One of our favorite Appellate Division decisions is when the First Department went ballistic against a fellow Squawk for citing the scientific research that incest offenders have a low rate of recidivism. “REPUGNANT TO COMMON DECENCY!” hollered the the court.
(Okay, maybe our friend was putting it too colloquially by saying his client was unlikely to reoffend because he’d “run out of family victims.” But hey, science is science. Isn’t the CDC now telling us the Omicron virus is going away because it’s run out of people to infect?)
Anyway, not to brag, but we think we’ve gone one better. After completely getting the issue wrong at oral argument, the First Department came up with a decision holding that it’s the arrestee who has to prove the unlawfulness of his arrest by testifying at the suppression hearing. As every high school kid knows (we hope), when the People want to use evidence from your arrest, they’re the ones who have to prove the arrest was lawful. It’s not up to you to prove it was unlawful.
So we moved for reargument, politely suggesting that the court had misapprehended the facts and law (legal jargon for “didn’t know what they were talking about”) based on a bum steer from their clerk’s bench memo. A fact of which we have circumstantial evidence to a moral certainty.
Far from appreciating our tact, they handed down this historic doozy:
We note that defense counsel’s affirmation in support of the motion to reargue contains regrettable and inaccurate statements regarding the Court’s deliberative processes. We caution counsel to refrain from making unsupported accusations directed at the Court, and we urge counsel to focus on constructive means of representing the client’s interests.
Looks like we got them in the cojones.
As for our client’s interests, we’re happy to report that he’s safely home with his family and has learned the wisdom of not shoplifting from chain drugstores. It’s the Constitution’s interests we’re worried about.
We thought this was a perfect case for the Court of Appeals to put their money where their mouth is about their trumpeted “Excellence in the Courts Initiative.” True, the 7-member Court includes two former District Attorneys and the federal prosecutor who made Walmart cough up 11 million bucks for hiring undocumented janitors. (Now you know why toothpaste costs fifteen dollars). But can they really leave intact a decision that creates such a blooey precedent?
Apparently they can.
And I’m just sitting here hoping SCOTUS won’t agree to hear a case I won when the Ohio Supreme Court actually did the right thing. Unanimously, no less! Sigh, again.
From your sighs to God’s ears. . . or somebody’s ears.
Did you accuse them of reading the briefs?
Heavens to Betsy, we wouldn’t dream of accusing them of such a thing!
Judicial immunity means never having to say you are sorry.
. . . or mistaken
Three cheers for Squawk for sticking its neck out. Someone had to say it.
LikeLiked by 1 person
This was one the biggest reasons I needed to get out of appeals. I kept imagining how I would die and there would be piles and piles of these unread briefs, gathering dust in my home office.
Yes, the only one who reads our briefs is the robot in People’s appeals. But we solved the dusty
briefs issue: we took a deep breath and threw them out. Haven’t looked back since.
Pingback: The charade of appellate review | Appellate Squawk