Maestro James Levine

James Levine is one of the greatest living conductors and musicians of our time. We know this because the Metropolitan Opera Orchestra, which usually gets up and leaves as soon as they’ve played the last note, would stay in the pit to join in the applause when Maestro Levine was the conductor, even back in the days before he had to conduct from a wheelchair.

Now he’s been destroyed by accusations from four middle-aged males claiming that he ruined their lives by masturbating them decades ago when they were 16 and 17 years old. The Met responded by summarily canceling all his scheduled appearances.

Apparently nobody is so nitpicking as to question the veracity of these accusers, let alone ask why it took them 40 years to speak up, or what sudden access of public spirit induced them to accuse him now. Given that none of these traumatized victims allege that they were forced, nobody dares ask: even if he touched their precious junk forty years ago during that brief era when sexual freedom wasn’t a contradiction in terms. . . so what?”

We’re not a musician, but we and millions of others have been inspired for most of our conscious lives by James Levine as a pianist and conductor.  Now this insane society is ready to annihilate him with no one so far uttering a peep in his defense.

We hope no reputable conductor will agree to substitute for him in his cancelled performances. We hope everybody who has tickets to those performances will exchange them for something else. We hope somebody more important than a mere appellate squawk will stand up for him.

Posted in Civil Liberties | Tagged | 3 Comments

“What cross-race charge? What are you talking about?”

“All the identifying witnesses were speaking from casual observation of men they had never seen before, men of foreign race, under circumstances of unusual confusion.” Felix Frankfurter, The Case of Sacco and Vanzetti (1923).

We recently watched an oral argument in the Court of Appeals involving a Brooklyn man accused of stabbing a stranger to get his cell phone. At trial, defense counsel had asked the judge to give “a cross-race charge,” referring to New York’s jury instruction added in 2011 to the book of standard jury charges.

“What cross-race charge?” retorted the learned judge, who apparently hadn’t updated his charge book in awhile. “What are you talking about?”

Although there was no question that the defendant and eyewitness were of different races, the judge ended up giving only the standard charge about credibility and opportunity to view, leaving out the 2011 addition that says, “You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness’s identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.”

The prosecutor at the oral argument, after some chin music deploring wrongful convictions, opposed any cross-race instruction. “It’s not neutral,” he kept bleating. It talks about cross-race identification “in a negative fashion!” If there must be such an instruction, it should only tell the jury to consider what effect, if any, the race difference had on the identification.

A couple of the judges gently explained that the point of giving the instruction is that the cross-race effect is negative. The scientific consensus is that cross-racial identifications are more likely to be mistaken than same-race i.d.’s, but most jurors don’t know this. “Since when are courts in the business of telling jurors things not within their ken?” the prosecutor sneered back.

Since when are courts required to give only neutral instructions? Imagine this:

“Ladies and Gentlemen of the jury, you may consider whether the People have proved the defendant’s guilt beyond a reasonable doubt and what effect, if any, that might have on your verdict. You may also consider what adverse inference, if any, to draw from the defendant’s failure to testify. As for visiting the crime scene, reading or watching media accounts or discussing the case outside the jury room, you may consider what effect, if any, that might have on your ability to reach a verdict based only on the trial evidence.” 

The rule in Massachusetts and New Jersey is that a cross-race instruction is mandatory whenever identification is at issue unless both parties agree that it’s inapplicable to the case. The instruction goes, “If the witness and the person identified appear to be of different races (or ethnicities), you should consider that people may have greater difficulty in accurately identifying someone of a different race (or ethnicity) than someone of their own race (or ethnicity).”

Unlike NY, the Red Sox Republic relies on scientific consensus about the cross-race effect instead of folk psychology about “ordinary human experience.” The full charge explains that memory is not like a video recording that can be replayed unaltered, but a process of encoding, storing and retrieving that can be tainted at any of those stages. “It annoys me no end to hear it argued that it’s not appropriate for judges to instruct on science,” said the Chief Judge of the Massachusetts court at a recent Innocence Project event.  “If you don’t give the charge, you’re misinforming the jury. You’re urging them to use common sense when the science is counter-intuitive.”

Defense counsel urged the Court of Appeals to adopt the Massachusetts rule. “But we’re talking about New York now,” answered one of the judges. Well, yes. When it comes to implementing safeguards against misidentification like double-blind lineups, expert testimony or jury instructions, the Brooklyn DA’s Office can be counted on to oppose them tooth and nail.

They might as well object to the tide coming in.

