Judge Bludgeon rules on cyberbullying

Back in the days of the Roman Empire, the mad Emperor Caligula had the penal code placed at the top of a tall column in the Forum.  Judges soon got tired of shinnying up and down whenever they had to look up the law and started secretly improvising instead. Hence the origin of “judicial discretion.”  It was not until the invention of the file cabinet that laws were printed on paper and it began to be considered bad form to enforce them without fair notice of what they were.

So we were flabbergasted to learn from Simple Justice that the NY State Senate has just passed a bill criminalizing cyberbullying without providing a smidgen of a definition of what conduct constitutes that offense.  Surely the law has to be struck down as unconstitutional.

Fugettaboutit, says Justice Bludgeon, the controversial Brooklyn judge who tried to return Manhattan to the Indians for a refund. In a case of first impression, he writes:

Defendant Stinky K. stands charged with cyberbullying after texting 125 “Yo mama” jokes to her classmates.  As an initial matter, we reject her claim that the statute is void for vagueness. Laws are presumed to be constitutional, otherwise they wouldn’t have been passed.

To be sure, a superficial reading of the statute might suggest that it contains no definition of cyberbullying. But statutory construction must not be nitpickingly over-technical.  The Legislature is not obliged to adhere to a rigid litany, catechism or rosary.  As Supreme Court Justice Potter famously observed regarding hardcore pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Indeed, any law enacted for the purpose of protecting children is by definition constitutional.

That is not to say, however, that the statute at issue does not suffer from a grave deficiency: it is not named after a child. But it is not for this Court to cure legislative oversights.

We accordingly find Stinky K. guilty as charged. Sentence will be imposed as soon as the bill is passed in the Assembly and signed by the Governor.

So ordered. Bludgeon, J.

Posted in Criminal law, Law & Parody | 3 Comments

Cake, religion and Summa [obscenity deleted] Laude

We didn’t make this up: a proud mom ordered a cake to celebrate her son’s graduation “Summa Cum Laude.”  The bakery took it upon itself to eliminate the obscene word “cum,” and replace it with dashes, as shown above.

Can’t be too careful these days. A celebratory cake was the subject of the just-now-decided Supreme Court case Masterpiece Cakeshop where a Christian Evangelical baker declined to create a wedding cake for a gay marriage ceremony, while offering to provide the couple with any other kind of baked goods. The Colorado Civil Rights Commission called the baker’s religious scruples “a despicable piece of rhetoric” of the sort used to justify slavery and the Holocaust, and enjoined him from making any wedding cakes unless he agreed to provide them for same-sex marriages. As a result, his mom-and-pop bakery lost nearly half of its business.

The Supreme Court decision cannily focuses on the Commission’s hostility to religion while ducking the issue of compelled speech. Justice Kennedy, duly invoking the dignity, respect etc. due to same-sex couples, nevertheless concluded that sneering at the baker’s beliefs “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

It’s hard to know what this limited decision means for the baker.  Presumably any same-sex couple can request a wedding cake and sue him again if he refuses, this time in front of a Commission that’s learned to be more politic in its language.

While not sharing the baker’s beliefs, we sympathize, knowing what it’s like to be hounded by a junta of “the offended.” Justice Thomas’s concurrence, recognizing that the right to speak entails the right not to be compelled to express unwanted ideas, says it all (citations omitted):

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

A contrary rule would allow the govern­ment to stamp out virtually any speech at will.  After all, much political and religious speech might be perceived as offen­sive to some. As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.

If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitution­ality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”

Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails. “A speech burden based on audience reactions is simply government hostility . . . in a different guise.”

Consider what Phillips [the baker] actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “I’ll make your birthday cakes, shower cakes, sell you cookies and brown­ies, I just don’t make cakes for same-sex weddings.” It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. . . .

Nor does the fact that this Court has now decided Obergefell v. Hodges somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted and unentitled to express a different view.”

This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.”  If Phillips’ continued adherence to that under­standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected. “T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”

Masterpiece Cakeshop v. Colorado Civil Rights Commission (Thomas, J., concurring).

Posted in Civil Liberties, First Amendment | Tagged | 9 Comments

Stalkers of Lady Justice

Which of the below is not the slogan of one of the New York City District Attorney’s Offices?

