The Presumption of Innocence, “Sleeping on One’s Rights” and Fundamental Fairness

One of our finest moments in court was hearing a tearful prosecutor whine, “Judge, I know he did it, I just don’t have proof.” Too bad, so sad. No proof, no foul.

So we were shocked to discover during the furor over Justice Kavanaugh’s confirmation how many people believe that the mere fact of an accusation constitutes proof. Not only the demonstrators in pussy hats scapegoating him for all the wrongs inflicted on women, but lawyers. 

The most extreme example comes from an indignant Facebooker waving aloft her degree “from one of the top law schools in the country,” only to descend into hillbilly talk:

“Y’all need to delete the phrase ‘innocent until proven guilty’ from your lexicon until you are prepared to use it correctly. Seriously. Next one of you I hear blithely parroting this phrase in the wrong context, I might just have to whack you upside the head.”

This legal eagle (whose career is in public relations) explains that as a matter of law, women’s accusations of sexual misconduct are presumed to be true until the accused disproves them.  A reminder not to rely on Facebook for legal information.

But all too often we’ve heard otherwise reasonable people assert that presumption of innocence applies only to criminal trials. As if it were a quaint courtroom custom, like the judge’s robe or the velvet cord separating the public from the bench.

The presumption of innocence is nothing more – or less – than the principle that the accuser has to prove her accusations. The standard of proof may vary according to what kind of proceeding it is, from “beyond a reasonable doubt” in criminal trials, to “more likely than not” in civil trials, to “some evidence” in prison disciplinary hearings, but the principle is the same: it’s for the accuser to prove guilt, not for the accused to prove innocence. It can never be fair to inflict injury on a person just because accusations were made, whether it’s a trial or a playground dispute.  If even lawyers treat the presumption of innocence as irrelevant to everyday life, it’s pretty hard to expect juries to apply it in the courtroom.

There’s also the tenet that accusations made long after the accuser could have brought them, i.e., “sleeps on her rights,” should be disfavored.  The purpose of statutes of limitation and the doctrine of laches is “to protect individuals from having to defend themselves against charges when the basic facts have been obscured by the passage of time; and to minimize the danger of punishment because of acts in the far-distant past.” This was an established precept even before psychological research demonstrated how thoroughly memory can be tainted over time. We now know that people not only forget what happened, but may sincerely “remember” what didn’t.

But legislatures have stood this principle on its head by eliminating statutes of limitations for sexual assault. The fact that the complainant said nothing for decades is now considered proof of how traumatic the event must have been, and therefore, of the guilt of the accused.

It’s up to reasonable people (which may or may not include lawyers) to insist on fairness, even towards – especially towards – people whose politics they despise. Sir Thomas More had it right when his son-in-law Will Roper argued that legal principles should be set aside when the cause is just:

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?

Yes, I’d give the Devil benefit of law, for my own safety’s sake!

― Robert Bolt A Man for All Seasons

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New labels for old

We’ve just received a directive to reform our vocabulary in compliance with The Criminal Justice Reform Phrase Guide authored by The Opportunity Agenda, a progressive propaganda outfit describing itself as a “social justice communication lab” that “shapes compelling messages and narratives” to combat “well-financed communication efforts that support inequitable and unjust policies.”

The Guide sets out “Five Tips for Language That Changes Hearts and Minds,” #1 being “People, Not Labels.” Thus, we speak not of prisoners, but of “People who are currently incarcerated.”  Ex-Cons should be called “People who have paid their debt to society.” Offenders are “People who have committed offenses.”

Burglars are “People who do not have the house keys,” and drug dealers are “People whose merchandise lacks FDA approval.” JUST KIDDING, sorry, sorry, sorry. But when it comes to describing People who have committed offenses, there’s not much you can teach a defense lawyer about euphemism.

Under Tip #2, one eschews the terms “racial disparities” and “gaps,” substituting “Obstacles to Equal Justice, Discriminatory School Discipline, Racial Profiling and Unconscious Bias resulting in unequal rates of arrest, incarceration, long sentences.” Which makes for a very long sentence indeed.

One does not call neighborhoods “dangerous,” but “Communities experiencing high levels of violence.”

Under Tip #5, the way to “Foster New Thinking and Innovative Approaches” is to replace “punish crime” with “Prevent Harm, Promote Community Safety. ” “Law and Order” becomes “Accountability, Rehabilitation, Equal Justice, Due Process.”

