Advising your client to waive future ineffective assistance claims

Waiver IACWhen the prosecutor offers your client a plea on condition that he waive any possible ineffective assistance claim against you, what should you do?  Why, just put a pen in his hand and show him where to sign, according to a recent ethics opinion by the NY State Bar Association.

But isn’t that a teeny bit of a conflict of interest? you ask. To advise your client to waive her constitutional right to effective assistance of counsel when you’re the counsel? Not at all! says the Ethics Committee. If you haven’t been ineffective, then you’re just giving your client good advice!

But ineffective assisters of counsel don’t know they’re ineffective. That’s why they’re ineffective!  They never got the memo about the immigration consequences of pleading guilty.  They didn’t realize they should have looked at the lab report or talked to that witness or figured out whether the statute of limitations bars prosecution of that 40-year old offense.

Scene: Courtroom.  

A.D.A. Tightskirt:  We’re offering a plea to 20 years on condition that the defendant waive his right to appeal anything whatsoever in any case past, present or future including ineffective assistance of counsel.

Client: (to his lawyer) 20 years just for drinking beer in front of my house? That don’t sound right to me.

Lawyer: Believe me, Mr. Jones, this is a fabulous deal.  You could get life without parole as a mandatory persistent felon if you’re convicted at trial.

Client: I’m not Jones, I’m Rodriguez! This is my first arrest!

Lawyer: Whatever. Sign here.

Judge: Sir! Has your attorney explained to you that a condition of pleading guilty is that you can’t challenge the effectiveness of his representation?

Client: You mean I have to take his word for it that he hasn’t been ineffective?

Judge: How dare you question your lawyer’s competence! Mr. Layback is a seasoned, experienced attorney who’s been coming before me for years and is deeply mindful of the importance of clearing my calendar. The reason he can tell you he’s not ineffective is that he isn’t ineffective. It’s only if he were ineffective that he would have to tell you he’s ineffective.

Client: Huh?

Judge: That’s exactly why you need to rely on Mr. Layback’s legal advice!  As an ignorant layperson, you can’t possibly be expected to understand the law.



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

The high price of making money

Public defenders and Legal Aid attorneys are happier than fancy white-shoe law firm types,  reports the NY Times.  According to a recent study,  overpaid big shot lawyers are depraved on account of they’re deprived of  “feelings of competence, autonomy or connection to others, ” not like us poor-but-happy folks in polyester suits.

Scene: Typical public defender office.  Plaster falls from the ceiling every time someone walks in the door.  Single window propped up with “Fisch on Evidence.”  Everyone radiates feelings of competence, autonomy or connection to others. 

7 dwarfs

Lawyers (singing): Hi ho! Hi ho! It’s off to court we go! We wait wait wait for our case to be called, we wait the whole day through. It ain’t no trick to get rich quick, with a client we didn’t pick. In a court! In a court! In front of a judge in a court!

Doc: (singing) If you want to be happy for the rest of your life, never get caught with a gravity knife! So from my personal point of view, get a public defender to represent you.

All: (singing) Happy talky talky happy talk! Talk about things you’d like the court to do. You got to have a case. If you don’t have a case, what’s your indigent client gonna do?

Happy:  Say,  Dopey,  I hear your client got life without parole on a littering charge.

Dopey: (singing) I feel competent! Oh so competent!

Grumpy:  Couldn’t afford an expert for a psychiatric exam.  So (singing) I did it MY way!

All:  (singing) That’s the sound of the public defenders, workin’ on the chain gang. All day long we go to court, til the sun goes down. All day long we see the judge wearin’, wearin’ a frown. And sayin’ Huh! Ha! Huh! Ha! Huh! Ha! (fade out).

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

The “science” of sex offender risk prediction

Judge with crystal ball Every day, Mr. X, age 81, travels two and a half hours by bus and subway from the shelter where he lives to visit his 84-year old disabled wife. She still lives in the apartment they shared for decades until 2002 when he was convicted of a low level sex offense.  After shopping, cooking and having a meal together, Mr. X makes the long trip back to the shelter in time for curfew.