  1. “Committed to Public Safety, Fairness and Equal Justice.”
  2. “Moving Justice Forward.”
  3. “Steadfast for Justice.”
  4. “To Pursue Justice.”
  5. “Pursuing Justice with Integrity.”
  6. “A Seedy Cesspool of Sex-Fueled Parties.”

Okay, #6 doesn’t count, since it’s not the official slogan of the Bronx DA’s Office, just an observation by one of the staff.

The correct answer is #3.  Although practically identical to the mottos of the Brooklyn, Manhattan, Bronx and Staten Island DA’s Offices, it’s the watchword of the city’s largest public defender’s office. Whose slogan used to be “Making the Case for Humanity,” a play on the double meaning of “humanity” as all people and humaneness. No longer: they’ve caught the Justice Bug. Poor Lady Justice! Whether being moved forward, pursued or steadfasted, everybody wants a piece of her.


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Quality clobbering at Rikers

New York City’s jail guards are highly offended at a poster displayed on the jailhouse walls exhorting them to “KEEP CALM AND REMEMBER EGOS AND UOF [Use Of Force] DON’T MIX.”

The sign went up in response to the federal monitor’s recent report that Rikers Island guards were excessively hitting and pepper-spraying detainees.  The notice continues:

“We are rolling out training and mentoring teams as well as refresher sessions at roll calls, Wonderful Wednesdays, forums and brown bag lunches on how to make sure if you have to use UOF, it’s a Quality UOF.”

 Yessiree, when it comes to being shellacked, only Quality UOF will do.

“This isn’t fucking Ford Motors!” objected the President of the Corrections Officers Benevolent Association, who has evidently not attended Wonderful Wednesday.

Here’s the poster we’d like to see in the Appellate Division:

P.S. From a Texas jail:

h/t Alex Bunin, Harris Co. Public Defender

Posted in Criminal Defense Appeals, Law & Parody, Prisoners' rights, Satirical cartoons | Tagged , | Leave a comment

“The Constitution does not require Florida to join New York in la-la-land.”

Whenever a court invokes the old saw that constitutional rights can’t be stopped at the prison gate, it’s even money that the decision will do exactly that. The latest is the 11th Circuit’s upholding of the Florida Department of Corrections’ (FDOC) total ban on the magazine Prison Legal News (PLN). A sample of the current issue reveals what a security-threatening incendiary rag it is:

  1. In the Eye of the Storm: When Hurricanes Impact Prisons and Jails, by Matthew Clarke
  2. North Carolina Woman Attempts Bail Bond Scheme from Inside Jail, by Monte McCoin
  3. Porn Reading Rooms in Iowa Prisons Placed on Legislative Hit List
  4. U.S. Coast Guard Operating Inhumane Floating Prisons, by Christopher Zoukis
  5. Wrongful Death Case Against New York Jail Settles for $101,500, by Derek Gilna
  6. Nebraska Sheriffs Profiting from Jail Phone Contracts, by Christopher Zoukis
  7. Phony New York Lawyer Defrauds Prisoners, Sent to Prison, by Edward Lyon
  8. North Dakota: Altered Pencil in Prison Results in Weapon Possession Conviction
  9. Pro Se Rhode Island Prisoner Wins First Amendment Settlement, by Derek Gilna
  10. Oklahoma Lawmaker Introduces Bill to Lift Prison Smoking Ban, by Monte McCoin
  11. Major Wage Ratio Gap Between Executives, Employees at Private Prisons, by Steve Horn
  12. Former Michigan Prisoner Receives Over $817,000 for Wrongful Conviction
  13. Virginia Federal Court Holds Nation of Gods and Earth is a Religion
  14. Dying Prisoner’s Complaint Alleged Claim for Failure to Treat Hepatitis C
  15. Federal Lawsuit Filed Against Oklahoma Sheriffs – All of Them, by Derek Gilna
  16. Ohio: $75,000 Settlement Reached after 60-Year-Old Woman Body Slammed by Jail Guard, by Christopher Zoukis
  17. Newspaper Investigation Reveals Significant Problem with Life Sentences in Arizona, by Christopher Zoukis
  18. California: Governor Signs Bill to Block Expansion of For-profit Detention Centers, by Dale Chappell
  19. Washington Prisoner’s Negligence Suit Settles for $75,000
  20. Justice Department Failing to Assess Prison Population Reduction, Clemency and Reentry Programs, by Christopher Zoukis
  21. Alabama: State Agencies Have Absolute Immunity in a Court of Law or Equity
  22. Confusion Over Insanity Defense Leads One Jury to Issue Two Verdicts in Triple Murder, by Christopher Zoukis
  23. $437,500 Settlement for Brutal Beating at Missouri Jail
  24. The “Qualified Immunity” Doctrine Needs to be Reexamined, by Derek Gilna