Not to be negative, but we have little hope for a t.v. series called “Accountability, Rehabilitation, Equal Justice, Due Process.”

Another example of the Opportunity Agenda’s shaping of compelling messages and narratives is a comic book featuring a heroine who transforms from “Ariel Black” to “Helvetika Bold” (misspelled typefaces, get it?).

The villain is “The Mindset,” a robot with a keyhole for a face, who declares, “Consumers! Behold as I ravage the Truth, play on your fears and defeat your hopes and aspirations using the most powerful weapon ever known. . . THE DOMINANT NARRATIVE!

Beneath The Mindset are five disembodied heads trapped in ice cubes saying things like, “Lost your home? Well, sorry, buddy, some people just shouldn’t own houses,” and “Look, I love legal immigrants. . .it’s just those Hispanic ones I can’t stand!”

Comes now Ariel Black, a slender black woman with glasses, “who dares to speak counter to The Mindset,” and is duly reviled by the powerful organization “Media Corpse.” She stalks over to their headquarters to demand a retraction, passing through a community experiencing a high level of people whose heads are enclosed in ice cubes, and ends up in the old composing room where “the great underground newspapers of the past” are buried.

“Man, they were the real deal,” she exclaims, apparently never having seen an underground paper, with or without trigger warnings, of which this is a typical example:

Suddenly, KRZZAAAK!!!  and four-eyes Ariel metamorphoses into the hefty Helvetika Bold. Her first act is to reshape the consumerist, Truth-ravaging messages of Times Square:

The ice cubes around people’s heads melt, as they say things like, “Makes me wonder why I am being paid less than my male co-workers?” and “Maybe another world is possible?”

“The fight for our common narrative is far from over,” warns Helvetika, brandishing her fists, Maoist poster style.

“Watch as our hero battles against NEW VILLAINS” in the next issue, advises the comic.

We feel transformed already.

Posted in Criminal Defense Appeals, Law & Parody | Tagged | 3 Comments

Judge Kavanaugh’s crickets

What with all this brouhaha over Judge Kavanaugh’s high school conduct, it’s time to look at some of the more substantive issues, such as his outstanding crickets jurisprudence. This might have been entirely overlooked but for the ever-alert Lowering the Bar.

Here are a few salient excerpts from Judge Kavanaugh’s opinions:

“Nothing in [the statute] pins a jurisdictional label on this requirement; indeed the entire provision is crickets on judicial review.”

Sack v. U.S. Dept. of Defense (D.C. Cir 2016) (Kavanaugh, J.).

“Think about what the FCC is saying: Under the rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets.

U.S. Telecom v. FCC (D.C. Cir. 2017) (Kavanaugh, J., dissenting).

“Even if a reasonable police officer could have doubted the credibility of the trespassers who claimed to be invitees, those credibility doubts do not count as “conflicting information.” What case had ever articulated such a counterintuitive rule? Crickets.”

Wesby v. D.C. (D.C. Cir. 2016) (Kavanaugh, J., dissenting)

In case you’re not up on the latest judicial slang, “crickets” means silence where an answer is called for, as in, “After hearing nothing but crickets from the FDA, plaintiffs filed suit alleging unreasonable delay.”

Or, as a Texas judge warned about “a federal take-over,” where “this Court will stand by watching as it happens, doing nothing and saying nothing. All that will be heard is the sound of crickets.” Ex Parte McCarthy (Tex. Crim. App. 2013).

Might be a relief to hear nothing but crickets for a change.

Posted in Judges, Law & Parody | 1 Comment

Queens judges say the darndest things

Welcome to Queens, birthplace of the Mets, Weight Watchers and President Trump. Where, if you’re on trial for a crime, the prosecutor is likely to be the judge’s kid.

Picture this:

Prosecutor: Objection.

Judge: Overruled.

Prosecutor: Dad-dy!

Judge: Oh, all right. Just this once. Sustained.

The Queens DA’s Office – the pipeline to the Queens judiciary – sees nothing shady about hiring their judges’ little gene copies. Indeed, says their spokesperson, it would be wrong to reject applicants just because of who their parents are!

Then there’s Queens Judge Hollie, who’s set a record for being reversed four times over the last 15 months.

How in the world did he manage to provoke the Appellate Rubber-Stamps into one reversal, let alone four? By trying to run trials without the pesky interference of lawyers.

