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:


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


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


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


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


“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.”


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


“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

Happy New Year from the compassionate NYPD



Posted in Humor, Photos | 1 Comment

Santa Claus is Level 3


Scene: SORA hearing in front of Judge Dudgeon Bludgeon.

ADA Tightskirt: Judge, Mr. Claus should be adjudicated a Level 3 maximum risk sex offender. He’s a recidivist sexually motivated burglar.

Santa Claus: (appearing pro se) Nonsense! I’ve never had any trouble with the law except a few tickets for not cleaning up after my reindeer. 

ADA Tightskirt: Just because he’s never been convicted or even arrested for a sex crime doesn’t mean he hasn’t committed one. [taken verbatim from a People’s brief].

Judge Bludgeon: Yes, it looks like he’s been repeatedly breaking and entering after dark with intent to commit a crime.

Santa Claus:  What crime? I’m just bringing toys to good little girls and boys.

ADA Tightskirt: Oho! Classic grooming behavior! You want to induce them to sit on your lap at Macy’s!

Judge Bludgeon: You disgusting perv!

Santa Claus: How could I be at Macy’s when I’m busy making toys at the North Pole?

Judge Bludgeon: What? You’re telling me Macy’s Santas are imposters?  That explains why I never got what I wanted for Christmas! I begged for an atomic bomb and never got anything but socks.

ADA Tightskirt:  I never got anything but coal in my stocking.

Santa Claus: I remember you. Your kindergarten nickname was Tattletale Tightskirt.

ADA Tightskirt: You’re a menace to public safety! Unlawful sliding down chimneys! Unauthorized distribution of toys! Unlicensed driving with reindeer! Repeatedly stating, “Ho, ho, ho!” obviously referring to sex trafficking. And just what is your immigration status?  You should be under the sex offender residency restrictions and prohibited from living within a thousand feet of a school, park, daycare center, beach, playground or other area where children congregate.

Santa Claus: Good thing I live at the North Pole. Nothing there but elves and walruses.

Judge Bludgeon: An inappropriate living situation if there ever was one. Level 3.

Santa Claus: Peace on Earth and good will to all.

Judge Bludgeon: Away with this terrorist!




Posted in Criminal law, Humor, Law & Parody, Satirical cartoons, SORA | Tagged | 4 Comments


An eye for a story

Source: Home

Posted in Law & Parody | 4 Comments

Vwar deer or vor dire? A guest post from the Public Defender of Harris Co., Texas

Alex Bunin founded the first and only public defender’s office in Houston, Texas, replacing the traditional folk custom of appointment-by-donation-to-the-judge’s-campaign. Asked in an interview with Simple Justice how he was received by the Jumbo State’s legal establishment, Alex said, “The biggest obstacle was the imaginary fear that all criminal defense would be turned over to a giant incompetent socialist machine. I guess we are a socialist machine, but small and competent.” After only six years in existence, the Public Defender’s Office has outstripped the private and retained bar in the number of trials, acquittals, dismissals and non-custodial sentences for the indigent accused.   

A transplanted New Yorker,  Alex rides his bicycle to work whenever Houston’s streets are above water.  

texas-judgeThink of this as a public service announcement for those New York attorneys wishing to understand Texas and vice-versa. First, it is important to know that each state’s courts employ confusing names. Both have supreme courts, but neither is necessarily supreme. The dictionary defines “supreme” as “an authority of office superior to all others.” However, this definition does not apply in either state.

In New York, the Supreme Court is a trial court. In Texas, the Supreme Court is co-equal with another body called the Court of Criminal Appeals. A second dictionary definition of supreme is “a rich cream sauce.” That explanation may be more appropriate. In neither state is the Supreme Court superior to all others, but either version can separate and burn when there is too much heat.

Both states have intermediate courts of appeal. New York calls them departments. In Texas, departments are typically retail stores like Dillard’s or Palais Royal. Texas courts of appeal are called just that, but the clarity ends there. In New York, its highest authority is the Court of Appeals, or what English majors would call its supreme court.

Aside from the exquisite naming differences, lawyers in the two states simply speak differently. New York attorneys are “on trial” the same as they are “on line” waiting for a hero sandwich. Texans are “in trial” as they are “in line” waiting for a po’boy sandwich. In the Empire State, as in most places, the legal phrase for jury selection is pronounced “vwar deer.” In Texas is “vore dire.” Texans love to pronounce names in the least intuitive manner possible. If you are not from Texas, try saying “Bexar”, “Humble”, or “Refugio.” No, you got them all wrong.

New Yorkers also create their own difficult pronunciations, sometimes by mistake. Houston Street is in lower Manhattan (pronounced “How-sten”). It is a misspelling, meant to honor William Houstoun, a Georgia delegate to the Constitutional Convention. It has no relation to the city where I live, Houston (pronounced “Hyoo-sten”). My city is named after Sam Houston, the governor of two states (Tennessee and Texas), a U.S. Senator (Texas) and a President (Republic of Texas). He was also the major general who led his troops to victory in the final battle for Texas independence from Mexico.

If you are standing anywhere in New York State and someone refers to “the City”, you know they are  referring to one place — New York City. Residents of NYC think the rest of the state is a somewhat inferior civilization. Texans feel the same about the entire United States, including NYC. Texas was once an independent country and, after several beers, some citizens occasionally ponder secession.

Texans prize firearms above most possessions. With the proper permit you can even bring your weapon into the State Capitol in case you need to draw down on some subversive pol suggesting renaming the State Bird. You can “open carry” your guns at our finest institutions of higher learning. You cannot, however, purchase beer before noon on Sunday because all heck would break loose.

Having spent about half my life in each state, I consider myself a neutral observer. New York has improved to the point that restaurants no longer pass off marinara sauce as salsa, nor meat fried over charcoal as barbeque. Houston is now the most ethnically diverse city in the United States. Both are border states and neither needs, nor wants, a wall. If you live in one, come visit the other. I recommend it.

Alex Bunin, Harris County Public Defender



Posted in Criminal law, Humor, Law, Satirical cartoons | Tagged , | 2 Comments