Since even prison wardens know they can’t ban magazines for carrying news about the qualified immunity doctrine or problems with life sentences, they scramble to find excuses based on “penological concerns.”  A few years back, they convinced the Supreme Court that prisoners in punitive segregation can be forbidden to have even one newspaper, magazine or family photo because these objects can be made into spears, blow-guns or convenient catapults for feces without getting one’s hands dirty. (We’re not making this up).  Justice Thomas fondly reminisced about the good old days of 1780 when letters and family visits were forbidden and prisoners had nothing to read but the Bible.

Justices Stevens and Ginsburg dissented, saying (in sum and substance) that if the penological concern is about fastidious throwers of feces, there’s no difference between a (forbidden) newspaper and a (permitted) Bible. Tear out a few pages of Leviticus that nobody ever reads and plop!  As for Justice Thomas’s nostalgia for that old-time sadism, the dissent retorted, “regulations that deprive prisoners of their constitutional rights will always be rationally related to the goal of making prison more miserable.”

In Prison Legal News v. Florida Dept. of Corrections, the Florida prisoncrats claimed that the magazine wasn’t being banned for its articles, but because of its ads for forbidden services, such as 3-way calling, pen-pal solicitation and exchanging postage stamps for cash.

Chief Judge Ed Carnes, who rose to fame as the Nation’s leading shill for the death penalty, issued a long, sputtering decision. It begins with a mangled paraphrase of Oscar Wilde’s epigram, “The only way to get rid of temptation is to yield to it,” apparently to make the point that prisoners follow this philosophy. Oscar Wilde! Does this Son of Alabama know who Oscar was, or why he went to jail?  Or that he wrote:

We know not whether laws be right/Or whether laws be wrong.

All we know who lie in gaol/Is that the walls are strong.

Judge Carnes then directs his sledgehammer wit to some Carpetbagger law professors who filed an amicus brief on behalf of PLN:

While we categorically reject the contention and supporting arguments of the amici, we do not mean to be unfair. The professors’ brief does have good grammar, sound syntax, and correct citation form.

What a card. Meanwhile he precluded an amicus brief from seven former high officials of the federal and state prison systems, who argued – based on their decades of experience of managing high security facilities – that the ads in PLN pose only minimal security concerns and that FDOC’s  “blunderbuss response” of banning the magazine is exaggerated. They pointed out that no prison in the other 49 states or the federal system bans PLN. In their opinion, the magazine is a valuable resource, enabling prisoners to learn about “the issues most relevant to their daily lives.”

Moreover, no connection had ever been shown between the ads and prohibited conduct. Prisoners determined to break the rules by 3-way calling or selling stamps for cash can easily find out how, through “phone calls, visits, letters, or the inmate grapevine.”  The FDOC itself admitted that the banning of the magazine for the past five years had made no difference.

In showing that no other prison bans the magazine, PLN noted that New York simply attaches a flyer “stating that the magazine may have advertisements for services that prisoners are prohibited from using.”

This provoked a full thermonuclear response from the judge:

Really? If all New York has to do to prevent inmate misconduct and crime is gently remind them not to misbehave, one wonders why that state’s prisons have fences and walls. Why not simply post signs reminding inmates not to escape? If New York wants to engage in a fantasy about convicted criminals behaving like model citizens while serving out their sentences, it is free to do so, but the Constitution does not require Florida to join New York in la-la-land.

How silly of New York to put prisoners on notice of what’s prohibited! Why not just chain everybody to the wall to make sure they don’t yield to temptation?

