“Pray for Trump”

A friend spotted this bumper sticker: “Pray for Trump. Psalm 109:8.” Being an alert attorney and law professor, she naturally checked the cite.

The verse is: “Let his days be few and another take his office.”

Squawk gets kicked off jury duty, is astonished.

A few years ago we briefed an appeal from probably the worst trial since Sacco and Vanzetti. When Judge “This-is-MY-courtroom” Napaloni wasn’t screaming at the defendant and his lawyer, he was encouraging the prosecutor to put in outrageously prejudicial-not-remotely-probative evidence.  All to keep the jury from being “misled” into returning the wrong verdict.

The last straw was when a police witness started reading to the jury a list of guns confiscated in an unrelated case, which just happened to include the same kind of guns (but not the same ones) as in the defendant’s case. “That wasn’t my shit!” protested our young man. “That wasn’t my house!” “Quiet!” roared His Honor. “If you don’t like it, why don’t you get up and testify?”

The judge kicked him out of the courtroom for the rest of the trial, blowing off the defense lawyer’s pleas that it wouldn’t happen again and that the Constitution frowns on trials in absentia. But after the trial was over, he graciously allowed the defendant back into the courtroom to hear his sentence.

When asked if he had anything to say, the soon-to-be-our-client observed that the judge and the prosecutor had been sucking each other off for the whole trial. An accurate assessment in our opinion, although we wouldn’t have put it that way. Judge Napaloni, with a merry twinkle in his eye, sentenced him to 107 years.

So imagine our horror last week when we were summoned for jury duty and found ourselves in the bailiwick of none other than Judge Napaloni. Even more shocking was that instead of the usual strapping presumed-innocent at the defense table was a frail old man.  Murder with a justification defense, they said.

“Does anyone recognize me?” asked the judge of the 50 potential jurors in the courtroom.  We raised our hand. We recognized him from his picture. “Is it still up in the Post Office?” he chortled and went on to something else. Giving us no chance to tell everybody that not too long ago the NY Post featured a huge photo of him on the bench surreptitiously vaping behind his beard.

OMG, he was just a great big lovable teddy bear, cracking jokes, some of them funny, and very sincere indeed about the importance of jury duty. This is the only country in the world, he explained, where a criminal – er- an accused – is entitled to the judgment of 12 of his peers. And it’s very, very important not to pre-judge cops, but see them as individuals who put on their pants one leg at a time.

Back at the office, our colleagues opined with much hilarity, “You’ll never get picked for a jury!” But dammit, jury duty is important! We’ve seen how the People routinely reduce the charges for the very purpose of depriving the defendant of his right to a jury. (You’re not entitled to a jury for “petty” misdemeanors).  And how, when no sensible jury would have convicted, the judge who tries the case is afraid to acquit for fear of getting his picture in the NY Post with a caption like JUDGE FREES PERV CHILD MURDERER. Even if it’s only a subway fare beat.

And why assume we can’t be fair and impartial just because we’re a defense attorney?  Don’t we put on our pants one leg at a time, just like any other juror? Well, yeah, except. . . we know Judge Napaloni’s penchant for handing out 100+ year sentences. Should we say something when he asks if we promise not to consider the sentence? Of course that would get us instantly sent back to Central Jury and put onto some eye-glazing civil case that goes on for three months before they settle. But could registering our disapproval at least make him think twice about handing a century to that little old man if he’s convicted? We thought about it all weekend.

Back in court on Monday morning, there were only about 30 potential jurors left. We recognized our deli man from the Flatbush Food Co-op. Good to see a familiar face, although our only exchanges up to then had been along the lines of, “Do you want collards or kale?”

It was our turn to be individually questioned.  We’d each been given  a questionnaire to which we had to answer aloud, “Number two, yes, number three, no,” and so on. But if your answer to “Are you employed?” is yes, you have to say what you do. So we did.