Mr. X is one of thousands of persons in New York who will never be allowed to go home after serving their sentences because a judge has decided that they present a maximum risk of committing another sex offense.  How does a judge decide?  By adding up the numbers on a “risk assessment instrument” concocted by five former parole officers that purports to be a predictor of an individual’s risk of recidivism. It’s based on the highly scientific principle that whatever bad thing you did before, you’re bound to do it again.

Psychs and defense lawyers have been screaming for years that this so-called instrument is no more reliable than flipping a coin.  Actually less reliable, since a coin gives even chances, whereas this instrument is skewed towards the highest risk level.  Prosecutors naturally love the chance to pile more punishments onto people who’ve already been punished, but they’ve never managed to dig up a single expert to say that this humbug predicts recidivism. Which is surprising, considering how they can always find some disgruntled PhD or right-wing fraud to say that stress improves eyewitness accuracy or that there’s no such thing as a false confession.

When it comes to punishing people in advance for crimes they haven’t committed, there are two schools of judicial thinking, represented by Savaranola and Lysenko. Savoranola being the puritanical fanatic of Florence who made a bonfire of art and books because they might corrupt the little minds of children. Lysenko of the Soviet Union was notorious for concocting fake genetic theories to shore up the Party line.

The Savoranola school, of which AD1 is the headquarters, makes no pretense that risk prediction is anything but denunciation for the past offense,  indulging in such purple prose as that it was of  “unusual repulsiveness,”  evinced “depravity” or  consisted of  “monstrous acts of debauchery on his own flesh & blood.”  The Lysenko judge professes an erudite interest in matters scientific and psychological, but somehow always reaches the same conclusions as Savoranola.

In fact, not even scientific instruments are good enough predictors to justify inflicting punishment in advance. A study in the British Medical Journal comes to the conclusion that risk assessment instruments are fairly good at identifying low risk individuals but have alarmingly high rates of false positives. As forensic psych blogger Dr.  Karen Franklin says:

What that means, in practical terms, is that to stop one person who will go on to become violent again in the future, society must lock up at minimum one person who will NOT; for sex offenders, at least three non-recidivists must be detained for every recidivist. This, of course, is problematic from a human rights standpoint.

It’s also a teeny bit problematic from a constitutional standpoint.  Must we wait until someone actually commits a crime before punishing them?  ‘Fraid so.

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

Justice Alito on the wall

fly as Justice ThomasI would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops.” — Justice Alito dissenting in Rodriguez v. U.S. (2015) .

Mr. Rodriguez, tooling along a Nebraska highway at around midnight, turned onto the shoulder of the road “for one or two seconds.”   A cop, horrorstruck by this reckless hot-rodding, pulled him over and busted him for illegally “driving on a highway shoulder.”

After a mere 20 minutes of computer checks of Mr. R. and his passenger and interrogating them about why they had gone to Omaha, what they had done there, and where they were going now, the cop issued a traffic ticket.  Then he made them wait around some more while he went to get a sniffing dog, who nosed out a bag of meth.

Waiting for Snoopy unreasonably prolonged the stop, said Justice Ginsburg, reasoning that while cops can check out a car’s registration, “a dog sniff is not fairly characterized as part of the officer’s traffic mission.”  The meth had to be suppressed.

Justice Scalia joined her opinion, knowing firsthand how annoying it is to be kept waiting to be issued a traffic ticket.

But Justice Thomas dissented that “an overwhelming odor of air freshener,” combined with the passenger’s looking “more nervous than your typical passenger,” plus not giving a good enough explanation of why they went to Omaha added up to reasonable suspicion. After all, the Framers of the Constitution never intended the Fourth Amendment to protect using air freshener, let alone going to Omaha without probable cause.

Justice Alito  chimed in, saying that the decision was “perverse” and that cops would secretly figure out a way to get around it. He longed to be “the proverbial fly on the wall” (as opposed to in the ointment), with the following result:

Scene: Nebraska Police Academy.

