justices of our Appellate Division to the interests of justice,” comfortably opines the judge, “I do not conclude that a request by Mr. Alvarez to reduce the minimum term of his sentence would have been doomed to failure.”

It would be nice if he’d cited even one First Department decision reducing a sentence in the interest of justice in any remotely comparable case. At best, the court sometimes shaves off a year or two in a drug possession case, often over an indignant dissent. But then, “faith” according to believers, means “we believe because it’s absurd.”

The judge’s clinching argument for finding the lawyer ineffective is: “Were Mr. Alvarez your son, would you have instructed his lawyer not to ask the Appellate Division to exercise its interest of justice jurisdiction to reduce the sentence?”

Our readers (if any) will be astonished to hear that we have a personal axe to grind.  Of course, it’s barbaric to sentence anybody to more years than he can possibly live. Nobody has the right to predict that a person will never be rehabilitated.

But all this judicial grandstanding and a dime gets you a cup of coffee. We had a client similar to Mr. Alvarez, the difference being that there was an issue that no reasonable jurist would fail to recognize as reversible constitutional error.  And although we didn’t apply the California method of choosing issues by asking “what would we do if he were our son?” we did argue for reduction of his 100-year sentence.

Judge Wilson’s faith notwithstanding, the Appellate Division weasled out of the constitutional violation (“under the [unspecified] circumstances we find no error”) and of course didn’t reduce the sentence. A dead body, three seriously injured bystanders and some earthy remarks at sentencing? No way, unless the judges wanted their photos on the front page of the NY Post.

We sought leave in the Court of Appeals. Denied. No, no, there’s some mistake, we thought. Our guy was deprived of one of the few trial rights that the U.S. Supreme court uncompromisingly upholds. We tried again. Denied. By the same social justice warrior judge who wants law students to sneer in perpetuity at bad writing in a brief.

Straining at gnats and swallowing camels.

Posted in Criminal Defense Appeals, Law & Parody, Satire and parody | 5 Comments