Judge Napaloni, fixing us with a terrible eye, bellowed, “You’re not going to second-guess my rulings, are you?” “Absolutely not, Your Honor,” we bravely squeaked.

What happened to our resolve to explain that we should be seen as an individual, fair and impartial, putting on our pants one leg at a time, etc.? Alas, neither the prosecutor nor the defense attorney so much as looked at us while questioning the other jurors. It was like there was a bee over our head.

So we didn’t get picked. But maybe it was because we answered “Flatbush Food Co-op” when asked what organizations we belonged to.  The lawyers so obviously liked the deli man, it was no contest between him and us.  Poor guy, he’ll be in court for a good three weeks. But eventually we’ll get to hear about the verdict over the collards and kale.

Supreme Court to Patent Office: Don’t FUCT with the 1st Amendment

  Wanna look cool and edgy? Drive over to your local mall and buy a FUCT® t-shirt! Your friends hanging out at Shake Shack will take their noses out of their I-phones and exclaim, “Look at that viewpoint of non-compliance with conventional social mores! What a devastating critique of Capitalism, Government, Religion and Pop Culture!”

That’s the idea, anyway, according to FUCT, a pioneer in the billion-dollar “urban streetwear” industry.

But when knockoffs started eating into its profits, FUCT realized that maybe the Government has its uses after all. Registering the FUCT trademark would give it a clear claim of ownership, making it easier to go after the infringers.

But the stodgy old U.S. Patent and Trademark Office (PTO) said it violated their prohibition against  registering trademarks that are “immoral” or “scandalous.” “A total vulgar,” harrumphed the PTO.  “Has decidedly negative sexual connotations.” Communicates “extreme misogyny, nihilism and violence.” As everybody knows, FUCT is “the equivalent of the past participle of a well-known word of profanity.”

This from a government agency which, according to the FUCT brief in the resulting Supreme Court case Iancu v. Brunetti, has registered trademarks such as FCUK, PHUC, MILF (maybe the PTO didn’t know what it stands for), ANAL FANTASY COLLECTION, EDIBLE CROTCHLESS GUMMY PANTIES, WHORES FROM HELL, SOCIAL NETWORKING FOR YOUR PENIS and WONDROUS VULVA PUPPET.

The satirist P.J. O’Rourke and former ACLU head Nadine Strossen co-wrote an amicus brief about how “Vulgar Language Is Necessary for Full and Authentic Expression.” It’s just a hoary old stereotype, they explain, that people whose every other word is a past participle of a profanity are stupid. “In fact, studies have shown that using profanity is positively correlated with both intellect and honesty.”  Fcuk, yeah!

Well, not even the Supreme Court wants to be an old stodge. They had no trouble deciding that the PTO’s “immoral or scandalous” prohibition is viewpoint-based and therefore violates the First Amendment.

Still, a few of the justices didn’t quite buy that swearing is a mark of authenticity and intellect. The past participle at issue “signifies nothing except emotion and a severely limited vocabulary,” sniffed Justice Alito.

Justice Breyer, showing off, informs us that swear words “originate in a different part of our brains,” and “excite the lower-brain circuitry responsible for emotion, resulting in electrical impulses that can be measured in the skin.” Therefore, he reasons, swear words in trademarks “threaten to distract consumers and disrupt commerce. And they may lead to the creation of public spaces that many will find repellent, perhaps on occasion creating the risk of verbal altercations or even physical confrontations.”

Not to be outdone in dire predictions, Justice Sotomayor foresees that the result of the decision will be a “rush to register trademarks” “containing the most vulgar, profane, or obscene words and images imaginable.”

Repellent public space

Squawk goes to Washington

We recently took a trip to our Nation’s capital, staying at a pleasant Quaker hostel (“Does thee have a reservation?”) a stone’s throw from the Supreme Court.

The first thing we noticed on the D.C. Mall was the fleets of people zipping around on rented scooters.  Scooters on the sidewalk are, of course, a terrible blight and a menace to public safety. Naturally, we wanted one too.

