Prosecutor Powerpoint and Wigmore’s horse

Since prosecutors’ summations are basically commercials to sell the jury on a guilty verdict, it was only a matter of time before they started using advertising graphics.

In People v. Santiago (2014), New York’s top court saw nothing wrong with the People’s showing a series of photoshopped slides supposedly showing a baby’s soul fading into oblivion. To prove that she was smothered on purpose and not by accident.

Naturally, it proved no such thing, but there wasn’t a dry eye in the courtroom and you can guess what the verdict was.

Recently the Court has again given the green light to creative prosecution, this time approving the People’s touching up the defendant’s arrest photo with arrows pointing to his face. Each arrow demonstrating their “theory of the case,” i.e., that the defendant was “the face of death.” People v. Anderson (2017).  It must have looked something like this:

It was also fine for the People to add comments to the autopsy diagram, so long as they were “fair inferences.”

The Court reasoned that if it’s okay to say it, it’s okay to show it. The dissent, who apparently reads something besides law reports, argued that it’s been known for quite awhile that people tend to uncritically believe what they see. Whereas we recognize words as just something coming from speakers, we respond to images as “reality.” Therefore, visual “information” can be persuasive for the wrong reasons.

This isn’t a new discovery. Back in 1904, Wigmore on Evidence observed that visual aids in the courtroom can positively substitute for proof. Does Doe accuse Roe of stealing his horse? Have a horse brought into the courtroom and triumphantly say, “If you doubt me, there is the very horse!” The jury will consider this as definitive corroboration.

 Believing what we see is explained by evolutionary biology.  When confronted by a saber-toothed tiger, the humans who said, “Aw, that’s probably just photoshopped,” tended to have fewer descendents than the ones who ran. But critical thinking wins out in the end. . . doesn’t it?

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

In memory of Dennis Murphy, public defender

Dennis horsing around at the office 2015

Dennis Murphy passed away at home in his sleep on March 22, 2017, after several years of being progressively weakened by neurodegenerative illness.  He was Director of Training at the Legal Aid Society, where he overflowed with more ideas for projects in a single conversation than most people come up with in a whole career.  He read widely, knew everybody, and delighted in bringing people together: attorneys, law professors, experts, academics in all fields and anyone whose knowledge he thought would make us better lawyers.  Being a lawyer wasn’t just about doing the next case. It was also about ideas: “Never let the urgent drive out the important,” he said.  So, training could be anything from how to litigate a suppression hearing to investigating a mock crime scene to looking at paintings at the Metropolitan Museum, the lesson being that there’s always more than meets the eye.

When walking became too difficult, he adopted a bright red golf-cart-like vehicle, adeptly tooling around the office. We never heard him grumble or complain, even when being kept waiting in the lobby for hours to be picked up by Access-a-Ride. “At least they give same-day service,” he’d say.

Dennis was married to Dr. Maureen O’Connor, a lawyer and psychologist who headed the Psychology Department at John Jay College and then the Doctoral Program in Psychology at CUNY.  When she was appointed President of Palo Alto University last August, this seemed like a perfect move for them and their daughter Katy, just out of college. Asked about his plans, Dennis happily answered,  “I’m going to sit in a jacuzzi and catch up on my reading.”

Here’s his farewell to Legal Aid:

This is goodbye from Dennis.  Maureen, Katy, and I leave for California on Tuesday, June 21st.  If you count my short tenure as an alcohol tax inspector for ATF in San Francisco in the early 1970’s, this marks my 44th year in the larger world of law and justice.  12 jobs in 44 years. Lots of challenges, friends, mentors, mentees, and lots of clients. Being a public defender – representing poor people in misdemeanors, felonies, and capital cases and providing training to public defenders  – has been the highlight of my career.  I’ve made monumental mistakes and left some aspirational projects on the table, unfinished.  And there have been successes, but I’ll let others do the math.

One thing is certain:  any accomplishments owe much to others with whom I’ve worked side-by-side.  The list is embarrassingly long [followed by a very long list]. Thanks so much to everyone.

But it’s all about our clients, isn’t it?  My “five year plan” – renewed annually – has been for us to change the “talk” at Rikers Island from “I got a public pretender” to a proud thump on the chest “I’ve got Legal Aid!”  We’re not there yet, nor is any other PD.  But we must keep trying!  Love your clients, no matter how they treat you.  Go to Rikers and visit them; it’s amazing how that can transform an attorney-client relationship.  Even so, you’ll never get the number of “thank you’s” that you deserve.  Treasure the ones you receive.

Enough preaching. I love you all.  If you are in the Bay area, let me know.  And in case you haven’t seen me wrestling Victor the Bear, please review the attached critically.

Dennis (far left)

Posted in Law & Parody | Tagged | 5 Comments

When is a trial not a trial? When there’s no jury.

“Can you follow the law as instructed by His Most Radiant Honor the Judge?”

We recently briefed a case where the judge took the bench after the lunch break and announced, “The Court has arrived at a verdict.  The verdict is –,” until the parties frantically stopped her. The trial hadn’t finished yet!  She apologized and sat patiently through the rest of the trial before delivering the guilty verdict she’d already decided on.