Does the prosecutor need help shoring up his witness’s credibility? No worries, Judge Hollie will take over the direct and cross-examination. In one case, he interjected himself into the questioning over 50 times, asking over 400 questions.

Is defense counsel being a little too efficient about impeaching the witness with her inconsistent testimony? Judge Hollie will instruct the jury that, in his opinion, she’s telling the truth.

Is the prosecutor not eliciting enough testimony damaging to the defense? Judge Hollie to the rescue!

Tut, tut, said the Second Department. Even if we all know the judge is a prosecutor in a robe, he mustn’t look like one.




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Granny stun-gunned for gathering dandelions

Martha Al-Bishara is 87 years old.

Came from Syria 22 years ago.

Worked on farm. Became citizen. Lives in Chatsworth, Georgia.

Walks across street to vacant lot to gather dandelion greens for salad.

Has small kitchen knife.

Vacant lot is property of Boys and Girls Club.

Boys and Girls Club calls 911 saying non-English speaking old woman who “can’t get around too well,”  is “walking around looking for something like, vegetation, to cut down” and put in bag.

Three cops respond to emergency.

Observe her cutting dandelion and putting in bag.

Two cops point guns, order her to drop knife.

Cop says, “Her demeanor was calm, even seeing our guns out.”

She walks toward them.

Cop shoots taser prongs into her in breast and stomach.

She cries out and falls.

“An 87-year old woman with a knife still has the ability to hurt an officer,” explains Chief of Police. “The thought behind that would be if the officer had retreated, with her being in an elevated position, he could easily have fell down, at which time she could have been progressing on top of him and deadly force could have been used at that point in time.”

All 3 cops manage to escape with their lives.

Dandelions also safe, except for victim in perp’s bag.

Property damage and threat to safety of Boys and Girls Club yet to be determined.

911 caller awarded Chicken Little Medal for bravery.

Cops flip her over, handcuff her, take her to jail.

Try speaking Spanish to her.

Held for 2 hours.

Charged with trespassing and obstruction of justice.

Family gets her out, takes her to hospital.

Is confused and in distress.

Afraid to go out. Can’t sleep. Repeatedly apologizes to family for getting them in trouble.

Grannies’ lives matter.

Addendum. The Greek friend who alerted us to this story writes about dandelion greens:

Greeks think of them as a super healthy food
Good to lower BP
Good to lower BS
Good for the prostate, etc. etc.
It’s a very common side dish with fish
Like a potato with a steak is in US
They are a little bitter, like chicory,
(but the young tender leaves are much less bitter- that’s what the 87 year old granny was after).
I think it’s important for readers to know that she wasn’t just a demented granny with a knife, cutting grass
Her actions had a purpose
… secure a delicacy prized in her culture.
Posted in Law & Parody | 2 Comments

Albany prosecutor fired for secretly writing defense briefs

Defense lawyer Cheryl Coleman thought it was a brilliant idea to hire her local Assistant District Attorney – the aptly named Steve Sharp – to write her criminal appeals on the QT.  For years, Sharp and Coleman regularly appeared against each other in court without anyone’s knowing of their financial relationship.  Not the judge, not the client on trial, and certainly not [ex] ADA Sharp’s boss, the Albany District Attorney.

This was probably La Coleman’s worst idea since going to a Halloween party as Tawana Brawley.

An appellate attorney discovered the boondoggle. He urged the pair to come clean and inform the court. Sharp and Coleman refused, indignantly accusing the attorney of extortion and of trying to ruin Sharp’s career.

All the while stoutly maintaining that they were doing nothing wrong.

“It isn’t that big a deal to do some issue spotting for another attorney,” explained Sharp. “The notion that Ms. Coleman aided me in furtherance of my career is, quite frankly, laughable.”

“Completely ethical,” said Coleman. Besides, she expounded, all the Sharp-authored appeals were for cases “far from Albany.”

Even after learning that Sharp was secretly working for a defense lawyer while acting as her adversary in court, Albany DA Soares inexplicably did nothing.

Until the Albany Times Union broke the story a month and a half later.

Soares fired his subordinate, but not without giving him a “very positive” recommendation to the Albany Public Defender, Stephen Herrick. Herrick is a retired judge who, in the cozy world of Albany, knew Sharp and was thrilled to give him a job. “I’ve seen him grow as an attorney, as a human being,” gushed the septuagenarian. “He’s one of the brightest young legal minds that I’ve seen in the Capital District.”

