Guv to judges: want a raise? get to work on time.

Last week Governor Cuomo offered the judges a raise, but with strings attached: they have to promise to keep their courtrooms open from 9 to 5 (NY Law Journal 1/17/2018).

“The backlog of cases is tremendous, especially in downstate New York,” he said. “We have a chronic problem with people in Rikers Island who have been there for years who haven’t had their day in court. The judiciary wants a budget increase. The people of the state of New York have the right to know that the courts are open. … You have courthouses that are, literally, at one o’clock—the place shuts down. The judges have to certify that the courtrooms are actually operating nine to five.”

The indignant howls that went up! “Violates the Separation of Powers!” “Unfair to single out judges!” “Will add significant costs!” “Will decrease public confidence in our system of justice!”

What’s the big deal? So the courtrooms have to stay open. Doesn’t mean anybody, least of all a judge, has to be there. Have the cleaning lady sit comfortably at the prosecution table reading The Post.

Not all the reactions were negative. “I know our hardworking judges will do their best to meet the Governor’s request,” said the aptly named Judge Prudenti.

Posted in Judges, Law & Parody | Tagged | 2 Comments

Seven words to be banned in court

According to the Washington Post, the Center for Disease Control (CDC) was warned by their federal funding agency not to use the following seven words: “vulnerable,” “entitlement,” “diversity,” “transgender,” “fetus,” “evidence-based” and “science-based.” The suggested substitute for “science-based” was “science in consideration with community standards and wishes,” as illustrated below:

Scientific disease control in consideration of community standards and wishes.

The federal agency indignantly responded that they’d never banned these words. On the contrary, the CDC is perfectly free to use them so long as they don’t mind losing their funding.

The notion of seven forbidden words naturally brings to mind George Carlin’s comic monologue “Seven dirty words,” which turned into a federal case when a man heard it on edifying public radio while driving with his 15-year old son. We can imagine why Dad was so pissed (one of the forbidden words). No doubt the teenage boy was hysterically laughing and chortling, “fuck!” “tit!” instead of being edified. As a result, dirty words are prohibited on the radio except between the hours of 10 p.m. and 6 a.m. when adults are asleep.

Here are seven words that should be banned in court:

  1. “Evidence-based.” Used by the prosecution in domestic and sex cases to mean exactly the opposite, namely a trial based on hearsay because the complainant doesn’t want to testify.  Comparable to the MTA’s term “Fast Track” meaning “no trains all weekend.”
  2. “Vulnerable.” Helpless little children and doddering old people, defined as anyone under 18 or over 50. Women of any age.
  3. “Judicial Discretion.” Arbitrariness immune from appellate review.  See “Fast Track.”
  4. “Reasonable Inference.” A way to arrive at the desired result in the absence of proof. See “Fast Track.”
  5. “Self-serving.” Anything said by a defendant in his defense.
  6. “Flexible standard.” Bent, stretched or twisted to favor the prosecution.
  7. “Obviously” (or “clearly,” “plainly,” “it is axiomatic that. . .”). Completely unsupported. See “Reasonable Inference.”



Posted in Law & Parody | 3 Comments

The Case of Masterpiece Cakeshop

What’s an evangelical Christian baker to do when asked to design and decorate a custom cake for a gay wedding? If he complies, he violates his religious objections to same-sex marriage. If he refuses, he’s prosecuted for violating the public accommodation laws. So his mom-and-pop bakeshop has to stop making wedding cakes altogether, at the expense of nearly half their business.

The case started in 2012 when Colorado couple Charlie and Dave asked Jack Phillips, the owner and cake artist of Masterpiece Cakeshop, to create a custom cake for their wedding.


Phillips explained in his deposition, “I do not create wedding cakes for same-sex weddings because of my religious beliefs, and also stated that Colorado does not allow same-sex marriages [as was the case in 2012].

“As a follower of Jesus, and as a man who desires to be obedient to the teachings of the Bible, I believe that to create a wedding cake for an event that celebrates something that goes directly against the teachings of the Bible would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.

“I would be pleased to create any other cakes or baked goods for Charlie and David, or any other same-sex couples.”

Charlie and Dave’s deposition states that they left the store and cried. A campaign of hostile phone calls and picketing followed.

Engaged gay couple Dave Mullins, second from left, and Charlie Craig, left, were joined by a small group of supporters in Lakewood on Saturday, August 4, 2012 to protest and boycott the Masterpiece Bakeshop.  — The Denver Post

The couple filed a complaint with the Colorado Civil Rights Commission, which found that Phillips had violated the public accommodation laws that prohibit withholding goods and services based on sexual orientation. “Freedom of religion used to justify discrimination is a despicable piece of rhetoric,” said one of the Commissioners.