Addendum: A month later the Court of Appeals held that courts must instruct the jury about the unreliability of cross-race identification. Judge Michael “Homeland Security” Garcia, after duly genuflecting to the notion that misidentification is bad, nevertheless fumed that a mandatory instruction trespasses on the trial judge’s holy discretion. In our humble opinion, most trial judges – except for the nuts who get reversed over and over for making up their own jury instructions – would rather have a clear mandate than have to think about it every time.  

People v. Boone

Posted in Criminal Defense Appeals, eyewitness identification, Law & Parody | Tagged , , | Leave a comment

Court admits expert water-dunking testimony as relevant, helpful to jury.

 The trial court did not abuse its discretion in admitting expert testimony concerning defendant’s failure to pass the water-dunking test. Dr. Brimstone, who has testified in over 200 witch trials, was plainly qualified to explain to the jury that immersing a suspect in water has long been accepted by the forensic dunking community as a reliable technique for determining guilt.  Defendant failed to proffer scientific research supporting his criticisms of dunking methodology, which in any event, go to weight, not admissibility. It is well-established that admissibility is firmly within the sound discretion of the judge who can admit whatever the hell he wants so long as it’s been admitted before.  We find no error where, as here, the testimony was clearly relevant to a matter at issue and helpful to the jury in reaching a guilty verdict.  — United States v. Serious Science (2017).

We stole this idea from Judge Nancy Gertner (Ret.), famous for her caustic wit when it comes to pseudo-science in the courtroom. The occasion was the Innocence Project’s 25th Birthday bash, celebrating a quarter of a century of exonerations, but also puzzling over why they’ve made hardly a dent in everyday judge-think.

Another refreshingly forthright voice at the party was Chief Judge Harry Edwards of the DC Circuit, who oversaw the National Academy of Sciences Report in 2009.  The NAS Report, if you remember, rocked the criminal justice system by exposing forensic “science” as nothing but the opinions of cops in labcoats. “Just being based on science doesn’t make it scientific,” said Judge Edwards. “That’s like saying a movie is based on a true story.”  “Experts” testifying to “100% certainty” that a bullet, footprint, hair or bitemark “matches” the defendant’s gun, shoe, head or teeth is just humbug.  No matter how carefully you peer through a microscope, it’s meaningless to say that two objects are similar if you don’t have a database and statistics to know what similarity means.

In other words, it’s like declaring a match between two faces because they both have two eyes and a nose.

Gertner and Edwards agonized over why neither the NAS Report nor the even more devastating 2016  PCAST report has had so little effect in the courtroom. “It drives me completely out of my mind that judges are still admitting bitemark testimony,” said Edwards. “It doesn’t matter whether the lab follows standardized procedures if the whole field has never been shown to be valid or reliable.”

Noting how the present administration has put forensic science reform under the control of the Department of Justice, Edwards called the situation “a nightmare.”  Reform can’t be left in the hands of prosecutors, “who created the problem in the first place,” he said.  There has to be an independent agency of “real scientists” to create “a culture strongly rooted in science.” But the DOJ snuffed out the burgeoning National Commission on Forensic Science and replaced it with an in-house “working group” headed by a career prosecutor who thinks “the jury is still out on bitemarks.”

“And that’s why we’re not going anywhere,” said Edwards.

Both judges agreed that criminal defense attorneys need to take more initiative in challenging pseudo-science. Gertner recalled her frustration at hearing an arson expert testify like this:

Expert: I had Billy the Dog inspect the scene of the fire. I looked into her eyes and saw that she was telling me it was arson caused by a fire accelerant.

Judge: (to defense lawyer) Any objection?

Lawyer: No, judge.

Expert: I could tell by the position of Billy’s tail that she wanted me to know the fire was ignited by a petroleum distillate so as to collect insurance on the property.

Judge: (being driven completely out of her mind) Any objection, counsel?

Lawyer: No, judge, I’m good.

Edwards and Gertner were unsparing of their colleagues. “Non-science is enshrined in judicial opinions,” said Edwards. Courts simply repeat experts’ claims that their field has a zero error rate. No scientific discipline has a zero error rate. “Judges will not get off their duffs until real scientists come in with real studies,” he concluded.

Gertner saw the problem as that trial judges are never reversed for admitting evidence so long as there’s precedential authority for it. “Courts conflate legal precedent with general acceptance in the scientific community,” she said. “Someone needs to be reversed for admitting shoeprint or bitemark testimony.”

She castigated the judicial “dodge” of saying that the discrediting of these forensic disciplines “goes to weight, not admissibility.”  What if the prosecution proffered expert testimony on dunking? Would it be within the judge’s sound discretion to admit it?

Next: How they do things in Massachusetts.


