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

DOJ recommends new photo array procedures: no hints allowed.

The U.S. Department of Justice has issued new recommendations  for photo arrays – when cops show a witness the suspect’s photo along with photos of five other guys and ask which one is the perp.  The DOJ thinks it would look better if the cop showing the photos doesn’t know the right answer – the idea being that the witness should actually recognize the suspect without any noodging from the cop.

This and other recommendations for cleaning up police-arranged i.d. procedures have been around at least since the 1990’s, when the U.S. Attorney-General issued “A Guide for Law Enforcement.” This sent the NYPD and DA’s into an indignant tizzy – no criminal would ever be identified again!  Until they caught on that no matter what the cops do or don’t do, no court has ever met a photo array it didn’t like. For all the judicial handwringing about the unreliability of eyewitness identification, from the Sacco and Vanzetti trial to the DNA exonerations, nothing has changed in the way courts conduct suppression hearings.

A suppression hearing is where the cop who showed the photo array swears that everything was tickety boo, and in no way “unduly suggestive.”  To forestall any unworthy suspicions defense counsel might have, courts not only exempt the prosecution from calling the eyewitness to give her account of the procedure, but allow them to keep her identity secret until trial. Everybody takes the cop’s word for it, and that’s that.

The court then looks at the photo array, notes that the fillers are similar in age, give or take 20 or 30 years, similar in height, give or take a few feet, and similar in weight, give or take 100 pounds.  Any protest, such as that the defendant is conspicuously younger, thinner or hairier, is disposed of with the jocular observation that the police aren’t a theatrical casting agency.

But we mustn’t be cynical. Maybe the DOJ report will change everything. Here are some excerpts:

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“Neither the suspect nor any photographs of the suspect (including wanted posters) should be visible in any area where the witness will be present.”

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“The administrator should avoid using a photo that is several years old.”

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“Fillers should be sufficiently similar so that a suspect’s photograph does not stand out –

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but not so similar that a person who knew the suspect would find it difficult to distinguish him or her.”

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“If the suspect’s distinctive feature cannot be readily duplicated on the filler photographs, the feature can be blacked out and a similar black mark can be placed on the filler photographs.”

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“The administrator must avoid any words, sounds, expressions, actions or behaviors that suggest who the suspect is.”

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“The witness’s identification of a photo, if any, and the corresponding statement of confidence should be clearly documented by video or audio recording or by immediately writing down as close to verbatim as possible the witness’s identification and statement of confidence.”

"If the witness is vague in his or her answer, such as, 'I think it's #4,' the administrator should say: 'You said [I think it's #4]. What do you mean by that?"

“If the witness is vague in his or her answer, such as, ‘I think it’s #4,’ the administrator should say: ‘You said, I think it’s #4. WHAT DO YOU MEAN BY THAT?'”

Posted in Criminal law, eyewitness identification, Humor, Law & Parody, Satirical cartoons | Tagged | 2 Comments

Buttering up the judge

We recently came across this drawing by our hero Honoré Daumier (1808-1879) (whose desperate advocate we’ve appropriated in our masthead) that says everything you need to know about preparing for oral argument:

daumier-hat “Ai-je besoin d’éloquence devant un juge si haut placé; aussi familiarisé avec la forme qu’avec le fond et qui par sa position sera toujours à la tête de l’humanité.”

Google translation: “Do I need eloquence before so high a judge? As familiar with form as with background and who by his position will always be at the head of humanity?”

Sensing that some nuances had been lost in translation, we consulted our multi-lingual friend, an interpreter at the UN in Vienna.  She wrote back:

“Humph, work for breakfast!

I’d never seen this one before.

So, he’s practicing declaiming.

One step beyond anthropomorphism, since it’s with a stick.

Nothing out-of-way in the expressions.

The French are always talking about forme et fonds, presentation/structure and substance. But these are also hatmakers’ terms:  since felt hats are molded/formed and tophats have crowns with fonds in them. When forme et fonds are in harmony, all is tiptop.

And to be at the head of humanity is to be tops, as well as a topper.

And now, back to my baguette beurre!”

 

Posted in Judges, Law & Parody, Satirical cartoons | 3 Comments

Judge Saxe tells all

Reversals are disruptive to a system that values predictability and productivity because reversal often means that the matter must be done over.  Judge David Saxe, “Paths to Excellence,” NY Law Journal.

We thought we were pretty earthy about the System, but it takes a mind like Judge Saxe to liken its values to a bowel movement.  No wonder the appellate courts never reverse. Who’d want a case of diarrhea?

Rubber stamp

 

Posted in Criminal Defense Appeals, Law & Parody, Satirical cartoons | 1 Comment