Instructor: Today’s lesson is how to make a traffic stop for Driving While Hispanic that passes constitutional mustard.  Carstairs, stop flailing your arms!

Officer Carstairs: Can’t help it, sir, there’s a gigantic black fly buzzing around my head.

Instructor: Pay no attention, that’s only Justice Alito. Your Honor, I suggest you stay on the wall for your own safety.  Now, who can tell me how Rodriguez v. U.S.  has altered the jurisprudential landscape, Fourth Amendment-wise?

Officer Krupke: Exemplary of a crypto-originalist approach masquarading as texualist interpretivism, if you ask me, sir.

Justice Alito: Bzzzzz!

Officer Dangle:  With all due respect, Officer Krupke’s analysis fails to take into account the evolving consensus of emanations and penumbras.

Justice Alito: Bzzzzzzzzzzz!

Officer Williams: If the cop would of just brought the dog over when he stopped the car, the Court wouldn’t of had to write all that megillah.

Justice Alito: Bzzzzz! Bzzzzz!

Officer Dangle: Who needs a dog when we can do the sniffing ourselves?  Just the other day I stopped a car and detected an overwhelming odor of marijuana emanating from underneath the vehicle.  Gave me reasonable suspicion to tear the whole car apart.

Instructor: Did you find any pot?

Officer Dangle: No, but there was a stolen credit card in the trunk.

Justice Alito: Bzzzzzzzzzzzzzzzzzzzz! Bzzzzzzzzzzzzzzzzzzzz!

Officer Carstairs:  (Swatting) Dammit, I don’t care who you are, you’re driving me nuts!  Justice Alito falls off the wall.

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

Squawk is sent to anti-bias training

Squawk forcefedAlthough not convicted of any crime, our office was sentenced en masse to  a Compulsory Corporate Thought-Reform Program where we spent the day chanting, “Four legs good, two legs bad.”   “The trouble with you people,” said our trainer disgustedly, “Is that you think there’s free speech in the workplace. Well, there isn’t.” Hey, at least we have diversity:Diversity in the workplace

Posted in Civil Liberties, Humor, Law & Parody, Satirical cartoons | Tagged , | 7 Comments

How to send strictly work-related email

Squawk typing

How do you communicate important stuff to your colleagues when your boss refers to email as “our business equipment” and decrees that it shall be used for  “business purposes only”?  Take a tip from these policy-compliant emails:

The Supreme Court held today that warrantless searches of closed containers are presumptively constitutional if anyone knows a good dentist who takes our insurance, preferably in Brooklyn.  Justice Kennedy announced the decision from the bench although not tomorrow’s rally in front of City Hall protesting the latest bombing of a schoolbus in Gaza.

Justice Scalia dissented that once the police have opened a closed container it is by definition no longer a closed container so that Fourth Amendment protection is not available, although a lovely 2-bedroom apartment in Fort Greene is available, just a 5-minute walk to the subway, pets ok.

Starting a trial tomorrow – does anyone have a sample cross-examination of an expert in Crypto-Bismo facial recognition? Alternatively, a home for two adorable kittens?

Congrats to the newly-appointed Deputy in Charge of Bedbug Removal who will be setting up mandatory trainings; also not to be missed are Joe from Special Litigtion and his Punk Didgeridoo Band next Saturday at the Poisson Rouge.  Please stop these extremely disruptive non-work related emails unless you’re interested in two tickets to the Knicks tonight, $350 each OBO.

Practice advisory:  check your Junk Mail folder at least twice a day, especially if you’re waiting for an answer to your Motion for Enlargement, which could be misunderstood by the IT Czar. In fact – why not simply send all your emails directly to Junk Mail, since that’s the one folder everybody checks?  They can’t say the garbage is company business equipment. Or can they?

Posted in Humor, Law & Parody, Satirical cartoons | 4 Comments

How to write People’s appeals


Are you an unrecognized Great Legal Mind? Do you love throwing people in jail but don’t have what it takes to wow a jury? Has your prosecutorial career been unfairly hindered by irrational social prejudices against your personal habits, such as drunk driving? Do you need extra $$$ until you’re old enough to get at your trust fund?

