Call a rose by any other name and it’ll see you in court

Continuing Legal Education, compulsory for lawyers on the theory that they should keep up with what’s going on, now includes an even more compulsory dose of racial-genderal indoctrination. Yesterday we attended an all-day CLE (remotely, of course), where, following a string of appellate squawks lecturing on the nuts and bolts of appellate squawking, came a speaker of Asian descent talking about how she was the victim of bias.

How awful! Unfairly denied admission to Harvard? Unjustly blamed for the pandemic? The butt of racist jokes? Nope. She was given the wrong takeout order.

Wait, wait, you haven’t heard the full enormity of the incident. The name on the takeout order they mistakenly gave her was also Asian! A clear case of unconscious bias, she explained.

Fortunately for the takeout joint, she said with satisfaction, they “responded appropriately.”  Like the head of whoever mixed up the orders is displayed on a pike by the door.

As for the rest of the staff — they no longer suffer from unconscious bias when they see her coming.

So, with our newly acquired sensitivity, we were scandalized when the head of our joint issued an email to a few thousand employees entitled “RUTH BADER GINSBERG” (misspelling hur name).

Will the persecution never end?

 

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Try the new high-tech system for alienating your clients

Charlie Chaplin and the automatic lunch-feeding machine from “Modern Times.”

If it ain’t broke, there must be something you can do to screw it up. When our offices closed for the pandemic, everybody was issued a cell phone for calling clients. Just like our office phones, except now you could also text.

That was apparently working too well, because with much fanfare and gibberish, management announced an “exciting new software solution” and “a new path of communication” of automated notifications to clients.  Studies show, it was explained, that clients who are informed of their court date are more likely to show up to court than clients who aren’t. Now, thanks to the new client-centered technology, bench warrants will become as obsolete as public flogging. 

Except that the robots started sending these automated messages to random people.  “This is a message from your attorney Joe Blow who can be reached at (email and phone number). Your case is scheduled for September 15 but please do not go to court. Please confirm what name you would like to be referred by.” 

Suddenly the attorneys – who had no idea these messages were being sent – were flooded with responses, the consensus being, “Funky off, asshole!”  Well, what would you say if you got a message from some unknown lawyer saying you have a court date but you shouldn’t go? And then asking for your pronouns?

And since it’s not unusual for household adversaries to share a phone, some of these notifications were going to the complaining witnesses. So much for confidentiality. 

Even when the robot reached actual clients, their reactions ranged from confusion to yelling.  Attorneys had to spend all day soothing ruffled feathers.

When informed of the snafu, the advice from above was to “review the training materials.”  Followed by directives to make only constructive complaints.  People had worked hard to roll out this system! You have to expect glitches. Can attorneys opt out? No, the client has to opt out individually. Does “Funky off, asshole” constitute opting out? Only the robot knows. 

Finally, one of the attorneys passed along a response from a client’s mother who’d received an automated notice purporting to be from him. “I’m sure it was an oversight,” she wrote. “As you know, my son passed away.”

The attorney hopes that having to explain to a grieving mom that it wasn’t an oversight, just an experiment with our new automated system, is something he never has to do again. 

 

 

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Indoor Public Defending

Now in the 5th month of the COVID-19 shelter-in-place era, our Guv (“I live alone with a dog and we’re getting pretty sick of each other”) has just reinstated the ban on indoor public dining.

Meanwhile the courts, which have been operating through Zoom, have started sending our clients messages like this:

NYCJA Alert: Starting July 15th, NY courts will begin limited in-court appearances. When coming to court, you must wear a mask, get your temperature checked, and social distance. Family members can accompany you and must follow the same rules. Please contact your lawyer with any questions. Reply H for Help or S to Stop. 

So indoor public dining is dangerous, but indoor public defending isn’t? In courtrooms where only the judge is behind plexiglass?

The solution is obvious: outdoor public defending.

Judge: Good morning folks, my name is Woodbridge and I’ll be your judge for today. For starters, would you like to plead guilty or not guilty?

Lawyer: Depends. What are the specials?

Judge: Today’s special is three years probation and $1359 in restitution for the damage to the jetski.

(lawyer and client consult)

Lawyer: How about conditional release with community service?

Judge: That’s not on today’s menu, sorry.

