Is a trial a search for the truth?

Every now and then, a judge will declare that a trial is “a search for the truth,” or, in one drunk driving case, a sober search for the truth.  The judge continued, “In the search for truth, no man has yet been harmed,” quoting a Stoic philosopher who was evidently never a criminal defendant, or if he was, had no priors.

What would a trial look like if everybody had to search for the truth?

Prosecutor: Ladies and Gentlemen, the truth is we really don’t know whether the defendant is guilty. Oh, sure, he’s been indicted, but we all know that a grand jury will indict a ham sandwich. It’s just that somebody has to pay for this terrible crime.

Defense counsel: Objection!

Judge: Overruled. Ladies and gentlemen, the truth is that when I overrule an objection by defense counsel, it’s because I don’t like her. She’s as charming as a porcupine on a bad hair day.  Plus, I have an opinion about her client’s guilt. How could I not, when I presided over the suppression hearing?

Prosecutor: (continuing) I had to spend days rehearsing my witnesses, a pathetic bunch of crybabies and losers, to make them get their stories straight. My police witnesses, of course, don’t remember a thing about the incident except that every gun is in plain sight, every defendant has glassy eyes and emanates the odor of alcoholic beverages, and every hassle with a civilian results in substantial pain and physical impairment to the cop, forcing him or her to take three years of paid leave.

Defense counsel: Ladies and Gentlemen, the truth is my client is a truculent hooligan who thinks he knows more about the law than I do because he has 49 misdemeanor convictions. The rest of my opening statement will be taken verbatim from “Mauet on Trial Technique.”

Judge: Ladies and Gentlemen, remember how we spent two weeks on jury selection because we had to kick off everyone who couldn’t accept the “beyond a reasonable doubt” standard? The truth is that nobody in their right mind ever asks for that kind of certainty. “Beyond a reasonable doubt,” what does that even mean? (collapses with laughter).

Defense counsel: (joining in) And you know why my client doesn’t testify? Because he did it! Yes, he took up two seats in the subway!

Prosecutor: Ha, ha, ha, truly a bullshit crime. Your tax dollars at work.  But you’d better convict, or my boss won’t get re-elected.

As Alan Dershowitz explains, there’s truth. . . and then there’s truth.

Posted in Criminal law, Law & Parody | 4 Comments

Ineffective Assistance of Counsel, Aussie Style

One of our worst moments as an appellate squawk was sitting in an Alabama courtroom watching a lawyer hand over his former client’s entire file to the prosecutor.  The idea being that if a defendant argues on appeal that his conviction was due to his trial lawyer’s screw-ups, all bets are off, attorney-client confidentiality-wise. It supposedly becomes A-ok for the lawyer to help the prosecution nail down his former client’s conviction.

Fortunately, since this Alabama lawyer had done almost nothing in this capital case, there was almost nothing in his file. Ha, ha!

Even here in client-centered New York, the turncoat school of representation has its adherents. There was the Bronx hack who furnished an affidavit to the People explaining that the reason she hadn’t consulted a DNA expert was that she knew her client was guilty. Very annoying, since post-conviction testing of the purportedly incriminating swab showed a complete absence of his DNA.

Then there was the young lady who blogged and tweeted, while the appeal was pending, that her client was a rapist. In a purely he-said-she-said case, where he’d plausibly testified that it was a consensual transaction with a hooker. After a defense that combined the cluelessness of “My Cousin Vinny” with the zeal of a fried egg, the lawyer ended by effectively telling the jury not to believe her client.  Perhaps she was distracted by her simultaneous participation in a film being made about the trial by a women’s-rights advocate to promote the Manhattan DA’s Sex Crimes Unit. The blog breathlessly lauds the film, which shows her client weeping as the judge derides him at sentencing. With a defense lawyer like that, who needs a prosecutor?

But for anti-client lawyering, nothing beats the Australian attorney known only as 3838, who spent years as a registered police informer against her clients.

Although her information enabled hundreds of her clients to be convicted, the police somehow managed to keep the Office of Public Prosecutions (OPP) in the dark about where it was coming from. Until a journalist broke the story about “Lawyer X, a prominent barrister who was recruited and registered as an informer.” An official investigation confirmed that she was indeed making a practice of ratting out her clients.

Her motive? “Charismatic, brash and witty, she loved a drink with cops and crims alike,” someone later explained. “She wanted to be wanted.”

This was a fair dinkum barbecue stopper, as they say in Oz. The OPP, shocked, shocked, concluded that the resulting prosecutions and convictions were “unsafe” and that the convicted persons had to be told. But Lawyer X and the cops demanded suppression of the investigation report, arguing that disclosure would create an “almost certain” risk of her being offed by disgruntled drug kingpins. Lawyer X flatly refused a witness protection program, since that would have put a damper on her drinking with cops and crims alike.