But renting a scooter required a working cell phone and ours was out of commission from falling into the Reflecting Pool.

The way our phone got into the Reflecting Pool was that it was in our backpack when, as we were taking a nighttime stroll towards the Washington Monument, we stepped onto what looked like a dark patch of pavement and found ourselves waist deep in dank water. Luckily there was nobody around although we thought we heard snickering from the surveillance cameras. Also luckily, it was 98 degrees outside, so we were dry by the time we got back to the hostel and nobody asked, “What happened to thou?”

But we never stop thinking about our cases, which at the moment involve several appeals from subway masher convictions. So we were fascinated to see how the D.C. Metro deals with the issue. Unlike the NYC subways that indulge in unnecessary moralizing (“A crowded train is no excuse for unlawful sexual conduct”), D.C. has STOP: Sidetrack, Tell, Observe and Postpone.

Under “Sidetrack,” riders are urged to distract harassers by asking them, “Do you know how to get to L’Enfant Plaza?” If you’re already at L’Enfant Plaza, you should say, “I haven’t seen you in forever! Want to come sit with me?”

The “Postpone” method focuses on the victim. You should ask them, “Are you okay? OR Would you like me to ride with you to the next stop?'”

Well, that’s one way to meet people.

And why limit this friendly approach only to subway mashers? Next time you see a robbery, go up to the robber and ask how to get to L’Enfant Plaza. And if he answers, “What the #&*^@ are you talking about?” add,  “I haven’t seen you in forever! Want to come sit with me?”

 

“Justice in every borough”

The other day we were glumly printing out a closing letter to a client: “Court of Appeals denied leave . . . end of the line. . .  wishing you the best for the future,” when we noticed something new on the company stationery. Marching across the page in large black letters was: “JUSTICE IN EVERY BOROUGH!”

How tactless is that? The last time our client heard about “justice” was in the prosecutor’s summation.  Or worse, when the “victim” got up at sentencing and demanded “justice.”  And since the judge obligingly handed out a generous dose of it, our guy’s not in jail, he’s in a “justice hub.”

Here’s who else has “Justice” in their motto:

Manhattan DA: “Moving Justice Forward” (like testing all those old rape kits so they can indict your client’s DNA).

Bronx DA: “Pursuing Justice with Integrity” (for a change).

Brooklyn DA: “Justice 2020” (next year).

Staten Island DA: “To Pursue Justice for Victims” (unless the accused is a cop).

Queens DA: still trying to figure it out.

We think there’s something screwy when a public defender has a motto indistinguishable from a DA’s office. If we’re going to have a slogan, it should say what we do! Here are some suggestions:

THE RIGHT TO BE PROSECUTED WITH A FACIALLY SUFFICIENT, JURISDICTIONALLY VALID ACCUSATORY INSTRUMENT IN EVERY BOROUGH!

THE RIGHT TO HAVE THE  TRIAL JUDGE READ THE JURY NOTES TO THE LAWYERS IN EVERY BOROUGH!

CHALLENGING THE VOLUNTARINESS OF APPEAL WAIVERS IN EVERY BOROUGH!

SADLY INFORMING CLIENTS THAT WE’VE LOST THEIR APPEAL AND IT’S NOT WORTH DOING A HABEAS BECAUSE THEIR CASE PRESENTS NO ISSUES CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW AS DETERMINED BY THE SUPREME COURT OF THE UNITED STATES IN EVERY BOROUGH!

Or how about this:

PROUDLY GETTING IN  THE WAY OF JUSTICE!

Big Brother remembers your face

As someone known for striking up earnest and meaningful conversations with people we’ve mistaken for someone else, we loved the idea of Facial Recognition Technology.

You too can learn to love FRT! For instance, assuming you don’t mind forking out $200 for a cat bowl, FRT will make sure it’s your cat eating out of it, and not the freeloader next door.

And thanks to FRT, conservationists can now identify individual giant pandas in. . . well, in China. Land of 170 million surveillance cameras where even human faces can be instantaneously matched to a behemoth database.