Posted in Forensic "science", Judges, Law & Parody | Tagged , , , , | 5 Comments

Chief Judge orders prosecutors not to be crooked and defense lawyers not to be incompetent

The Chief Judge adopted the “groundbreaking recommendation” of the  NY State Justice Task Force Report  that from Jan. 1,  all New York State trial judges must issue an order in every criminal case directing prosecutors to disclose evidence helpful to the defense. Judges must also order defense counsel to provide competent representation, which means having “a reasonable knowledge” of criminal and evidentiary law. 

We snagged a member of the Force who agreed to speak to us anonymously.

Squawk: Seems like there’ve been several Task Forces about the criminal justice system over the past few years. How do they work?

A. The procedure is that we periodically meet for lunch at a big law firm and tell each other how wonderful we are. Then we issue a groundbreaking recommendation that makes the front page of the NY Law Journal and is never heard of again.

Q. But surely your recommendations about prosecutor misconduct will have some effect?

A. Darn tootin’. The first thing we decided was that “prosecutor misconduct” is an offensive, discriminatory term that should no longer be used.  Unless you can prove beyond a reasonable doubt that the prosecutor acted from evil-minded conscious malicious premeditated wickedness.

Q. What should normal prosecutor misconduct be called?

A. The correct term is prosecutorial oopsy-daisy.

Q. How do prosecutors decide what evidence is favorable to the defense?

A. Same way you decide how many unicorns are in your garden. Favorable evidence is an imaginary creature dreamed up by defendants. If it existed, there wouldn’t be a prosecution.

Q. What about other kinds of prosecutorial oopsy-daisy? Let’s say the prosecutor materially misrepresents the evidence on summation?

A. That certainly calls for a good scolding. Why, only last week a case came out where the prosecutor told the jury, “the signs of defendant’s unbridled obsession were still on him in the form of a white t-shirt covered in the victim’s blood,” when there was actually nothing but three tiny droplets. The Appellate Division said it was a gross exaggeration and improper.

Q. And reversed the conviction?

A. Of course not. That prosecutor has suffered enough.

Q. What about your recommendation that defense lawyers have a “reasonable knowledge” of the law? Isn’t that setting the bar awfully low? What if an airline pilot announced, “Ladies and Gentlemen, I have a reasonable knowledge of how to fly a plane?”

A.  Are you suggesting that the already-overburdened court system should allow a new trial just because the defense lawyer didn’t know what s/he was doing?

Q.  Well, sort of.  How do you expect change if courts never reverse convictions for  prosecutor misconduct or defense counsel incompetence?

A. Who said anything about expecting change?

The elephant in the room


Posted in Criminal Defense Appeals, Law & Parody, Satire and parody, Satirical cartoons | Tagged | Leave a comment

“Hands up, motherf*cker! This is a request for information!”

The fact that defendant may have been the only person in the photographic lineup wearing white sneakers does not render the lineup unduly prejudicial  – even though the victims’ description of the perpetrator included white sneakers – as the clothing at issue is not unusual and is an extremely common item of clothing.” People v. Campbell (AD1 2017).

And if  that’s not enough to show the lineup wasn’t suggestive, the definitive proof is that “two of the four victims were not able to identify defendant.” Apparently a lineup isn’t suggestive unless the suspect is so conspicuous that it’s impossible not to pick him out.

Fortunately, we don’t have to worry that “defendant” (why the article-deprivation?) was misidentified. He was “near the crime scene” (i.e., in the neighborhood) when shots were fired “and matched the general description of the suspect” (i.e., male black).

Did that give the cops probable cause to arrest, or reasonable suspicion that he’d committed a crime, or even “a founded suspicion that crime is afoot”?

Doesn’t matter, said the court, because when they ordered him “to stop and put his hands up in the air,” that was a mere “approach to request information.”

Moral: There’s no such thing as an unreasonable search and seizure if you’re guilty.

Approach to request information

Posted in Criminal law, eyewitness identification, Law & Parody, Satirical cartoons | Tagged , | 2 Comments

“Give me a lawyer, dawg.”

The Louisiana Supreme Court recently decided that a suspect in custody had failed to unequivocally invoke his right to counsel, based on his statement transcribed as, “If y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

The court found it obvious that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel.”

We’re not making this up.

h/t to Simple Justice 

From an alert reader:Law dogs LA

Posted in Criminal law, Law & Parody | 9 Comments

President Trump takes to the street

We donated a dollar and he blew us a kiss.

P.S. Squawk has gone legit! See us in “The Crime Report,” the online zine of John Jay College of Criminal Justice.



Posted in Humor, Law & Parody, Satire and parody | Tagged | Leave a comment