Too bad, said the Australia High Court. A lawyer grassing on her clients while pretending to defend them has committed “a fundamental and appalling” breach of her obligations, corrupting the entire process “in a manner which debased fundamental premises of the criminal justice system.” The convicted persons have to be informed, the Court concluded, and if Lawyer X refuses to be put in a witness protection program, “she will be bound by the consequences.” Or, as we say in Brooklyn, snitches get stitches.

The public comments in the Sydney Herald’s account of the scandal show that some people cared less about the debasing of fundamental premises of the criminal justice system than putting away drug kingpins. An understandable reaction, given that many of the crims were serious baddies who gunned down families in public, hardly the done thing even in Australia.

Our reaction is, how in the world did Lawyer X manage to fool all of her clients for all that time? Are kingpins really that dim?

Scene: Prison visiting room. Sounds of “Waltzing Matilda.”

Kingpin: G’day, Counselor. I’m sittin’ in this boob miserable as a bandicoot. Strewth, what are you doing?

Lawyer X: (fumbling under her blouse) Er, nothing, I think my bra strap broke.

Kingpin: Looks like I got the rough end of the pineapple being stuck with a Sheila lawyer.

Lawyer X: Testing, testing? Okay, it’s running. Um, I mean, my bra strap is fixed. The time is 2:30 p.m., and I’m in the counsel visiting room with Joey “Manslaughter” Gaboomba.

Kingpin: Why are you telling me this? I can see you’re here.

Lawyer X: Just a silly legal formality.

(loud acoustic whine from Lawyer X’s chest)

Kingpin: What’s that?

Lawyer X: Heh, heh. I shouldn’t have had that chili for lunch. Let’s talk about your case. Where were you when Bigfoot was shot?

Kingpin: Miles away. Camping by a billabong under the shade of a coolibah tree.

Lawyer X: With a bonzer alibi like that, it’s a fair go at trial. Who was Bigfoot?

Kingpin: A banana-bending lillywhacker from Queensland interfering with my bizzo.

Lawyer X: What bizzo?

Kingpin: We train kangaroos to deliver cocaine across state borders. Nobody ever thinks of searching a kangaroo.

Lawyer X: (fumbling under her blouse again) Bloody oath, it’s disconnected. Listen, could you write down a full description of your bizzo? Where you get the cocaine, how you launder the money and all that?  Oh, and the names and addresses of everyone involved?

Kingpin: No worries. Anything else I can do to assist in my defense?

Lawyer X: You could tell me how you rubbed out Horsie last year and what similar future plans you have.

Kingpin: (admiringly) Fuck me dead, it’s the ant’s pants to meet a lawyer who’s interested in me as a person for a change. Most lawyers don’t give a flying didgeridoo about their clients’ achievements and aspirations.

Lawyer X: Reckon I’m taking client-centered lawyering to a new level.

 

Posted in Criminal Defense Appeals, Criminal law | Tagged | 1 Comment

Being fair to Fairstein

  

Last week the Mystery Writers of America proclaimed Linda Fairstein the recipient of their 2019 Grand Master Award. Two days later, the MWA took it back after another mystery writer tweeted that Fairstein was “almost singlehandedly responsible for the wrongful incarceration of the Central Park Five.”

“Almost singlehandedly responsible”? Apart from being a ridiculous exaggeration, that has nothing to do with Fairstein’s status as a writer of crime novels. The Grand Master award, according to the MWA, “represents the pinnacle of achievement in mystery writing and was established to acknowledge important contributions to this genre, as well as for a body of work that is both significant and of consistent high quality.”

In other words, it’s a recognition, by the leading organization of crime fiction writers and readers, of excellence in that genre. Not the Nobel Literature Prize which, in theory at least, demands political saintliness from its recipients.

Fairstein has published 20 murder mysteries whose hero is a female prosecutor named Alex Cooper; and three mysteries for children, featuring a girl sleuth named Devlin Quick. According to Fairstein’s publisher, her books are international bestsellers and have been translated into a dozen languages. In withdrawing the award “after profound reflection,” the MWA doesn’t dispute this, let alone claim that Fairstein’s fiction is insignificant or of low quality.  Instead, it vaguely cites “the controversy in which she has been involved.”

That doesn’t look like profound reflection. Looks more like a school of guppies swimming determinedly in one direction and then, at the smallest disturbance, turning around and swimming with equal determination in the opposite direction.

Linda Fairstein was Chief of the Manhattan District Attorney’s Sex Crimes Bureau in 1989 when a woman jogger was found raped and left for dead in Central Park. Nine other people were attacked in the same area of the park that evening by a group of about 30 teenage boys. The police caught two of the teenagers in the park, who named three others. They became the Central Park Five.