An efficient way of catching criminals, they say, except that “criminal” can mean someone who uses more than 2 feet of toilet paper in a public bathroom. The problem was solved by installing FRT:

(NYC avoids the problem entirely by having no public bathrooms, let alone toilet paper).

Thanks to FRT, residents of China not only have to show their faces to get on the subway, use an ATM or buy from a 7-11, they have to SMILE while doing it.

          

It can’t happen here, right? We have RIGHTS! Well, here’s how the NYPD uses FRT:

Say the police have a surveillance photo, but it’s too distorted to identify. Mouth open? No problem. Simply do a Google search for a photo of a closed mouth and paste it in:

Another NYPD technique is “creating a virtual probe,” meaning to combine two photos and look for a “match” to the resulting face.

Have you seen these people?

     

What me worry?

Prison Sex Offender Treatment vs. The Fifth

“Inquisition” by Goya

“Confess and be saved” and its corollary, “Refuse to confess and be damned” have been the bedrock of the sinner rehabilitation industry, from the Inquisition to prison sex offender  “treatment” programs.  If the treatee refuses to confess to uncharged, unknown, or possibly imaginary crimes, he faces a longer sentence, denial of parole and/or other unpleasant consequences. And if he does confess, he risks prosecution, civil commitment and/or a higher SORA classification.

Prison sex offender treatment is, as you would expect, highly scientific, based on the best Nurse Ratched group therapy methodology.  A recent Seventh Circuit decision describes a typical treatment program:

Indiana requires all inmates convicted of a sex offense to complete the INSOMM program before release. . . .

During Phase 1, which focuses on “Consent and Assessment,” participants must fill out a Sex Offender Questionnaire that asks them to identify which illegal sexual acts (for instance, rape, child molestation, or prostitution) they committed and how often.

Based on their offense history, participants are sorted into one of three risk groups for Phase 2, “Risk Based Sex Offender Treatment,” which consists of group therapy sessions led by counselors. . . .  The higher-risk groups must complete more hours of therapy. In preparation for the therapy sessions, participants must fill out workbooks that require them to describe in detail all past acts of sexual violence and abuse, regardless of whether they were ever charged for those offenses. . . .

As INSOMM stresses to its participants throughout the program, they enjoy neither immunity nor confidentiality for any of the disclosures they make at any stage. Moreover, participation is an all-or-nothing affair: inmates may not opt out of any part of the program, and they are required to respond fully to all questions asked. A counselor who suspects that a participant has been either deceptive or less than forthcoming has the discretion to order polygraph testing. Such an order triggers a requirement for the participant to fill out a detailed Polygraph Sex History Questionnaire. A participant is excused from admitting responsibility for an offense only if the polygraph examination indicates no deception and the counselors agree that the participant is being truthful.

 Failure to participate satisfactorily in INSOMM is costly. It is treated as a Class A or Major Conduct disciplinary violation. That is the same class assigned to rioting, escape, rape, or assault on prison staff.

The particular Class A violation at issue in our case—Code 116, “Refusing a Mandatory Program”—applies to a much broader range of conduct than a flat-out refusal to participate. Inmates who refuse a polygraph examination, deny parts of their offenses, give answers that are deemed to be incomplete or dishonest, or otherwise fail to “adhere to treatment expectations” also qualify for a Code 116 violation. The INSOMM counselors make the final decision whether an inmate’s conduct merits disciplinary action.

For a first Code 116 offense, inmates are penalized (among other ways) by placement in a credit class that denies them the opportunity to accrue good-time credits. These are credits to which they would otherwise be entitled by statute. . . .

If an inmate persists in whatever conduct gave rise to the disciplinary action—such as by refusing to admit a particular crime or answer a particular question—he is regarded as committing a continuing Code 116 violation punishable by revocation of 180 days of already-acquired good-time credits for every 60 days during which the noncompliance continues. While the violation is ongoing, the inmate is barred from earning new good time credits. Some class members have lost all of their accrued good-time credits as a result of this system.