Lawyer: Well, what else is there?

Judge: Five years upstate and five years post-release supervision.

(lawyer and client consult some more)

Lawyer: We’ll take the special. Does anything come with it?

Judge: Yes, indeed. The probation steward will be with you momentarily to tell you about all the attached conditions.

Client: (to lawyer) I don’t like what they serve here. Can’t we go someplace else?

Lawyer: (sighing) I’m afraid they have a monopoly.

HAPPY BASTILLE DAY!

“Allons enfants de la patreeeeee-yuh!”

 

Posted in Criminal law, Law & Parody, Satirical cartoons | Tagged , | Leave a comment

Why do cops lie? Because judges believe them.

 

Cops fibbing on the witness stand is so normal, there’s even a name for it: testilying. Or in mixed-metaphor legalese, “tailoring their testimony to overcome constitutional objections.”

A little exaggeration here, a few omissions there. Why not, when they know the judge will take their word for whatever they say? Here’s a typical example:

Sgt. Blow: I’ve been with the NYPD for 42 years. I’ve made 90,000 arrests. On October 15th, 2016, my team received a radio transmission of a drug buy and a description of the seller. It matched the defendant. We arrested him and recovered $20 in pre-recorded buy money. I recognize him in court as the gentleman in the red shirt, since the only other person at the defense table is a female.

Prosecutor: The People rest.

Court: I find the arrest and search lawful and the defendant guilty.

Defense counsel: Er, Judge –

Court: Oh, did you want to delay the proceedings by keeping this busy, overworked veteran officer on the stand so you can impugn his credibility?

Defense counsel: If I may cross-examine?

Court: Yes, of course, did you think my courtroom was the Star Chamber? Hahahah.

Defense counsel: Hahahah. (to Sgt. Blow) Sergeant, what was the description you received over the radio?

Sgt. Blow: Like I said, a description of the defendant. Coffee-colored 6-pocket Tommy Hilfiger jeans, argyle socks, Michael Jordan 901 sneakers, 24-karat gold chain –

Defense counsel: Objection, Your Honor, he’s reading from something.

Court: (to Sgt. Blow) Tut, tut, you mustn’t read from a document not in evidence. Just look at it to refresh your recollection. Then you can tell us what you recollect it says.

Sgt. Blow: Tattoo on back saying, “Big Dog,” t-shirt with cap sleeves –

Defense counsel: All this was in the radio transmission?

Sgt. Blow: To the best of my refreshed recollection, Ma’am.

Defense counsel: Did you write down the description when you received it?

Sgt. Blow: Of course not, there wasn’t time. I wrote it down at the Precinct after the arrest.

Defense counsel: And how did you know the $20 bill in his pocket was the same one you gave the undercover buyer?

Sgt. Blow: Because I made a xerox of the bill before giving it to the undercover to buy drugs with. See? It shows the same serial number as on the bill.

Defense counsel: But there’s no date stamp or anything on the xerox. How can we tell it was made before the arrest?

Sgt. Blow: Because I signed it and wrote down the time. [A.S.: we’re not making this up]

Defense counsel: Your Honor, the People have proved only that the officer described the man they arrested, who we concede was the defendant; and that the xerox matches the $20 bill. That’s not proof of anything.

Judge: I find Sgt. Blow credible. Suppression denied.

And here’s the typical hearing when there’s a confession:

Det. Donut: We took the defendant to the interview room at the back of the precinct next to the detectives’ offices. The door wasn’t locked, so he was there voluntarily.  We made small talk for 12 hours and then he voluntarily admitted that he shot Big Dog nine times by accident and he’s very sorry.

Defense counsel: Did you record the questioning?

Det. Donut: No, Ma’am.

Defense counsel: Did you take notes?

Det. Donut: I wrote up my report afterwards. Says he admitted to shooting Big Dog nine times by accident and  —

Defense counsel: What did you say to him during the preceding 12 hours?

Det. Donut: How do you expect me to remember? It was three years ago. [we’re not making this up either]

Defense counsel: Your Honor, the People haven’t met their burden of proving beyond a reasonable doubt that the confession was voluntary when there’s no testimony about how it was elicited.

Court: I credit Detective Donut that it was voluntary. Suppression denied.

