In Defense of Sheldon Silver

Plunkitt      We confess that everything we know about Albany politics comes from Plunkitt of Tammany Hall, the discourses of a hilariously candid machine politico, delivered from a shoeshine throne in the early 1900’s.  We further confess that everything we know about financial crime comes from buy ‘n’ bust operations,  where undercover cops make xerox copies of 10-dollar bills to prove they gave the originals to our clients in exchange for bags of beam me up Scottie.

Having established our lack of qualifications to render an opinion, we think it’s a shame to drag our venerable (now former)  Speaker of the Assembly through the mud over a piffling 4 mil that isn’t even public money.  They say he got it from private firms for work he didn’t do. Well, if it’s a federal crime not to do the work you’re paid for, we could nominate quite a few people for the Bastille.

Now the hounds are going after everyone who ever sat next to Shelly in a synagogue and even Chief Judge Lippman. That’s just nuts.  We remember when Lippman was appointed to the First Department, a tribunal that painted themselves blue and communicated in barks and grunts.  Thanks to his civilizing influence, for one brief shining moment oral argument lost its resemblance to sitting in the stocks being pelted with horse dung.  He succeeded Judith Kaye as Chief Judge of the Court of Appeals because she thought he was adorable. We know, we saw them together.  After Lippman took over, the Court started hearing criminal cases once in awhile instead of never.

Meanwhile Silver kept ex-Mayor Bloomberg from turning Manhattan into one big parking lot for a football stadium.  We suspect he also kept at bay a lot of barbaric legislation that would have made the criminal injustice system even worse than it is.  They’re going to destroy him over 4 million clams? Get a grip, it’s only money.



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


74 virgins

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Two days ago, Jihadist gunmen stormed the French satirical magazine Charlie Hebdo   targeting the cartoonists whose drawings they found objectionable, butchering 12 people in all. Cartoonists from all over the world  responded with cartoons, the Eiffel Tower was dimmed in mourning and crowds gathered holding up placards saying, “Je Suis Charlie,” roughly translated as, “the hell with you.”

FRANCE-ATTACKS-CHARLIE-HEBDO     247CA80E00000578-2900835-image-a-15_1420655521330  Not afraid  247CD03200000578-2900835-image-a-24_1420665601518


Charlie Hebdo  (Charlie for Charlie Brown and Hebdo for “weekly”) published outrageous cartoons such as the following:

150107_BB_Hebdo962_350.jpg.CROP.original-original A comment on Pope Benedict’s 2010 approval of condoms. He holds a condom aloft saying, “This is my body,” a reference to the Mass.

150107_BB_Hebdo1011_350.jpg.CROP.original-original “Charia” [Sharia] Hebdo, a special issue “guest edited” by the Prophet. He says, “100 lashes if you don’t die laughing.” The magazine’s office was firebombed the next day.

Here are some cartoonists’ reactions to the latest massacre:

He drew firstDave Pope @davpope

Where's the trigger  Matt Davies Newsday; and Matt of the Telegraph:

Be careful they might have pens


Posted in Civil Liberties, Satirical cartoons | Tagged | 2 Comments

Clap your hands if you believe in judges

Pink fairy

Decision by Judge Scott Miller of the City Court of Ithaca We didn’t make this up:

“The People allege that on June 8, 2014 in the City of Ithaca at 4:08 a.m., the Defendant [37-year old] Caleb Thomas did spray paint a single pink fairy on the public sidewalk in front of the Beverley J. Martin Elementary School. . . .

“The sidewalk was not permanently defaced but, in fact, a sprinkle of joyous whimsy was added. The Court can only imagine the laughs ringing musically through the late Spring morning air as children were welcomed by this sprightly visage as they entered their school on one of those painstakingly long June days before the start of summer vacation. When the first baby laughed for the first time, the laugh broke into a thousand pieces and they all went skipping about, and that was the beginning of fairies. And now when every new baby is born, its first laugh becomes a fairy. So there ought to be a fairy for every boy or girl. J.M. Barrie, Peter Pan. . . . 

Defendant has presented evidence that he extinguished the pink fairy rather easily with just a splash of water, reminiscent of how easily Dorothy dispatched of the Wicked Witch of the West in L. Frank Baum’s The Wonderful Wizard of Oz. How sad the children must have been when they looked for their little pink fairy, but only to discover her departed. . . .

“The Defendant admitted to creating the fairy and was also found in possession of paint that matched the fairy’s complexion. Defendant however, does correctly point out to the Court that there is no evidence that he lacked the City’s permission to add a speckling of mirth to the gray concrete astride the school. There may be fairies at the bottom of the garden. There is no evidence for it, but you can’t prove that there aren’t any, so shouldn’t we be agnostic with respect to fairies? Richard Dawkins, lecture from The Nullfidian. . . . 

“Defendant Thomas, if convicted, faces. . . a maximum of one year incarceration. . . . Should Defendant Thomas suffer a life-long criminal record for this offense, surely the winged seraphs would cry out from Heaven above. Every time a child says, ‘I don’t believe in fairies,’ there is a fairy somewhere that falls down dead.’ J.M. Barrie, Peter Pan. . . . 