The decision describes the questions the inmates have to answer:

First, in the disclosure assignments that make up part of the core-group workbooks, the program directs the participant to be “detailed and specific” about each victim he has harmed, using a separate sheet for each one.

In the Medium Risk Core Group Workbook, the questions that the participant must answer for each past act of sexual violence or abuse include the participant’s age and the victim’s age at the time of the offense; the first name of the victim; the participant’s relationship to the victim; “what parts of [the participant’s] body” touched “what parts of [the victim’s] body”; “how many times [the participant] offended the victim and over what period of time”; “where and when” the abuse occurred; how the victim was selected and groomed; and the types of force used to ensure the victim’s compliance.

The High Risk Core Group Workbook includes these questions and more: it also asks the participant to describe “in detail the set-up of the sexual abuse of each victim”; patterns among his victims, such as their age, appearance, and race; “when and how” the abuse started with each victim; and “in what ways [the participant’s] … sexual offending behavior change[d] over time.”

If counselors find any of the responses to those questions to be inaccurate or incomplete—a determination they have unfettered discretion to make—they can refer the participant for a polygraph examination.

Such a referral starts with the obligation to fill out yet another, equally intrusive, questionnaire. The polygraph questionnaire asks highly specific questions, such as: “How many children have you physically forced into sexual activities? Describe what you did.”; “How many times have you had sexual contact with someone who is handicapped? Describe.”; and “How many times have you made child pornography (taken pictures, video-tapes, films, etc.) of nude children or children engaged in sex acts? Describe.”

The participant must also “write the number of times” that he has masturbated in each of 31 different public places, indicate the most recent time he exposed himself to someone, and describe times when he had sexual contact with someone who was drunk or under the influence of drugs. For each victim, the participant must indicate whether he engaged in any one of 27 specific actions and how many times, including whether he “put [his] penis inside [the victim’s] vagina (even a little bit),” “threatened [the] victim with harm,” or “masturbated in front of [the] victim.”  Lacy v Butts (7th Cir. 2019).

Doesn’t pass the constitutional mustard, said the Seventh Circuit. It’s self-incriminating to admit that you put your penis into a [non-consenting] vagina (even a little bit).  Ditto masturbating in any of 31 public places. And if you lose good time credits, i.e., have to serve more time, unless you admit to it, that’s compelled. “The Fifth Amendment draws one sharp line in the sand: no person shall be compelled in any criminal case to be a witness against himself.”

No doubt the Hoosiers will find a way around it.

Nurse Ratched’s treatment program

Easter Bunny convicted of kidnapping, trafficking

Defendant E. Bunny appeals her conviction of kidnapping of minors, trafficking and disorderly conduct. For the reasons stated below, we affirm.

Contrary to defendant’s laughable argument, her arrest was entirely lawful. Police Officer Cluck credibly testified that based on his training and experience, a rabbit carrying a basket of colored eggs in an Easter-prone neighborhood provided reasonable suspicion that criminal activity was afoot.  The fact that the officer conceded on cross-examination that he had never arrested a hippopotamus carrying a basket of eggs does not support an inference of selective enforcement.

In any event, the level of suspicion was raised to guilty as hell when, in response to Officer Cluck’s lawful inquiry, “Where the f*%$#@ do you think you’re going with those eggs?” defendant admitted, “To an Easter Egg Hunt.”

Defendant contends that it is an unwarranted extension of the Penal Law to include unhatched eggs within the definition of  minors where, as here, they were purchased in a supermarket with their frozen and packaged mothers in the next aisle. We disagree.  The Legislature’s authority to make broad classifications is not diminished by the mere fact that some minors might not be eggs. Although we leave for another day the question of whether an egg over 18 years of age is a minor, it is undisputed that eggs and minors share the same vulnerabilities, such as underdeveloped brains. Therefore, as a matter of law, eggs are minors.