The Colorado federal court upheld the ruling, holding that opposition to same-sex marriage “is tantamount to discrimination on the basis of sexual orientation.” The case went to the U.S. Supreme Court, which heard oral argument on December 5th.

Charlie and Dave obtained a wedding cake from another bakery.  A group of cake artists filed with the Supreme Court an “Amicus Brief in Support of Neither Party,” describing the symbolism and artistry of wedding cakes and explaining, “By incorporating the familiar rainbow symbol in the batter, the multi-colored cake layers reveal that the cake is not just for a wedding but for a same-sex union.”

The ACLU, representing Dave and Charlie, says this is a straightforward case of a retail business unlawfully refusing to sell a product to persons based on their sexual orientation. They argue that if exceptions to the public accommodation laws are allowed for expressive goods or religious objections, bakeries will deny birthday cakes to black children, architects will refuse to remodel Latino homes and hair salons will “refuse to style the hair of a girl born in Mexico for her quinceañera,” if they oppose Mexican immigration.

And if that’s not bad enough, the baker is represented by the Alliance Defending Freedom, a conservative Christian organization that the Southern Poverty Law Center has dubbed a hate group.

But the First Amendment frowns on forcing people to express messages they disagree with, no matter how worthy the message or “despicable” the disagreement. Whether it’s a Jehovah’s Witness compelled to display a license plate saying “Live Free or Die;” a newspaper compelled to give a “right of reply” to political candidates it opposes; a gas company compelled to include a third party’s literature in its gas bills; or a St. Patrick’s Day parade compelled to include the banner of an LGBT advocacy group (Hurley v. Irish-American Gay, Lesbian and Bisexual Group [“GLIB”]), the principle is that the First Amendment prohibits the state from forcing a person to convey a message he objects to. And that objecting to a protected group’s message isn’t the same as discriminating against that group.

In Hurley the Supreme Court unanimously rejected the argument that a parade is merely a recreational activity, so that refusing to include GLIB was the same as a restaurant refusing service because of race. The Court agreed that the parade was subject to the public accommodation law, but also found it to be a form of symbolic expression whose message would be altered against the organizers’ will if they were compelled to include the GLIB message. The First Amendment makes no judgments about the worthiness of the message: no matter how enlightened it is, a speaker can’t be compelled to endorse it.


The ACLU insisted in their brief and at oral argument that Phillips is guilty of refusing to “sell” “baked goods” to Dave and Charlie. As if he were a cashier at the local  7-11 forbidding them to buy an Entenmann’s cake.

But not even Dave and Charlie would deny that a wedding cake isn’t just a baked good, but a traditional symbol of a marriage celebration. Cutting the cake together, feeding it to each other and distributing it to the guests is the couple’s first joint public act as newlyweds, proclaiming their status as a union. Couples often save a piece of their wedding cake for years afterwards, making it a kind of secular relic. Which is why people may pay hundreds or even thousands of dollars for a custom-made wedding cake instead of getting it from the 7-11.

Nor is it accurate to call Phillips’s objection a refusal to “sell.” Given his personal involvement in designing and creating his custom wedding cakes in consultation with the nuptial couple, the cake can reasonably be perceived as expressing his “personal endorsement and participation in the ceremony and relationship that [the couple] is entering into.” That message is completely altered if the ceremony is a same-sex marriage that violates his beliefs.  He’s not like a cable company that merely provides a venue for numerous viewpoints and can easily disclaim endorsement of any of them. (Needless to say, the cake with the disclaimer footnote pictured above is imaginary).

So he’s not the same, as Justice Kagan suggested at oral argument, as a hairdresser creating “a wonderful hairdo.” A hairdo, however wonderful, isn’t intended or viewed as conveying a message.  Nor is a custom-made wedding cake just something to eat, as Justice Sotomayor opined, asking, “when have we ever given [First Amendment] protection to a food?”

In Obergefell v. Hodges, where the Supreme Court recognized same-sex marriage as a fundamental right, the Court also expressly recognized the First Amendment right not to “condone” it on religious or other grounds. Just as objectors can’t bar same-sex couples from getting married, the advocates of same-sex marriage can’t invoke the power of the State to penalize people who express objections, wrongheaded though they may be.

Discrimination against persons is terrible, but that’s not what this case is about. Phillips, like the Jehovah’s Witness who went to jail rather than drive with a license plate saying “Live Free or Die,” is upholding the right of all of us, of whatever gender, color or religion, not to be compelled to express a message we oppose.