“This Court finds that Defendant Thomas’ intent was to provide fleeting joy to school children, not to damage or deface public property. All the good people of Ithaca will rejoice that the creator of the pink fairy was liberated from further prosecution. Fairies, come take me out of this dull world,/For I would ride with you upon the wind,/Run on the top of the dishevelled tide,/And dance upon the mountains lie a flame. W.B. Yeats, The Land of Heart’s Desire, 1894. . . . . Don’t you know that everybody’s got a Fairyland of their own? P.L. Travers, Mary Poppins. . . . 

“And the fairy – her pink flame is extinguished. She delighted Ithaca’s children for just a moment and now like Lenore [n. Edgar Allen Poe, The Raven] she is nevermore. Her ephemeral existence is now only a distant memory like that of childhood days long gone. There is no bringing back this pink fairy of youth. . . .

“Accordingly, the Defendant’s motion to dismiss the accusatory instrument in furtherance of justice is Granted.”




Posted in Civil Liberties, Criminal Defense Appeals, Humor, Law & Parody, Satirical cartoons | Tagged , , | 4 Comments

The prosecutor instructs the Grand Jury

Prosecutor instructs grand juryWhat did the Staten Island prosecutor say to the grand jurors to make them decide that Police Officer Pantaleo had committed no crime at all when there’s a video showing him choking an unarmed man to death? Nobody knows, because grand jury proceedings in New York are produced, directed and scripted by the DA’s Office under cover of what courts approvingly call “jealously guarded” secrecy.

Take 23 people off the street, lock them up for weeks with an authority figure who dictates what facts and law they can consider, assures them of anonymity and lets them know the desired result – and surprise! at least 12 of them will do what they’re told.

The Staten Island DA – an elected official – seems a teeny bit concerned that even conservatives think the grand jury verdict in Eric Garner’s death is, in the words of George W. Bush, “hard to understand.” So the DA asked the court’s permission to release “certain limited information” about the grand jury proceedings which, as the court observed without apparent irony, “has already been widely reported in the media.”  See grand jury decision.

Considering how prosecutors distort the law even in appellate briefs, we can just imagine how they explain it to a grand jury, knowing that the defense will never know what was said.  Here, it was probably something like, “A cop has the right to use deadly physical force if he’s really sorry afterwards.”  It’s easy to make fun of grand jurors, but it’s the prosecutors who all but dictate the verdict. Criminal proceedings and secrecy don’t mix.

Posted in Civil Liberties, Law & Parody, Satirical cartoons | Tagged , , | 1 Comment

Vote for Squawk!

We’ve always been totally indifferent to fame, glory and recognition except when it’s offered to us.  Now that we’ve been nominated for the ABA’s top 100 blogs (curiously spelled  as blawgs) we’ve shamelessly hit the campaign trail. Vote here for Appellate Squawk! (in the For Fun category).  What’s to lose? Homeland Security is already reading your email anyway.>.


This is a good time to blog other plugs, er, plug other blogs, beginning with Gamso-forthedefense who so generously and convincingly nominated us.  Jeff Gamso is an outstanding public defender in the no-kidding death penalty state of Ohio who never stops flipping out over the barbarity of our criminal injustice system.

Then there’s the prodigious and curmudgeonly daily blogger Scott Greenfield of  Simple Justice whose nods to us have skyrocketed our stats into the high two figures.  His blog features a button saying, “Click here if this post hurt your feelings.” We’ve never dared.

Since the ABA has classified us under the “For Fun” section (harrumph!), here are a couple of fellow jesters: the hilarious What the Public Defender, self-described as a 20-something PD trying to navigate the criminal justice system without killing anyone. And Norm de guerre another wry PD who’s chasing truth and catching hell.

And who would expect a product liability blog to be entertaining? Every Friday the tort blog Abnormal Use features a link to legal-themed comic book covers such as this one showing superhero Groot  as a defense attorney.   Groot, if you recall, is basically a tree from another galaxy whose speech is limited to “I am Groot,” but here he is winning the case! An inspiration to us all.


Finally, there’s Blackstone Weekly by our friend who sat next to us in Corporations class at the Acme School of Law and Refrigerator Repair, but for whom we would have gotten an even worse grade than we got. Jessie, now Professor Allen, describes it as “Free associations on Blackstone’s Commentaries, the 18th Century tome that inspired and irked America’s founders, served as Lincoln’s legal primer, and is today the most famous law book that no one actually reads.”

So. . . next time your eyes are glazing over from your own writing, read blogs! It beats solitaire.

Posted in Criminal Defense Appeals, Law & Parody | Tagged | 2 Comments

Let’s solve the Etan Patz case with a wrongful conviction

Martian: Greetings, Earthling. I am Professor tg/46# of the Inter-Galactic School of Law. Your Constitution and case law are stored in my lower P-5b.  I hear a Manhattan judge has just found the confession of a mentally ill man voluntary, even though he was interrogated for six hours without Miranda warnings.