If judges weren’t so unthinkingly credulous, maybe cops would have to tell the truth.  But don’t take our word for it.

Posted in Law & Parody, Satirical cartoons | Tagged | 5 Comments

Courts to replace juries with potted plants

In a move to reopen the courts with all due COVID-19 precautions, Chief Judge Bludgeon has taken a tip from a recent performance at Barcelona’s Gran Teatre del Lieu, where the audience was replaced with potted plants:

Uceli String Quartet plays to audience of 2,223 potted plants.

The concert was a project by Spanish artist Eugenio Ampudia “to show how the pandemic brought people closer to nature.” Which the British press reported as, “to reflect on the absurdity of the human condition.” Either they’ve seen too many Bunuel movies or they’re using Google Translate.

“Potted plant” has a special resonance with defense lawyers, evoking Brendan Sullivan’s defiant, “I’m not a potted plant! I’m here as the lawyer, that’s MY job!” during the Iran-Contra hearings. The Chairman had suggested that Sullivan’s client Oliver North should make his own objections.

In an exclusive interview, Judge Bludgeon told us, “Even when there isn’t a pandemic, nobody wants to do jury duty. Replacing jurors with potted plants will keep everyone safe and eliminate the cost of buying them lunch.”

“But is it constitutional?” we queried.

“Absolutely,” said the judge. “Anyone facing serious criminal charges is guaranteed a jury of twelve. Nothing says it has to be twelve humans.”

“So it could be twelve dogs?”

“Don’t be flippant!” snarled Bludgeon. “Everybody knows a dog can’t make credibility determinations. They believe anyone who pets them. But have you ever seen a biased plant? No. And by the way, we’re uncompromisingly committed to diversity. It’s not going to be all dusty rubber plants.”

“But plants don’t have any brains!” we objected.

“And your point is?”

“Well, but how do they render a verdict?”

“That’s the beauty part,” chuckled Bludgeon. “The judge decides the verdict. After all, the judge saw and heard the witnesses.”

“Surely defense lawyers will object to that!”

“They can’t. We’ve replaced them with potted plants too.”

Posted in Law & Parody, Satirical cartoons | Tagged , | 2 Comments

Do Statues Matter?

So far they haven’t pulled down Prospect Park’s bust of Mozart, despite his being a Dead White European Male. But Lincoln, standing a few yards from him, could easily go the way of General Grant and Don Quixote. Yes, Don Quixote. Well, that’s San Francisco. Here in Brooklyn the mattering lives merely explode giant fireworks all night long.

Righteously indignant iconoclasm has a long, glorious history.

Fourteenth Century iconoclasm:

Emperor Constantine orders icons destroyed

The Dutch Protestant Reformation:

17th Century English Puritans:

Cheapside Cross, London. Demolished pursuant to government warrant.

The French Revolution:

ISIS:

The glorious present:

Demolished Confederate Soldier Statue, Durham, N.C.

Addendum from a flock of counter-protesters:

 

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Sexual thoughts and the First Amendment

Mr. Bacon, a guest of the government at Ray Brook Federal Correctional Institution, wrote to his sister about the guards, “There is only one Black Woman here. I believe she is an Indian. She is very beautiful and healthy. I do want her but I want a few other women as well.”

Far from appreciating Mr. Bacon’s praise of their staff, the prison authorities sentenced him to 30 days in the box, 90 days’ loss of phone and commissary privileges, 27 days’ loss of time credited towards release and transfer to a higher security prison.

When Mr. Bacon protested that this violated his First Amendment rights, the federal court explained that he wasn’t disciplined for writing a letter, but only for what the letter said. You know, like Peter Zenger wasn’t tried for publishing a newspaper, but only for what the newspaper said. Anyway, Bacon’s letter “was perceived as a sexual threat” and “inappropriate, disrespectful and derogatory language.” So much for the First Amendment, which protects only speech that no one perceives as objectionable.

Last week a higher court disagreed, pointing out that Bacon’s letter was “a mere expression of attraction communicated by a person confined in an institutionalized setting” to a third person outside.  “Even using considerable imagination and affording substantial deference to the professional judgment of prison officials,” said the court, there was nothing remotely threatening about the letter.

The court gave examples of male prisoners’ letters to female guards that were punishable speech. Some are too steamy to be reproduced in this family-oriented blog and we’re surprised that The Federal Reporter doesn’t come with trigger warnings.