Well, the judge isn’t the only one who can google-search pithy quotes. Here’s one from the psychologist Abraham Maslow:

If the only tool you have is a hammer, it’s tempting to treat everything as if it were a nail.

Put that in your banjo.

Come now

“Come now, give the system a chance.”


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OMG!! What’s so reliable about excited utterance?

The excited utterance exception to the rule against hearsay “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to consider ancient dogmas.” — Judge Posner, 7th Cir.

According to ancient dogmas, the stress of a startling event so completely paralyzes “the reflective capacity” as to make the person incapable of fibbing about it immediately afterwards. The judicial habit is accordingly to find that “impulsive and unreflecting responses possess a high degree of trustworthiness,” and are therefore admissible as proof of the truth of the matter uttered.

Thus, courts will consider an exclamation such as, “By Jove! I just saw Killer Joe shoot Big Dog Smith, with intent to cause death or serious physical injury, using a firearm possessed outside his home or place of business!” to be so highly trustworthy that the utterer need not even testify, let alone be cross-examined. His impulsive and unreflecting response may be proffered through anyone who heard it, and the jury may be assured that since it’s excited, it must be true.

Courts have not only been incurious about whether the excited utterance exception makes any sense, they’ve made it as elastic as a bungee cord depending on how sympathetic they are to the “victim.” Accusations of sexual misconduct, no matter how long ago the alleged event, are frequently admitted as excited utterances. When a child tells her mother that Uncle Harvey touched her poopoo last summer, and the mother calls the cops, who call the sexual assault detective, who calls a doctor, a court may apply the exception to permit all of them to testify to what the child told them. The question-begging rationale is that a sex offense ipso facto wipes out the reflective capacity for as long as it takes to get around to telling someone.

It should go without saying that the excited utterer has to have seen the startling event. But in a recent case of a street shooting, the defendant was convicted based on a faintly heard, unidentified voice in the background of a 911 call saying, “Yo, it was Twanek, man!” With typical prosecutorial logic, the People argued that the owner of the voice must have seen Twanek do the shooting, or else he wouldn’t have made the statement. The First Department duly swallowed this and found it admissible as an excited utterance.

The Court of Appeals reversed. The majority noted that, considering the number of people on the street at the time, there was no way of knowing whether this unknown voice had seen the shooter or was just repeating a crowd rumor.

Judge Jenny Rivera added that the excited utterance exception should be scrapped in the light of “advances in psychology and neuroscience.” Scrupulously substituting “they” as a singular pronoun for “he” when quoting from other decisions, so as not to exclude any possible gender, she concluded in sum and substance that when a person is under stress, they is perfectly capable of thinking up a lie, or at least getting the facts wrong. Unfortunately, since Twanek’s lawyers had neglected to make this argument, she was forestalled from reversing “on the basis that the exception should be rejected whole cloth.”

So next time the People claim that an out-of-court statement by a non-testifying witness is admissible as an excited utterance, be sure to tell the judge to abandon their habitual incuriosity and reluctance to reconsider ancient dogmas. And if they responds with the usual enthusiasm judges have for advances in psychology and neuroscience helpful to criminal defendants, tell them Judge Jenny has promised a reversal.

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

Exiled statues find asylum in Green-Wood Cemetery

When our dad died at age 89 over his strenuous objections, we buried his ashes in Brooklyn’s beautiful, historic Green-Wood Cemetery with the epitaph, “‘Tis not too late to seek a newer world,” from his beloved Tennyson’s “Ulysses.”  Thanks to Green-Wood’s 2-for-1 discount, we too look forward to being planted there when our time’s up.

So we’re proud that Green-Wood has offered sanctuary to two of New York City’s statues recently exiled under the cultural revolution.

The first displaced effigy was “The Triumph of Civic Virtue,” a monumental marble sculpture unveiled in front of City Hall in 1921. Symbolizing Good Government overcoming Vice and Corruption, it depicts a husky naked youth with a sword over his shoulder trampling two writhing creatures whose upper halves are female human and whose hair and lower halves appear to be octopus tentacles.