How do we know she’d already decided? Because for starters, it was called the “Domestic Violence Court,” a name that might as well be “The Man Is Guilty” Court.  Or the “Once-You’ve-Seen-One-You’ve-Seen-Them-All” Court. How can a busy, overworked judge possibly be expected to remember which case is which?

That’s why the People like to reduce the charges to a lower grade so the defendant doesn’t get a jury trial — the myth being that a trial for a “petty” crime isn’t worth the trouble of hauling in a bunch of cranky citizens who insist that jury duty is against their religion.  The reality being that a conviction of a petty crime is enough to send you to jail for “only” three months, make you lose your job, put you on the Sex Offender Registry, and/or various other obstructions to life, liberty and the pursuit of happiness.

Everything from the Supreme Court’s recent paen to jury trials to “Twelve Angry Men”* shows why multiple heads are better than one.  Remember in the movie where the jurors are all set to convict the boy because he had a knife just like the murder weapon? And Henry Fonda pulls out the same kind of pocketknife to show how common it is? Persuading the other jurors to put aside their unreasoning prejudices and acquit before he pulls out a gun?

Not only does the lonely judge have no one to talk to, “reasonable doubt” is a contradiction in terms when she can expect to see her mug on the front page of the tabloids if she acquits.  Fuggetabout if the defendant ever, ever commits a crime in the future.

If there must be solo judge trials, then judges should have to explain their verdicts in writing, just like they do for hearings.  No reason to protect the sanctity of the beak’s in cerebro deliberations.  The next courtroom drama will be “Twelve Angry Neurons.”

*Check out the Bollywood version.

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

How to describe judicial decisionmaking without being held in contempt

judges-knee

Judicial decisionmaking

The biggest challenge of appellate writing is figuring out how to convey without actually saying so that the trial judge was an uninformed barnacle.  Especially when the standard of review is that the judge is always right.  The appellate squawker is traditionally confined to saying, “the court erroneously held [insert outrageous ruling].” Or, if really out of control, “the court unreasonably held [insert even more outrageous ruling]. 

But we’ve recently discovered a treasure trove of vituperative euphemisms in the literature of heuristics, or “mental shortcuts,” or “kneejerk reactions that pass for thought.” With its obvious application to judicial decisionmaking, it provides a whole new vocabulary for hotfooting the affirmance machine.

For example, you can say: “The court, displaying a significant penchant for inter-personal dominance, a low need for cognition, and devoid of pre-decisional accountability, employed heuristics inappropriate to the process.”

Instead of: “The judge, a tinpot tyrant who hasn’t read a case since law school, ruled from the seat of her pants.” 

You can say: “The court, seeking cognitive closure, relied on effort-reducing, time-saving heuristics, resulting in a suboptimal judgment.”

When you mean: “The judge decided the sentence before hearing a word of evidence.”

Instead of:  “The trial judge was a prosecutor in a robe who took every opportunity to put his thumb on the scale.”

Say:  “The court applied malleable and ambiguous standards.” 

And you can safely say: “The court was constrained by cognitive overload.”

When what you mean is: “The judge slept through the whole trial.”

h/t to  “Heuristics, Cognitive Biases, and accountability: Decision-Making in Dependency Court” by Matthew J. Fraidin.

Posted in Criminal Defense Appeals, Humor, Judges, Law & Parody, Satirical cartoons | Tagged | 3 Comments

The Court of Appeals rules on SORA

"Should its toenails be painted red or green?"

“The issue is whether its toenails shall be painted red or green.”

 

Posted in Civil Liberties, Law & Parody, Satirical cartoons, SORA | 3 Comments

From the archives: Judge Rakoff on graffiti and Oedipus Rex

From “The Villager,” August 24, 2005

Chelsea graffiti party
Federal Judge Jed S. Rakoff on Monday ordered the Bloomberg administration to reinstate a permit for a Wed. Aug. 24 Chelsea block party featuring the painting of graffiti on mock subway cars.

In a written decision, Rakoff rejected the city’s argument that the 10 a.m. to 6 p.m. event on W. 22nd St. between 10th and 11th Avenues by the designer Mark Ecko would incite people to deface property.

The city last week had granted the street-closing permit for the event involving a group of people spraying graffiti on metal panels simulating subway cars. However, the city rescinded the permit at the end of the week, saying Ecko had failed to state the particulars of the event.

Rakoff, however, dismissed the argument that the public performance would incite illegal action, saying, “By the same token, a street performance of ‘Hamlet’ would be tantamount to encouraging people to revenge murder. As for a street performance of ‘Oedipus Rex,’ don’t even think about it.”

Posted in Humor, Judges | 1 Comment

Lunar New Year message: take a tip from the fish

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This week we’ve been poking around Manhattan’s Chinatown celebrating the Year of the Rooster.

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“Sometimes your destiny needs to be spelled out.”

20170203_121446 Fish were everywhere. 20170203_205149

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Back at the office we asked our wise informant Kam what fish represented. “They’re a symbol of perseverance in overcoming barriers,” she said. “When they come up against something, they swim around it. They’re free because they’re flexible.”

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We thought this was good advice. Especially for those days when you feel you might as well put your briefs in a bottle and throw them in the East River.

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