But one case mentioned by the court deserves Squawk scrutiny: where a Mr. Nawatha Slaton was punished for giving a greeting card and a comic strip to a woman guard.

Prisoner Slaton, thinking to cheer up Officer Franson who seemed to be having a bad day, left a “To Someone Very Nice” greeting card on her desk. On the inside he wrote a verse: “Ms. Franksen, it is hard to find the words thats nice enough for you./ But if these you are reading does what they are supposed to do./ Then nobody will have a nicer day than you. / From a fan of yours, ?? Guess who?” Enclosed, according to the court’s description, was a “romantic comic strip.”

When Mr. Slaton asked Officer Franson how she liked the card, she answered that she was reporting him for “making sexual proposals or threats.” In vain, he protested that it was a joke and asked her to forget it.

Since it would take “considerable imagination” to read a sexual proposal or threat into a wish for a nice day, the offending message must have been the  “romantic comic strip.” What could it have been? Porno manga?

Nope. It was Miss Peach, a long-running comic strip dating from the 1950’s (later updated to Ms. Peach) about a young schoolmarm and her kids. Here she is in her classroom:

A recurring theme is little Marcia’s constant putdown of Ira, which nowadays would probably get her expelled for bullying:

But Ira is besotted with Marcia:

The offending comic, as described by the court, shows Ira saying, “Marcia, I love you. Are you ready to make a commitment?”  Mr. Slaton had crossed out “Marcia” and substituted “Franksen.”

Marcia answers Ira, “Yes, you. To an institution.”

Get it? Then you’re smarter than the federal court.

 

Posted in First Amendment, Law & Parody, Prisoners' rights | Tagged , , | 6 Comments

COVID-19 masks for judges

From a social distance of 150 miles away, we watched NY’s highest state court judges marching into the courtroom to hear oral argument in the flesh for the first time since the COVID-19 lockdown.

All wearing identical light blue face masks.

What a missed opportunity, we thought, when masks have become the new fashion for making a statement. What better vehicle for judges to express their individual philosophies?

For example:

 

 

We’ve also designed a handy reversible mask for trial judges. Here’s for when the defense is directing the witness and the prosecutor objects:

 

 

 

 

Here’s for when the prosecution directs the witness and the defense objects:

For discussion of complex evidentiary matters:

Finally, for defendants:

 

 

 

 

Posted in Humor, Judges, Law & Parody, Satirical cartoons | Tagged | 1 Comment

Judges in trouble

What are the grounds for removing a judge from the bench?  A sadistic penchant for harsh sentences? Ignorance of the law? Telling a defendant in front of the jury that if he wants to deny guilt he has to get up and testify?

In your dreams.

A Long Island village court judge/attorney (they’re allowed to do both), Justice Paul Senzer got kicked off the bench mostly for emails to his client using three dirty words about the opposing attorney. Four, if you count “eyelashes.”

Criminal defense attorneys in the placid world of murder, rape and unlicensed vending can scarcely imagine the dog-eat-dog jungle of intra-family litigation. When grandma wants to visit little grandson but daughter won’t let her, both sides had better prepare for nuclear war.

Which was Attorney Senzer’s point in response to his client Grandma Coleman’s wishful thinking that her daughter would either give in or represent herself.  He wrote:

I don’t believe she will give in. And I don’t believe she will represent herself once we serve her.  Her lawyer is a cunt on wheels (sorry for the profanity. . . and don’t quote me). So be prepared.

In another email, he cautioned Mrs. Coleman to cut out the self-help, saying:

I need to warn you about calling the school or the counselor. There are NY cases in which the grandparents were actually denied visitation because they were too heavy-handed in spying, stalking and contacting schools, strangers and other third parties. You are going to have to moderate this conduct because they will turn it around on you. You should know by now that people who work in schools are assholes. [Mrs. Coleman had earlier pursued an unsuccessful lawsuit against a school].

He also cautioned her against refusing to come to court, saying:

I agree with you. . . however, you may have noticed that the “judge” is an asshole. An “asshole” can issue a warrant for your arrest. Just want you to know “worst case scenario.”