Here’s Phillips’s account:  Youtube video

The briefs (including the Cake Artists’ amicus) and oral argument can be found on Scotusblog.

Posted in Civil Liberties, First Amendment, Law | Tagged | 9 Comments

“Appearing in court isn’t supposed to be fun.”


Anyone unlucky enough to have their presence required in a New York City criminal court can sit in the courtroom for hours, shouted at by overbearing court officers in bulletproof armor and unable to get the attention of anyone who might know when or if their case will be called. There are long stretches where nothing seems to be happening and the judge isn’t even there, but you don’t dare ask what’s going on. As likely as not, when your case is finally called, you’re just given a date to come back for more of the same. In sum, NY courts have all the dignity of a pineapple cannery with none of the efficiency.

The cops and court officers would like to keep it that way. When, as part of a project to make the process more user-friendly, the Center for Court Innovation [CCI] created a 144-question survey for defendants, the tough guys howled in indignation.

“Appearing in court isn’t supposed to be fun,” they explained.  “You want these people not to want this to happen again. It’s not supposed to be a positive experience to get locked up or get a summons.”

The enforcers were particularly outraged by questions suggesting that court staff, including judges, should be helpful and courteous. “It’s not my job to be nice,” was the retort.

The NY Post agreed that the survey was nothing but Mayor De Blasio’s “latest crook-coddling push.

What really put their noses out of joint was the $15 Dunkin Donuts gift card offered as an incentive to participate in the survey. “Many of these people committed crimes,” observed the president of the Court Officers Association. “How much more do we want to coddle them?”

The survey is based on the CCI’s theory, explained in their 3-minute animated video “Procedural Justice,” that the way people are treated can be more important to them than the outcome of their case. If people understand the procedures and their legal rights; perceive the process as neutral and transparent; feel that their side of the story is being heard; and are treated with dignity and respect, they’re more likely to follow the law in the future, even if they lose their case.

(On a geeky note: offering a gift card for participating is a way of making the survey more representative. Otherwise, the only people who’d take the time to answer are the ones with a beef).

Here are some of the questions asked:

Did someone who works for the court say “hello” or “good morning” to you when you entered the courtroom?

Did the judge or court officer tell you about how long you would wait until your case was called?

Did the judge or court staff apologize for any delay before your case was called?

What would have made the waiting experience better?

Did you know why some people’s cases got called before yours?

If you had a question, did you know who in the courtroom to ask?

Did the court officers or clerk give helpful answers to questions?

Did the court officers or clerk seem happy to answer any questions anyone had?

Did the judge introduce himself or herself at the beginning of the court session?

Did the judge explain that you are innocent unless proven guilty?

Did the judge seem concerned about making sure you understood everything that was going on in your case?

Did the judge show bias in favor of the prosecutor?

Did you feel pushed around by people with more power than you?

The survey also asks about confidence in the criminal justice system, such as whether it treats persons with “dignity and respect,” or “the average person cannot understand what takes place in the courts.”

The last section asks about attitudes towards law, such as whether people “should obey the law even if it goes against what they think is right,” or whether “laws prevent me from doing what I want” and believe that “breaking the law is no big deal as long as you do not physically harm someone.”

A 2-page CCI handout proffers unheard-of but stunningly obvious practical suggestions: there should be a “welcoming and respectful atmosphere” at the courthouse entrance instead of the typical cattlecar ambience. The judge’s bench should be at eye level to enable meaningful eye contact. People are entitled to an estimate of wait time. (If the subway system can do this, why can’t the courts?). The judge should apologize for, or at least acknowledge, how long s/he’s kept people waiting. (As opposed to routinely sashaying in at 11:30 to a courtroom full of people who’ve been sternly ordered to be there at 9:30).  Judges should avoid the appearance of coziness with the prosecutors and call the defendants by name instead of “defendants” or “bodies.”

We stopped by the Manhattan criminal court to find out more. As usual, everyone had the NY Post open in front of them. But they didn’t know nothing about no survey.

It’s not wimpy to be courteous to the public. Even if some of them are criminals. Or worse – –  defense lawyers.

An updated version appears in The Crime Report.

Posted in Criminal procedure | Tagged , , | 3 Comments

Maestro James Levine

James Levine is one of the greatest living conductors and musicians of our time. We know this because the Metropolitan Opera Orchestra, which usually gets up and leaves as soon as they’ve played the last note, would stay in the pit to join in the applause when Maestro Levine was the conductor, even back in the days before he had to conduct from a wheelchair.

