Being fair to Fairstein

  

Last week the Mystery Writers of America proclaimed Linda Fairstein the recipient of their 2019 Grand Master Award. Two days later, the MWA took it back after another mystery writer tweeted that Fairstein was “almost singlehandedly responsible for the wrongful incarceration of the Central Park Five.”

“Almost singlehandedly responsible”? Apart from being a ridiculous exaggeration, that has nothing to do with Fairstein’s status as a writer of crime novels. The Grand Master award, according to the MWA, “represents the pinnacle of achievement in mystery writing and was established to acknowledge important contributions to this genre, as well as for a body of work that is both significant and of consistent high quality.”

In other words, it’s a recognition, by the leading organization of crime fiction writers and readers, of excellence in that genre. Not the Nobel Literature Prize which, in theory at least, demands political saintliness from its recipients.

Fairstein has published 20 murder mysteries whose hero is a female prosecutor named Alex Cooper; and three mysteries for children, featuring a girl sleuth named Devlin Quick. According to Fairstein’s publisher, her books are international bestsellers and have been translated into a dozen languages. In withdrawing the award “after profound reflection,” the MWA doesn’t dispute this, let alone claim that Fairstein’s fiction is insignificant or of low quality.  Instead, it vaguely cites “the controversy in which she has been involved.”

That doesn’t look like profound reflection. Looks more like a school of guppies swimming determinedly in one direction and then, at the smallest disturbance, turning around and swimming with equal determination in the opposite direction.

Linda Fairstein was Chief of the Manhattan District Attorney’s Sex Crimes Bureau in 1989 when a woman jogger was found raped and left for dead in Central Park. Nine other people were attacked in the same area of the park that evening by a group of about 30 teenage boys. The police caught two of the teenagers in the park, who named three others. They became the Central Park Five.

Fairstein participated in and approved of interrogation tactics that psychologists and defense attorneys have argued for years are unconstitutionally coercive and create the risk of a false confession. The suspects were taken to the crime scene (thereby feeding them information), falsely told that their fingerprints were found on the jogger’s underwear, and assured that they could go home if they confessed.

But neither the trial nor the appellate courts found the resulting confessions involuntary.  Indeed, the police still use these tactics and courts unquestioningly uphold them. The only dissenter was the late Judge Vito Titone of the NY Court of Appeals who argued that 15-year old Yusuf Salaam’s confession should have been suppressed because Fairstein and Detective Taglioni deliberately deprived him of access to his family in order to obtain a confession.

After the Five were convicted and served years in prison, they were exonerated after the real perpetrator came forward with a confession that was not only voluntary but corroborated by DNA. Yet, Fairstein continues to insist that the full record “will confirm the original verdict.”

All that is very bad. And if Fairstein, who left the DA’s Office in 2002, were being appointed to the bench or running for District Attorney, we’d certainly be out there chanting, “Hey, hey, ho, ho, coercive interrogation tactics have got to go.”

But when the MWA adjudged Fairstein’s fiction to be worthy of their award, it was absurd to withdraw it based on disapproval of the author herself. As absurd as blacklisting actors and directors because they might support Communism. Or radio stations’ refusing to play the recordings of great conductors like James Levine and Charles Dutoit because they’ve been accused of sexual misconduct. Or the National Gallery’s canceling a retrospective of the painter Chuck Close because he was allegedly fresh to his models.

As an appellate squawk, we’re naturally annoyed that most crime fiction glorifies prosecutors and propounds humbug forensics (“Dr. Wizard examined the bullet in the corpse and concluded that it could only have come from Big Dog’s gun”). But the remedy to annoying speech is more speech. There’s Rumpole of the Bailey. And of course, Appellate Squawk’s Murder Mystery.

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The solution to courtroom delays: hockey pucks

In a move to defend against school shootings, a Michigan college is distributing hockey pucks to its faculty. Hockey pucks, or biscuits, as they’re known to the cognoscenti, are “easy to carry, heavy and tend to cause a distraction when thrown,” explained Oakland University’s Chief of Police. We didn’t make this up.

Meanwhile, hundreds of Brooklynites have to stand in line for hours waiting to get into the courthouse because the guards insist that it’s not safe to let the public in unless 350 more guards are hired.

“We don’t want to see anybody, a judge, an attorney, or any other staff, or worse, a juror or any other member of the public leaving in an ambulance or, god forbid, a body bag!” a court official solemnly intoned.

Horsefeathers.

We’re not going to diss courthouse guards wholesale, since we know at least one who’s friendly and helpful and even accurately explained Batson v. Kentucky to an inquiring member of the public. But we seldom enter a courtroom without thinking of Melville’s creepy short story Benito Cereno where, (spoiler alert!) it turns out that the apparently suave captain of the ship is actually the prisoner of his murderous servant. Similarly, the eminent-looking trial judge is surrounded by black-leather-gloved, bulletproof-vested, armed heavies who tell him-or-her what to do. Can you have your client un-handcuffed and given a chair for his SORA hearing? Not if the guards don’t feel like it. Can you have your client, who’s sitting in the pens two flights down, brought up to the courtroom in less that 3 hours? Ditto.

So now, the guards are not only slowing down security clearance in the courthouse lobby while the public freezes outside, they’ve instructed the judges to close their courtrooms “without proper staffing.” “Proper staffing,” needless to say, as determined by the guards. And all but a handful of judges have meekly complied. Quis custodiet ipsos custodes?

Let’s take a tip from the Michiganders.

Scene: The Judicial Training Institute

Chief Judge:  Now listen up, everybody. Due to the shortage of court officers, you’re all in danger of being taken out in a body bag. Therefore, each of you has been issued a hockey puck because they’re easy to carry, heavy, and tend to cause a distraction when thrown. Ow!