And finally, after explaining that she had no legal grounds for forcing her daughter to allow visits, he advised her to drop the case; otherwise the daughter “and eyelashes get to click their tongues and you go on record as having ‘lost.’ Period. End of story. Over.”

Mrs. Coleman figured that withdrawing the case entitled her to a refund of legal fees, like returning a pair of pants. When she didn’t get it, she went to another lawyer who obligingly sent a tekkie to retrieve the judge’s emails from her computer and passed them along to the Commission on Judicial Conduct. Who were duly offended, particularly at the “cunt on wheels” phrase, with “eyelashes” a close second. Disparagement of female professionals who need to be protected from gender bias! Translation: no way to talk about a lady.

But taken in context of the brutal world of family court, “her lawyer is a cunt on wheels. . . so be prepared,” was the very opposite of disparagement. He was calling her a formidable adversary. A good lawyer. And not sparing her a blue monicker when he would have used the male equivalent if she’d been a man — what could be more egalitarian?

As for referring to judges as assholes in a private email — he who is without sin, let him cast the first stone.

We had a look at the cases the Commission thought were comparable. Wild! One judge winning a fight in a bar by announcing, “I’m a judge!” Another judge hiding her drug-dealing chauffeur from the F.B.I. Another refusing to hear cases in revenge for the firing of a court clerk. And our favorite: a judge mollifying a cranky lower-court judge by promising never to reverse him.

How will the Court of Appeals decide the case? Either way, expect a lot of righteous chin music about how women professionals need to be protected.

Eyelashes

 

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

Hell hath no fury like a client scorned

After 3 months of COVID-19 “pause,” the NY Court of Appeals has announced a return to hearing oral arguments in the flesh “with appropriate safety protocols.”

We envision them hanging batlike from the ceiling.

NY Court of Appeals observes social distancing

A couple of lawfirm biggies applauded the move, declaring that “body language” can get across “points that get lost in written briefs” and that having to argue on video made it “harder to pick up on subtle nuances such as jokes.

Yes, it’s a little known fact, but prior to COVID-19, oral arguments in the Court of Appeals were occasions of great hilarity.  Here’s an example:

Scene: Court of Appeals

Lawyer: It was the negligently installed refrigerator gasket that caused my client to suffer pain, inconvenience, embarrassment, loss of consortium, mental anguish —

Presiding Judge: You mean she blew a gasket? (courtroom explodes with laughter)

Lawyer: Oh, you kid! I pick up that you’ve made a subtly nuanced joke.

Presiding Judge: (wiping the tears from her eyes) But seriously, counselor, I didn’t see anything in the record about a refrigerator gasket. I thought your client was hit by a bus.

Lawyer: I guess that point got lost in the brief. Let me get it across with body language (does a 10-minute interpretive dance).

Judges: Aha, that makes it clear! We unanimously hold for your client.

And who’s the lucky litigant who gets to test out the COA’s new safety protocols next week? The Hon. Paul Senzer, a Long Island village court justice/attorney (village court justices are allowed to practice law so long as they don’t appear in front of themselves).

He’s appealing his removal. Seems he called the opposing party some vivid names in his emails to his client. The client had no problem with his language until he advised her to drop the case. Hell hath no fury like a client scorned. The emails ended up in the hands of the Committee on Judicial Conduct. Which kicked him off the bench. What could he have said to deserve this?  Tune in for the next episode!

 

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“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 , | 4 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 , , , | 5 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:

GENERAL INFORMATION ABOUT THE SPREAD OF COVID-19 and the court’s response
 
FOUR PHASES :
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
WHAT DOES EACH PHASE LOOK LIKE FOR COURT?
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
PHASE 4
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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Squawk under house arrest

Boomer Friend: Don’t worry, the virus kills mostly the elderly.

Squawk: But we’re the elderly!

Boomer Friend: So we are! I forgot.

We feel like we’re back in 9/11 (when we were right next to the Towers).  Calling friends: “I’m alive, are you?” Except. . . now all over the world.

Actually, New Yorkers are pretty happy with social distance. Wouldn’t be surprised if elbow-bumping remained the custom.

But what about all those prisoners, locked up with no soap, no cleaning supplies? For once, Iran had the right idea: the Chief Judge ordered 70,000 prisoners released. Less threat to public safety to have them on the outside than incubating in prison.  The advantage of a totalitarian state where one man can give the order. Imagine Chief Justice Roberts trying to do that. On the other hand, 69,999 of them were probably in for blasphemy.