Now he’s been destroyed by accusations from four middle-aged males claiming that he ruined their lives by masturbating them decades ago when they were 16 and 17 years old. The Met responded by summarily canceling all his scheduled appearances.

Apparently nobody is so nitpicking as to question the veracity of these accusers, let alone ask why it took them 40 years to speak up, or what sudden access of public spirit induced them to accuse him now. Given that none of these traumatized victims allege that they were forced, nobody dares ask: even if he touched their precious junk forty years ago during that brief era when sexual freedom wasn’t a contradiction in terms. . . so what?”

We’re not a musician, but we and millions of others have been inspired for most of our conscious lives by James Levine as a pianist and conductor.  Now this insane society is ready to annihilate him with no one so far uttering a peep in his defense.

We hope no reputable conductor will agree to substitute for him in his cancelled performances. We hope everybody who has tickets to those performances will exchange them for something else. We hope somebody more important than a mere appellate squawk will stand up for him.

Posted in Civil Liberties | Tagged | 3 Comments

“What cross-race charge? What are you talking about?”

“All the identifying witnesses were speaking from casual observation of men they had never seen before, men of foreign race, under circumstances of unusual confusion.” Felix Frankfurter, The Case of Sacco and Vanzetti (1923).

We recently watched an oral argument in the Court of Appeals involving a Brooklyn man accused of stabbing a stranger to get his cell phone. At trial, defense counsel had asked the judge to give “a cross-race charge,” referring to New York’s jury instruction added in 2011 to the book of standard jury charges.

“What cross-race charge?” retorted the learned judge, who apparently hadn’t updated his charge book in awhile. “What are you talking about?”

Although there was no question that the defendant and eyewitness were of different races, the judge ended up giving only the standard charge about credibility and opportunity to view, leaving out the 2011 addition that says, “You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness’s identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.”

The prosecutor at the oral argument, after some chin music deploring wrongful convictions, opposed any cross-race instruction. “It’s not neutral,” he kept bleating. It talks about cross-race identification “in a negative fashion!” If there must be such an instruction, it should only tell the jury to consider what effect, if any, the race difference had on the identification.

A couple of the judges gently explained that the point of giving the instruction is that the cross-race effect is negative. The scientific consensus is that cross-racial identifications are more likely to be mistaken than same-race i.d.’s, but most jurors don’t know this. “Since when are courts in the business of telling jurors things not within their ken?” the prosecutor sneered back.

Since when are courts required to give only neutral instructions? Imagine this:

“Ladies and Gentlemen of the jury, you may consider whether the People have proved the defendant’s guilt beyond a reasonable doubt and what effect, if any, that might have on your verdict. You may also consider what adverse inference, if any, to draw from the defendant’s failure to testify. As for visiting the crime scene, reading or watching media accounts or discussing the case outside the jury room, you may consider what effect, if any, that might have on your ability to reach a verdict based only on the trial evidence.” 

The rule in Massachusetts and New Jersey is that a cross-race instruction is mandatory whenever identification is at issue unless both parties agree that it’s inapplicable to the case. The instruction goes, “If the witness and the person identified appear to be of different races (or ethnicities), you should consider that people may have greater difficulty in accurately identifying someone of a different race (or ethnicity) than someone of their own race (or ethnicity).”

Unlike NY, the Red Sox Republic relies on scientific consensus about the cross-race effect instead of folk psychology about “ordinary human experience.” The full charge explains that memory is not like a video recording that can be replayed unaltered, but a process of encoding, storing and retrieving that can be tainted at any of those stages. “It annoys me no end to hear it argued that it’s not appropriate for judges to instruct on science,” said the Chief Judge of the Massachusetts court at a recent Innocence Project event.  “If you don’t give the charge, you’re misinforming the jury. You’re urging them to use common sense when the science is counter-intuitive.”

Defense counsel urged the Court of Appeals to adopt the Massachusetts rule. “But we’re talking about New York now,” answered one of the judges. Well, yes. When it comes to implementing safeguards against misidentification like double-blind lineups, expert testimony or jury instructions, the Brooklyn DA’s Office can be counted on to oppose them tooth and nail.

They might as well object to the tide coming in.

Addendum: A month later the Court of Appeals held that courts must instruct the jury about the unreliability of cross-race identification. Judge Michael “Homeland Security” Garcia, after duly genuflecting to the notion that misidentification is bad, nevertheless fumed that a mandatory instruction trespasses on the trial judge’s holy discretion. In our humble opinion, most trial judges – except for the nuts who get reversed over and over for making up their own jury instructions – would rather have a clear mandate than have to think about it every time.  