Traffic Court Judge: Sorry, Chief, just testing.

Chief Judge: I sentence you to 200 hours of target practice.

Appellate Judge: Chief, surely you’re aware that we appellate judges have such extraordinarily crushing, overwhelming caseloads, one puck isn’t nearly enough.

Chief Judge:  Of course. At oral argument, the court officers will periodically come out of that little door in the back to supply you with stacks of hockey pucks.

Appellate Judge: You mean, along with the stacks of briefs?

Chief Judge: No, instead of the briefs. Hockey pucks are much more efficient.

The Appellate Court’s dream.

 

 

 

 

Posted in Judges, Law & Parody, Satirical cartoons | 1 Comment

Are your politics acceptable to your cabdriver?

Our fictitious hero Rumpole of the Bailey liked to say that a public defender is “a taxi plying for hire,” bluntly explaining to his clients that he was “duty bound to take on any client, however repellent.”

But his taxi metaphor has gone the way of the passenger pigeon, now that cabdrivers are being urged to screen potential riders for political acceptability.

“Cabdrivers Refuse To Pick Up Racists After Philadelphia Rally With Proud Boys!” asserts HuffPost with satisfaction. It shows cellphone videos of three cabs driving away empty from a rally of about 30 conservatives called “We, the People.” Which, according to the Huff, included “at least two” Proud Boys.

The videos also show that the cabs are surrounded by cops and some of the 300 counter-demonstrators who turned up at the rally brandishing signs saying things like, “Nazi scum not welcome.”  But when the Nazi scum obligingly tried to leave, the righteous urged the cabdrivers to refuse to take them. It’s unclear whether the cabbies complied out of political conviction or sensibly reasoned that it was better to lose a fare than risk having a bunch of indignants banging on their windshields.

Still, the idea might catch on.

Scene: Rainy Saturday night after a Knicks game.

Drenched couple: Taxi! Taxi! Oh, thank heavens, a cab!

Cabdriver: Not so fast. What do you think about climate change?

Drenched couple: Huh?

Cabdriver: I’m talking about the statistical distribution of weather patterns over an extended period of time.

Drenched couple: Yes, yes, we support zero carbon emissions —

Cabdriver: Ha! And putting me out of a job! (Drives off).

Drenched woman: I guess we’d better stay off politics if we ever want to get home.

Drenched man: Taxi! Taxi! We’re completely neutral, non-alligned persons.

Cabdriver: Oh, yeah? What are your views on abortion?

Drenched man: It’s the woman’s right to choose.

Drenched woman: It’s the murder of a human being.

Cabdriver: Nice try, but you can’t fool me. What’s your solution to the Middle East situation? Falling interest rates? Brexit? Hey, where’re you going, I’m not finished!

Drenched couple: Never mind, we’ll walk the 48 blocks to the subway. At least we don’t have to sign a loyalty oath to buy a Metro Card.

Cabdriver: Heh, heh.  Wait til they see the new Metro Card machines.

Posted in Civil Liberties, Satire and parody | 1 Comment

How to keep your employees safe and happy: give them guns for Christmas

A Wisconsin glassware company has discovered the perfect Christmas gift for its employees: a gift certificate for a gun.

“For us, now, we have an entire armed staff,” co-owner Ben Wolfgram told the Appleton Post-Crescent. “I think that’s pretty good.”

The company’s name is BenShot and this is the kind of glassware they sell:

   

“We are a small, close-knit team at BenShot,” said Wolfgram. “I want to make sure all of employees are safe and happy – a handgun was the perfect gift.”

It turned out that some employees “already had enough handguns.” They were allowed to use their gift cards for rifles instead.

Gee, we wish our boss would do that. An entire armed staff might solve a lot of problems.

You say your BenShot glass leaks?

Posted in Law & Parody | 3 Comments

Everything you’ve ever wanted to say to a judge but had sense enough not to.

Don’t pretend you’ve never been tempted to respond like this when you get a bad decision from a court:

I find it hard to believe that after the Court had the motion for 5 months to decide, that it could make up facts to support a finding. . . . But then…if you do not read plaintiff’s papers maybe it is possible.

Close your eyes and wish for facts to grant a defendant’s summary judgment.

* **

WHERE DID THE COURT GET THIS? THIS IS STATED NO WHERE IN [Plaintiff’s expert’s] REPORT. LA LA LAND, I COULD NOT MAKE THIS UP IF I TRIED.

***

THIS IS LA LA LAND ON STEROIDS…I CAN NOT COMPREHEND THE #%*$^% THAT IS THIS DECISION… This is so bizzaro land that it is hard to type. What is even more pathetic is the case I cited (citation omitted) has been ignored. 

That’s what it took for attorney Gino Giorgini to get the judge to read his papers, stop making up facts and reverse the summary judgment order.

In other words, it worked.

Two years later, Mr. Giorgini again expressed frustration with the court for not reading his papers:

This is outrageous!!!!!!! How dare the court disrespect my elderly client for the benefit of some political contributors. I guess my reply/sur-reply was not read. I pointed this out in my first paragraphs. Let me see…perjury…no problem…fraud…no problem….what a joke. I guess if you hire the right politically active lawyers like [opposing counsel] anything is excusable with this court. . . . I spent countless hours proving plaintiff’s fraud; putting forth case law so on point that there is no issue of defendants prevailing and the Court doesn’t read my papers. Do you know how angering that is? 

We know just how he feels!!!!!!!!!!!!

Unfortunately, the Appellate Division decided that Mr. Giorgini’s flaming prose constituted “undignified or discourteous conduct which is degrading to a tribunal,” and suspended him from practicing law for three months.

They oughta lighten the #%*$#^% up.

Posted in Law & Parody, Satirical cartoons | Leave a comment

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