Fairstein participated in and approved of interrogation tactics that psychologists and defense attorneys have argued for years are unconstitutionally coercive and create the risk of a false confession. The suspects were taken to the crime scene (thereby feeding them information), falsely told that their fingerprints were found on the jogger’s underwear, and assured that they could go home if they confessed.

But neither the trial nor the appellate courts found the resulting confessions involuntary.  Indeed, the police still use these tactics and courts unquestioningly uphold them. The only dissenter was the late Judge Vito Titone of the NY Court of Appeals who argued that 15-year old Yusuf Salaam’s confession should have been suppressed because Fairstein and Detective Taglioni deliberately deprived him of access to his family in order to obtain a confession.

After the Five were convicted and served years in prison, they were exonerated after the real perpetrator came forward with a confession that was not only voluntary but corroborated by DNA. Yet, Fairstein continues to insist that the full record “will confirm the original verdict.”

All that is very bad. And if Fairstein, who left the DA’s Office in 2002, were being appointed to the bench or running for District Attorney, we’d certainly be out there chanting, “Hey, hey, ho, ho, coercive interrogation tactics have got to go.”

But when the MWA adjudged Fairstein’s fiction to be worthy of their award, it was absurd to withdraw it based on disapproval of the author herself. As absurd as blacklisting actors and directors because they might support Communism. Or radio stations’ refusing to play the recordings of great conductors like James Levine and Charles Dutoit because they’ve been accused of sexual misconduct. Or the National Gallery’s canceling a retrospective of the painter Chuck Close because he was allegedly fresh to his models.

As an appellate squawk, we’re naturally annoyed that most crime fiction glorifies prosecutors and propounds humbug forensics (“Dr. Wizard examined the bullet in the corpse and concluded that it could only have come from Big Dog’s gun”). But the remedy to annoying speech is more speech. There’s Rumpole of the Bailey. And of course, Appellate Squawk’s Murder Mystery.

Posted in Uncategorized | Tagged , , | 6 Comments

The solution to courtroom delays: hockey pucks

In a move to defend against school shootings, a Michigan college is distributing hockey pucks to its faculty. Hockey pucks, or biscuits, as they’re known to the cognoscenti, are “easy to carry, heavy and tend to cause a distraction when thrown,” explained Oakland University’s Chief of Police. We didn’t make this up.

Meanwhile, hundreds of Brooklynites have to stand in line for hours waiting to get into the courthouse because the guards insist that it’s not safe to let the public in unless 350 more guards are hired.

“We don’t want to see anybody, a judge, an attorney, or any other staff, or worse, a juror or any other member of the public leaving in an ambulance or, god forbid, a body bag!” a court official solemnly intoned.

Horsefeathers.

We’re not going to diss courthouse guards wholesale, since we know at least one who’s friendly and helpful and even accurately explained Batson v. Kentucky to an inquiring member of the public. But we seldom enter a courtroom without thinking of Melville’s creepy short story Benito Cereno where, (spoiler alert!) it turns out that the apparently suave captain of the ship is actually the prisoner of his murderous servant. Similarly, the eminent-looking trial judge is surrounded by black-leather-gloved, bulletproof-vested, armed heavies who tell him-or-her what to do. Can you have your client un-handcuffed and given a chair for his SORA hearing? Not if the guards don’t feel like it. Can you have your client, who’s sitting in the pens two flights down, brought up to the courtroom in less that 3 hours? Ditto.

So now, the guards are not only slowing down security clearance in the courthouse lobby while the public freezes outside, they’ve instructed the judges to close their courtrooms “without proper staffing.” “Proper staffing,” needless to say, as determined by the guards. And all but a handful of judges have meekly complied. Quis custodiet ipsos custodes?

Let’s take a tip from the Michiganders.

Scene: The Judicial Training Institute

Chief Judge:  Now listen up, everybody. Due to the shortage of court officers, you’re all in danger of being taken out in a body bag. Therefore, each of you has been issued a hockey puck because they’re easy to carry, heavy, and tend to cause a distraction when thrown. Ow!

Traffic Court Judge: Sorry, Chief, just testing.

Chief Judge: I sentence you to 200 hours of target practice.

Appellate Judge: Chief, surely you’re aware that we appellate judges have such extraordinarily crushing, overwhelming caseloads, one puck isn’t nearly enough.

Chief Judge:  Of course. At oral argument, the court officers will periodically come out of that little door in the back to supply you with stacks of hockey pucks.

Appellate Judge: You mean, along with the stacks of briefs?

Chief Judge: No, instead of the briefs. Hockey pucks are much more efficient.

The Appellate Court’s dream.

 

 

 

 

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

Are your politics acceptable to your cabdriver?

Our fictitious hero Rumpole of the Bailey liked to say that a public defender is “a taxi plying for hire,” bluntly explaining to his clients that he was “duty bound to take on any client, however repellent.”