Appellate Squawk:  Oh yes, the Etan Patz case. A 6-year old who disappeared in 1979 and was never seen again. A couple of years ago it was in all the headlines that they were excavating a basement for clues. Nothing was found, but the publicity brought a bunch of people out of the woodwork saying that their mentally disabled relative Pedro Hernandez told them 30 years ago that he’d chopped up the boy’s body.

Martian: I assume the police took this reliable information to a judge and obtained a warrant for the man’s arrest?

A-S: Not exactly. An arrest warrant would mean that Mr. H’s right to counsel would attach.

Martian: Indeed, it is a sign of a high civilization that your Constitution guarantees every accused person the right to counsel.

A-S: Um, well, the police feel they have the right to question suspects before some pesky lawyer  interferes. So they’ve devised a way of getting around it.

Martian: You don’t say! It must be an extremely devious and subtle ruse if it can fool the courts.

A-S: Yes, they go to the suspect’s house and ask if he wouldn’t mind coming with them to the precinct to answer a few questions.

Martian: But of course they make sure he understands he’s not obliged to come. Especially, I should imagine, if they know he’s mentally disabled.

A-S:  No, they just testify at the suppression hearing that “he voluntarily agreed to come with us.” And that’s enough for the court.

Martian: Ha, ha, ha, you’re pulling my legs.  Your own Court of Appeals says if the prosecution relies on consent they have a heavy burden to show it was voluntary and not just submission to authority. By what sensitive and nuanced analysis did the court arrive at the conclusion that Mr. H. voluntarily agreed to go to the police station?

A-S:  A widely-used analysis called ignoring the question. According to the decision, nine cops and detectives showed up at Mr. H’s home at 7:30 in the morning and said they wanted to take him from New Jersey to New York to ask him about “an old missing person case.” They patted him down and took his keys, wallet, cell phone and pill case.  They told his wife to pack up his meds – including anti-psychotic meds – because he’d be gone awhile. His wife told them he was “unstable and needed someone to stay with him.”

(Martian shuts down).

A-S: (in a panic) What happened? Where’s your reboot button?

Martian: (coming to). Sorry, my system just couldn’t handle the contradictions. Nine law enforcement authorities at the door? Isn’t that a major police action? Isn’t taking an Earthling’s keys, wallet and cell phone from his pocket a clear assertion of control over his person? Quite apart from mental disability, why would anyone think they could refuse to go with the police without simply being hauled away in a less polite fashion?

A-S: Unfortunately our system has no problem with contradictions. The court found it highly relevant that some of fuzz were wearing suits.

Martian: Aha! Perhaps I overlooked a crucial factor.  A suit symbolizes. . . what, exactly?

A-S:  That it’s a very important cop.

Martian:  All the more pressure to submit, I’d have thought.

A-S: The court also noted that there was an exit sign in the police station.

Martian: Now we’re cooking with gas! An exit sign indicates freedom to come and go?

A-S: No, it just means there’s a door.

Martian: (sighing) Well, if the court didn’t consider whether Mr. H.’s consent was voluntary, what did it consider?

A-S: It shifted the burden to Mr. H. to show he was in custody. Defined in New York as whether “a reasonable person innocent of any crime who would feel free to leave.”

Martian: I hope you don’t mind if I point out that’s not the Supreme Court test. It’s whether a reasonable person in the defendant’s circumstances would feel free to end the questioning and leave.  Nothing about having to be innocent.

A-S:  Makes no difference. The test as applied is what the judge would do if he or she were in that position. And since the judicial temperament tends to be somewhat self-assertive, they can’t imagine anyone not feeling free to leave unless actually chained to the wall, and even then –

Martian: But it says here that Mr. H. actually said he wanted to go home! Three times! And he asked to speak to his wife but the police said only if he first told them what he wanted to say. That isn’t custody?

A-S: No, because they gave him lunch.

Martian: What’s that got to do with custody? They give lunch to prisoners, they’re still in custody.

A-S:  And “at no time was the questioning accusatory.”

Martian: Not accusatory? They showed him  a “missing child” poster of Etan Patz and asked if he had anything to tell them. They said  it wasn’t his fault and he’d feel better if he told “the truth.” Surely when the police say “the truth” is that you did away with a child, you wouldn’t think you could just get up and walk out?

A-S: Well, the cops kept telling him he was there voluntarily, so he must have been. And since his confession after six hours of interrogation without Miranda warnings was perfectly voluntary, he’ll probably be convicted even though there’s no other evidence.

(Martian shuts down again).

A-S: Take it easy! Maybe in 20 years the real killer will come forward, just like in the Central Park jogger case. Then the Manhattan DA’s Office can show their deep concern for wrongful convictions.

(Martian refuses to reboot).  

The People of the State of New York Plaintiff v Pedro Hernandez Defendant 4863 12 _ New York Law Journal

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