Mayor LaGuardia (1882-1947), annoyed at this daily reminder that he should go to the gym more often, had the statue banished to Queens. It stood for decades at the intersection of Queens Boulevard and Union Turnpike, eroded by pollution and pigeon droppings and angering such highly principled feminists as former Congressman Anthony Weiner, who called for it to be sold on Craigslist.

Such philistinism outraged Richard J. Moylan, the president of Green-Wood, who had the statue restored and moved to the cemetery’s peaceful, spacious grounds.

The accompanying plaque relates the monument’s history and symbolism, patiently explaining, “In allegorical personification, male and female figures represent concepts, not actual people.”

The second sculpture non grata to be granted refuge at Green-Wood is of Dr. J. Marion Sims (1813-1883), founder of New York City’s Women’s Hospital and developer of the first successful operation for vesicovaginal obstetric fistula.  His bronze statue was deported from Central Park last month in response to vigorous protests that he had “experimented” on “unwilling” enslaved women without anesthesia. Clearly, he was an Antebellum Dr. Mengele whose statue should be melted down and made into souvenir baby shoes.

Demonstration against Sims statue 8/20/2017

Removal of Sims statue 4/18/2018

We were astonished to learn that the historical record is more complicated.

In an article entitled “The medical ethics of Dr. J. Marion Sims: a fresh look at the historical record,” Dr. L.L. Wall of Washington University points out that for 19th-century women of all races and classes, obstetric fistula was an unendurable, incurable affliction.  There’s no reason to doubt the primary historical sources showing that Dr. Sims’s first fistula patients, Lucy, Anarcha and Betsey, although enslaved women incapable of legal consent, not only gave their personal consent to the operations, but insisted that he keep trying despite his initial failures.

Obstetric fistula, the article explains, isn’t a “relatively minor condition” as Sims’s critics assert.  It’s a childbirth complication whereby the pressure of the fetus tears a hole between the woman’s bladder and vagina, causing complete loss of urinary and often fecal control.  Another physician writing in 1857 described its effects:

The poor woman is now reduced to a condition of the most piteous description, compared with which, most of the other physical evils of life sink into utter insignificance. The urine passing into the vagina as soon as it is secreted, inflames and excoriates its mucous lining, covering it with calcareous depositions, and causing great suffering. It trickles constantly down her thighs, irritates the integument with its acrid qualities, keeps her clothing constantly soaked, and exhales without cessation its peculiar odour, insupportable to herself and those all around her. In cases where the sloughing has been extensive, and the loss of substance of the tissues great, and where neither palliative nor curable means have availed for the relief of the sufferer, she has been compelled to sit constantly on a chair or stool with a hole in the seat, through which the urine descends into a vessel beneath.

Far from using Lucy, Anarcha and Betsey as guinea pigs, Sims operated on them for explicitly therapeutic purposes, was eventually able to repair their condition and publicly acknowledged the debt of gratitude he owed them for their persistence and cooperation.

It’s a convenient untruth that Sims subsequently used anesthetic for his white middle-class patients at Women’s Hospital. Anesthesia from ether wasn’t invented until a year after he performed his first fistula operations, and even then, drew considerable opposition from the medical establishment. In a public lecture, Sims stated that he never used anesthesia in fistula operations “because they are not painful enough to justify the trouble and risk attending their administration.”

“In retrospect this was certainly an unfortunate error in clinical judgment – a mistaken ‘calculus of suffering,'” comments Dr. Wall, “but it was not anesthetic racism,” as Sims’s critics charge.

Lest it be imagined that Wall  is some Confederate-flag-waving good ol’ boy defending the Male Medical Establishment, we recommend a visit to the Worldwide Fistula Fund of which he is the Executive Director Emeritus. Although obstetric fistula is now rare in developed countries, in developing countries it remains a condition affecting over 1 million women, “compared with which, most of the other physical evils of life sink into utter insignificance.”

It does no honor to Lucy, Anarcha and Betsey to portray them as nothing but victims. Despite being enslaved, they distinguished themselves as courageous individuals who intelligently chose to participate in experimental surgery to cure what would otherwise have been a hopeless condition. Dr. Sims, like anyone else, should be judged within his historical context, not to mention based on accurate facts.

As for the outcast statue, it will join Dr. Sims and his family at their burial plot in Green-Wood.


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