But his taxi metaphor has gone the way of the passenger pigeon, now that cabdrivers are being urged to screen potential riders for political acceptability.

“Cabdrivers Refuse To Pick Up Racists After Philadelphia Rally With Proud Boys!” asserts HuffPost with satisfaction. It shows cellphone videos of three cabs driving away empty from a rally of about 30 conservatives called “We, the People.” Which, according to the Huff, included “at least two” Proud Boys.

The videos also show that the cabs are surrounded by cops and some of the 300 counter-demonstrators who turned up at the rally brandishing signs saying things like, “Nazi scum not welcome.”  But when the Nazi scum obligingly tried to leave, the righteous urged the cabdrivers to refuse to take them. It’s unclear whether the cabbies complied out of political conviction or sensibly reasoned that it was better to lose a fare than risk having a bunch of indignants banging on their windshields.

Still, the idea might catch on.

Scene: Rainy Saturday night after a Knicks game.

Drenched couple: Taxi! Taxi! Oh, thank heavens, a cab!

Cabdriver: Not so fast. What do you think about climate change?

Drenched couple: Huh?

Cabdriver: I’m talking about the statistical distribution of weather patterns over an extended period of time.

Drenched couple: Yes, yes, we support zero carbon emissions —

Cabdriver: Ha! And putting me out of a job! (Drives off).

Drenched woman: I guess we’d better stay off politics if we ever want to get home.

Drenched man: Taxi! Taxi! We’re completely neutral, non-alligned persons.

Cabdriver: Oh, yeah? What are your views on abortion?

Drenched man: It’s the woman’s right to choose.

Drenched woman: It’s the murder of a human being.

Cabdriver: Nice try, but you can’t fool me. What’s your solution to the Middle East situation? Falling interest rates? Brexit? Hey, where’re you going, I’m not finished!

Drenched couple: Never mind, we’ll walk the 48 blocks to the subway. At least we don’t have to sign a loyalty oath to buy a Metro Card.

Cabdriver: Heh, heh.  Wait til they see the new Metro Card machines.

Posted in Civil Liberties, Satire and parody | 1 Comment

How to keep your employees safe and happy: give them guns for Christmas

A Wisconsin glassware company has discovered the perfect Christmas gift for its employees: a gift certificate for a gun.

“For us, now, we have an entire armed staff,” co-owner Ben Wolfgram told the Appleton Post-Crescent. “I think that’s pretty good.”

The company’s name is BenShot and this is the kind of glassware they sell:

   

“We are a small, close-knit team at BenShot,” said Wolfgram. “I want to make sure all of employees are safe and happy – a handgun was the perfect gift.”

It turned out that some employees “already had enough handguns.” They were allowed to use their gift cards for rifles instead.

Gee, we wish our boss would do that. An entire armed staff might solve a lot of problems.

You say your BenShot glass leaks?

Posted in Law & Parody | 3 Comments

Everything you’ve ever wanted to say to a judge but had sense enough not to.

Don’t pretend you’ve never been tempted to respond like this when you get a bad decision from a court:

I find it hard to believe that after the Court had the motion for 5 months to decide, that it could make up facts to support a finding. . . . But then…if you do not read plaintiff’s papers maybe it is possible.

Close your eyes and wish for facts to grant a defendant’s summary judgment.

* **

WHERE DID THE COURT GET THIS? THIS IS STATED NO WHERE IN [Plaintiff’s expert’s] REPORT. LA LA LAND, I COULD NOT MAKE THIS UP IF I TRIED.

***

THIS IS LA LA LAND ON STEROIDS…I CAN NOT COMPREHEND THE #%*$^% THAT IS THIS DECISION… This is so bizzaro land that it is hard to type. What is even more pathetic is the case I cited (citation omitted) has been ignored. 

That’s what it took for attorney Gino Giorgini to get the judge to read his papers, stop making up facts and reverse the summary judgment order.

In other words, it worked.

Two years later, Mr. Giorgini again expressed frustration with the court for not reading his papers:

This is outrageous!!!!!!! How dare the court disrespect my elderly client for the benefit of some political contributors. I guess my reply/sur-reply was not read. I pointed this out in my first paragraphs. Let me see…perjury…no problem…fraud…no problem….what a joke. I guess if you hire the right politically active lawyers like [opposing counsel] anything is excusable with this court. . . . I spent countless hours proving plaintiff’s fraud; putting forth case law so on point that there is no issue of defendants prevailing and the Court doesn’t read my papers. Do you know how angering that is? 

We know just how he feels!!!!!!!!!!!!

Unfortunately, the Appellate Division decided that Mr. Giorgini’s flaming prose constituted “undignified or discourteous conduct which is degrading to a tribunal,” and suspended him from practicing law for three months.

They oughta lighten the #%*$#^% up.

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