It’s unlikely that the Public Defender’s Office was Sharp’s first choice, given that he’d been pulling down a salary of $112,164 at the DA’s Office and still felt the need to make money on the side.  We imagine the phone calls not reported in the Times Union:

VOICE: You have reached the Office of the Very Far From Albany District Attorney.

ALBANY DA: Say, Joe, how would you like to hire one of the brightest young legal minds in the Capital District?

VFFA DA: Why’re you letting him go? Some #MeToo thing?

ALBANY DA: Ha, ha. No, he’s just been doing a little issue spotting on the side. If you know what I mean.

VFFA DA: Oh, him. Yeah, I really want to hire an ADA who sees nothing wrong with getting paid to challenge convictions obtained by our Office. The idea is, quite frankly, laughable.

ALBANY DA: But you’re very far from Albany.

VFFA DA:  That doesn’t mean we’re in China. All his appeals were to the same appellate court as Albany. Plus, how does it look to have a prosecutor doing a trial against a defense attorney that he’s secretly working for?

ALBANY DA: But I’ve seen him grow as a human being.

VFFA DA: They both look pretty developed as human beings. Why doesn’t he just go work for her openly?

ALBANY DA: Must have been the secrecy that made it glamorous.

Photo from the Albany Times Union 8/8/2018. Defense attorney Cheryl Coleman looks on as ADA Sharp does some issue spotting for the Court of Appeals.


Posted in Criminal Defense Appeals, Law & Parody, Satirical cartoons | Tagged , , | 18 Comments

Masterpiece Cakeshop refuses birthday cake for Satan

I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake. I can provide it for you if you don’t have the means to procure one yourself.

Email received by baker Jack Phillips after prevailing in the U.S. Supreme Court case Masterpiece Cakeshop.

This was Satan’s third attempt to get a birthday cake from Masterpiece Cakeshop. The first email had asked for red and black frosting with an upside-down cross under Lucifer’s image, claiming that it was “religious in theme” and warning that “religion is a protected class.”

The second order was for a cake decorated with Satan smoking pot. The request was made by phone, with the caller i.d. of one Autumn Scardina.

Autumn Scardina is a transgender lawyer who’s started up a new prosecution — leaving Satan out of it this time — on the ground that Phillips refused to create a custom cake to celebrate “the 7th year of my transition from male to female.”

As Phillips explained:

The Bible tells us God created us male and female, and I believe that. A gender-transition cake is not something I’ve ever made, and it’s not an event I could celebrate. There are plenty of messages I won’t convey on a cake. I’ve turned down requests to make anti-American cakes, cakes disparaging the LGBT community, as well as those glorifying drug and alcohol use, mistreatment of women, divorce, and more.

Attorney Scardina professed to be “stunned” at his refusal.

Considering the publicity surrounding Masterpiece Cakeshop, either she was setting him up or she practices law from the bottom of a coal mine.

We knew this would happen. When the Supreme Court ducked the compelled speech issue in Masterpiece Cakeshop, they left the baker at the mercy of anyone who wanted to go after him again. All they had to do was order a custom cake with a message violating his Christian evangelical beliefs.  And, when he predictably refused, file a new discrimination complaint.

Phillips, again facing penalties such as compulsory “re-education” and a cease and desist order that would all but put him out of business, is now in federal court. He again explains that his refusal was based on the message, not the characteristics of the customer:

“Phillips cannot in good conscience express the messages that the cake would have communicated (i.e., that sex can be changed, that sex can be chosen, and that sex is determined by perceptions or feelings) or celebrate the event that the cake would have commemorated (i.e., the announcement of a change from one sex to the other based on perceptions and feelings).

“Phillips would not create a custom cake that expresses those messages for any customer, no matter the customer’s protected characteristics.

“Masterpiece Cakeshop did not decline this request because of the customer’s transgender status or other protected characteristic. Rather, it declined the request because of the messages that the cake would have expressed.”

We notice that nobody goes after black, Hispanic or Asian Christian evangelical bakers, let alone Muslim bakers, who are just as likely as Phillips to refuse to create a cake celebrating gay marriage or sex change.

We also note how, during the six years that Masterpiece Cakeshop was going on, the defenders of vulnerable minorities sought to re-educate Phillips with death threats, hostile phone calls and throwing rocks through his store window.

Isn’t tolerance wonderful?


Posted in First Amendment, Satirical cartoons | Tagged | 2 Comments