If you answered yes! to any of the above, then People’s appeals are for you! They’re fun, they’re easy and they’re guaranteed to win. Best of all, you can berate criminals to your heart’s content from the comfort of your cubicle without having to look at them in court.

All you need is the mind of a virtuous kindergartner and a computer with spellcheck. We supply the rest.  Just clip out the attached coupon and send it to your local DA. Be sure to put it to the attention of the incumbent, since the former DA might be in jail and you could get stuck writing a defendant’s brief. Ha, ha, just kidding!

Enclose a complete set of fingerprints, palmprints, your retinal scan, DNA profile and semen sample. As soon as you and your family have been satisfactorily investigated, you’ll receive your FREE People’s Appeals Starter Kit containing:

  •  A signed color photo of the DA suitable for framing.
  • A defense brief.
  • The People’s Appeals Bureau Standard Template™, approved by the National Junta of District Attorneys.
  • The People’s Appeals Bureau Automatic Phrases, Adjectives and Adverbs™ software, approved by same.
  • A FREE bonus copy of “The Handy Dandy Guide to the U.S. Constitution” by King George III.
  • A FREE bonus bumpersticker saying, “The Presumption of Innocence is a Theory.”

Frequently Asked Questions

Q. What is the purpose of the People’s Appeals Bureau Standard Template™?

A.  It enables us to ensure uniformity by filing the same brief in every case. We think of our briefs as like cars coming off the assembly line identically manufactured but with room for individual variations such as furry dice hanging from the inside mirror or a dog with blinking eyes in the rear window.  After all, a People’s brief only needs to say, “Defendant’s arguments are unpreserved and in any event without merit and the defendant’s guilt is overwhelming and this Court should not disturb the court’s judgment/jury’s verdict.” In some jurisdictions, we simply file a form with checked boxes.

Q.  What is the People’s Appeals Bureau Automatic Phrases, Adjectives and Adverbs™ software?

A.  Many People’s Appeals Bureaus aspire to the tone judicial although as noted, a form with checked boxes is perfectly adequate to ensure affirmance. Our Automatic Phrases program fills in legaloid responses such as, “The right to [name of constitutional right] is not unlimited,” followed by a random cite to a Supreme Court case.  Those who aspire to the wit judicial may choose,  “There is no constitutional right to [take up two seats on the subway] [stab your business partner 27 times],” or whatever the defendant’s crime was.

The program automatically precedes any reference to a defendant’s exculpatory statement  with “self-serving,” and “defense expert” with “paid.” A court’s discretion is  always  “sound,” and “based on its opportunity to see and hear the witnesses.” Unless, of course, the ruling was against us. In that case, “discretion” is automatically replaced by “the judge’s personal policy preferences.”

Q.  Can People’s briefs be written by a robot?

A.  Yes, they usually are. We also send robots to oral argument although they tend to short-circuit when asked an unexpected question. Not that it makes any difference to the outcome, of course.

Q.   Then what’s the use of hiring humans?

A.   So they can go out on maternity leave, enabling us to delay our responses until the baby is old enough to vote.  But don’t imagine for a moment that we stifle individuality. For instance, instead of saying, “defendant’s arguments are meritless,” you can say, “without merit,” or even “utterly without merit.” When it comes to original thinking, the sky’s the limit.

Q.  What if even with the Standard Template, I can’t think of an answer to the defendant’s argument?

A.  Easy peasy. Answer something else and say it’s the same thing.  The court will never notice, since they don’t read the defense briefs.

Q.  Will I have to read a lot of cases?

A.  You should certainly cite as many cases as possible, but reading them is strictly optional. What counts is YOUR opinion! After all, you learned the difference between right and wrong at your mother’s knee. If you can go through life without breaking the law, why should you tolerate it when other people do?

Q.  Sounds like People’s appeals are for me! Rush me my Free Starter Kit right away!

Bumper sticker

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