People v. Boone

Posted in Criminal Defense Appeals, eyewitness identification, Law & Parody | Tagged , , | Leave a comment

Court admits expert water-dunking testimony as relevant, helpful to jury.

 The trial court did not abuse its discretion in admitting expert testimony concerning defendant’s failure to pass the water-dunking test. Dr. Brimstone, who has testified in over 200 witch trials, was plainly qualified to explain to the jury that immersing a suspect in water has long been accepted by the forensic dunking community as a reliable technique for determining guilt.  Defendant failed to proffer scientific research supporting his criticisms of dunking methodology, which in any event, go to weight, not admissibility. It is well-established that admissibility is firmly within the sound discretion of the judge who can admit whatever the hell he wants so long as it’s been admitted before.  We find no error where, as here, the testimony was clearly relevant to a matter at issue and helpful to the jury in reaching a guilty verdict.  — United States v. Serious Science (2017).

We stole this idea from Judge Nancy Gertner (Ret.), famous for her caustic wit when it comes to pseudo-science in the courtroom. The occasion was the Innocence Project’s 25th Birthday bash, celebrating a quarter of a century of exonerations, but also puzzling over why they’ve made hardly a dent in everyday judge-think.

Another refreshingly forthright voice at the party was Chief Judge Harry Edwards of the DC Circuit, who oversaw the National Academy of Sciences Report in 2009.  The NAS Report, if you remember, rocked the criminal justice system by exposing forensic “science” as nothing but the opinions of cops in labcoats. “Just being based on science doesn’t make it scientific,” said Judge Edwards. “That’s like saying a movie is based on a true story.”  “Experts” testifying to “100% certainty” that a bullet, footprint, hair or bitemark “matches” the defendant’s gun, shoe, head or teeth is just humbug.  No matter how carefully you peer through a microscope, it’s meaningless to say that two objects are similar if you don’t have a database and statistics to know what similarity means.

In other words, it’s like declaring a match between two faces because they both have two eyes and a nose.

Gertner and Edwards agonized over why neither the NAS Report nor the even more devastating 2016  PCAST report has had so little effect in the courtroom. “It drives me completely out of my mind that judges are still admitting bitemark testimony,” said Edwards. “It doesn’t matter whether the lab follows standardized procedures if the whole field has never been shown to be valid or reliable.”

Noting how the present administration has put forensic science reform under the control of the Department of Justice, Edwards called the situation “a nightmare.”  Reform can’t be left in the hands of prosecutors, “who created the problem in the first place,” he said.  There has to be an independent agency of “real scientists” to create “a culture strongly rooted in science.” But the DOJ snuffed out the burgeoning National Commission on Forensic Science and replaced it with an in-house “working group” headed by a career prosecutor who thinks “the jury is still out on bitemarks.”

“And that’s why we’re not going anywhere,” said Edwards.

Both judges agreed that criminal defense attorneys need to take more initiative in challenging pseudo-science. Gertner recalled her frustration at hearing an arson expert testify like this:

Expert: I had Billy the Dog inspect the scene of the fire. I looked into her eyes and saw that she was telling me it was arson caused by a fire accelerant.

Judge: (to defense lawyer) Any objection?

Lawyer: No, judge.

Expert: I could tell by the position of Billy’s tail that she wanted me to know the fire was ignited by a petroleum distillate so as to collect insurance on the property.

Judge: (being driven completely out of her mind) Any objection, counsel?

Lawyer: No, judge, I’m good.

Edwards and Gertner were unsparing of their colleagues. “Non-science is enshrined in judicial opinions,” said Edwards. Courts simply repeat experts’ claims that their field has a zero error rate. No scientific discipline has a zero error rate. “Judges will not get off their duffs until real scientists come in with real studies,” he concluded.

Gertner saw the problem as that trial judges are never reversed for admitting evidence so long as there’s precedential authority for it. “Courts conflate legal precedent with general acceptance in the scientific community,” she said. “Someone needs to be reversed for admitting shoeprint or bitemark testimony.”

She castigated the judicial “dodge” of saying that the discrediting of these forensic disciplines “goes to weight, not admissibility.”  What if the prosecution proffered expert testimony on dunking? Would it be within the judge’s sound discretion to admit it?

Next: How they do things in Massachusetts.


Posted in Forensic "science", Judges, Law & Parody | Tagged , , , , | 5 Comments