Not to be outdone, the Mayor has just released a million schoolkids.

Taking advantage of not yet being absolutely prohibited from leaving the house, we schlepped as much work home from the office as we could manage. Wearing a mask on the subway, which they say makes no difference.  At least it makes people keep their social distance. Who’d go near someone looking like this?

Squawk on the subway.

Posted in Law & Parody | Tagged | 3 Comments

Must be true, says so right here in the Probation Report

Who needs satire when we have the news? The world closing down around us, Governor Cuomo proudly shilling a hand sanitizer for being cheaper than Brand X and smelling like tulips (the hand sanitizer, that is). Brought to us by CorCraft, the brand name of prisoner-made products (“Cor” being short for Corrections).  Which explains why it’s such a bargain. We should be proud of our clients for rescuing us in this time of crisis from price-gouging Brand X!

♠  ♠  ♠  ♠  ♠

Looks like we’ll have to read Woody Allen’s autobiography in French, since the boys and girls of Hachette Book Group stormed out of their Rockefeller Center offices to block its publication in the U.S.  They think because there were accusations – shown to be unfounded years ago – of molesting his daughter, he shouldn’t be allowed to publish a book.  No doubt they’d have staged a book burning in the skating rink under Prometheus, but large gatherings are out these days.

So Woody’s “Apropos of Nothing” will be published in France where the #MoiAussi movement isn’t yet in total control of the arts. Alors, perhaps some brave souls will smuggle it past Customs into NY, as they did with Joyce’s Ulysses when it was banned for its “unparlorlike” language. Or maybe we can read it as a clandestinely circulated samizdat like Gulag Archipelago. Or possibly, as in Farenheit 451, Woody’s memoir will survive by being memorized by wandering exiles.

♣ ♣ ♣ ♣

Apropos of #MeToo, the Court of Appeals has finally eliminated all that silly frou-fra about proof and decided that in SORA hearings, accusations alone are clear and convincing evidence. According to the majority, if it’s on a piece of paper from a law enforcement agency, that’s good enough.

That turns SORA hearings into a farce, scolds Progressive Judge Jenny Rivera in a dissent nobody seems to have read to the end of. You need reliable evidence. Like victims’ statements.  Say what? Yes, victims’ statements. Uncorroborated, never cross-examined, never the subject of a conviction. That’s what she calls reliable?

Et tu, Jenny.

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Discovery reform in Brooklyn: fuggetabout WitCom

Now that New York has adopted the radical notion that an accused should know something about the accusations before the morning of trial, prosecutors have been scrambling to get around the new discovery laws. One of which is that the defense is entitled to “adequate contact information” for the People’s witnesses.

Taking a tip from the MTA, which invites you to “download the free app” to find out there are no trains for the rest of the night, the DA’s have concocted an app called WitCom, a portal that defense lawyers are “required” to use if they want to talk to prosecution witnesses.

When a defense lawyer objected, a Brooklyn judge said to give it a try. Result? Yes, a witness did call back through WitCom. But only because the prosecutor made her do it. In another instance, the prosecutor called up the witness’s lawyer three times, demanding that the client return the WitCall.

Look how well WitCom works! crowed the People. The witnesses responded!

Yeah, said the judge, as long as the prosecutor leans on them hard enough.  Making the defense use WitCom “is contrary to the plain meaning of the statute which calls for the People to provide contact information. WitCom. . . stands for a lack of information.”  (That’s such a good line, we almost forgive the judge for writing sentences like “when a prosecutor registers their witnesses,” or “a witness may respond when they may otherwise have blocked the call.” He needs to dust off their Strunk & White).

“To argue that the court should accept the WitCom app because millions of people use Uber, Lyft, Grubhub, etc., is ludicrous,” sputtered the judge.  “Those apps are voluntarily downloaded as a first-world convenience for the consumer. They are in no way akin to forcing an adversarial party to litigation to use an app.”

The People were ordered to cough up “an active and verified email address and cell phone number for their witnesses.”

“Are you sure it was my client who had the gun?”

 

 

Posted in Criminal procedure | Tagged | 5 Comments