There is no merit to defendant’s argument that the People are obliged to show which came first, the chicken or the egg.  The People need only show that there is a rational relationship between the two. Whereas there is plainly no rational relationship between rabbits and eggs.

The dissent, always trying to show who’s the smartest person in the room, claims that the Easter Bunny is but another form of Santa Claus, and that if the latter is lawful, so is the former. The dissent overlooks the obvious distinction that Santa manufactures his own toys, while the Easter Bunny unlawfully asports unborn chickens and conceals them in places where they will not easily be found.

Affirmed.

Judge Thumper dissents in the following opinion:

The Majority, getting the facts all wrong as usual, ignores that defendant was originally arrested and charged with unauthorized possession of jelly beans. It was only after discovering that the arresting officer had eaten the evidence that the People changed their theory to kidnapping based on painted eggs recovered from defendant’s basket.

According to my erudite scholarly historical research on Wikipedia, the Easter Bunny has a long and venerable tradition. Originally a Druid god called the Œaster Porcupine, it gradually morphed into a child-friendly figure like Santa Claus. Indeed, the original Articles of Confederation contained a provision that adult rabbits carrying colored eggs at Easter would not be subject to tariffs. The Majority, applying an overly technical reading of the kidnapping statute, deserves to get coal in its stocking.

I dissent.

Is it legal to threaten to behead the Chief Clerk of the Court?

Have you ever had the Clerk of the Court reject a brief that you’ve labored over for months just because you signed in black ink instead of blue? Refuse to accept your brilliantly insightful case-of-first-impression masterpiece because you wrote “Printing Specifications Statement” instead of “Certificate of Compliance”? Send back your papers until you file a motion for permission to file a motion for permission to file a motion for permission to file a motion for permission to file a motion?

True, we never thought of threatening to behead the Honorable Chief Clerk. That would be wrong. But we had to snicker when an irate pro se plaintiff, after being repeatedly fined for frivolous litigation, phoned her and threatened to “chop off her head for not doing her job.” “I hope someone kicks the shit out of you and I wish cancer on your family,” he added.

The Clerk had the man arrested, put through the system and charged with aggravated harassment, a jailable crime defined as making threats over the phone with “no purpose of legitimate communication.”  With words that “by their utterance alone, inflict injury or tend naturally to evoke immediate violence.”

The case went to a judge who had one eye on the real world where, let’s face it, most people are aggravating; and the other eye on the First Amendment, protector of aggravating speakers. She sensibly threw out the case.  As “rude and inappropriate” as it was to “wish misfortune” on the Clerk, as she delicately put it, the phone call was clearly for the legitimate purpose of complaining about a public official’s not doing her job.

The judge cited another case where a woman, fed up with getting the runaround about her parking tickets, called up the village Parking Violations Bureau.  On getting an answering machine, she left a message telling the parking officials that she’d “have their job” and “You should all die of cancer and your children too.” The Court of Appeals properly concluded that complaining about government action on an answering machine set up to receive complaints is a legitimate purpose of communication, even if “crude and offensive.”

In deciding whether an utterance alone inflicts injury, contemporary mainstream society tends to agree that you can’t cause injury by wishing. So it’s not a true threat to hope your enemy will get cancer. As another NYC court held, “a threat to place a curse, hex, jinx, voodoo, root, evil eye, enchantment or other such spiritual, mystical or magical attack on another neither inflicts actual injury nor naturally invokes immediate violence.” In other words, putting a curse on somebody is constitutionally protected speech. See People v. Rigoletto.

Even less was the threat to chop off the Chief Clerk’s head a true threat, considering that ISIS has yet to invade Brooklyn.

In sum, the right to yell at bureaucrats is the bulwark of a free society. The Penal Law isn’t a book of etiquette.

What is ineffective assistance of appellate counsel?

Ye blind guides, which strain at a gnat and swallow a camel. — Matthew 23: 24.

In an unusual burst of candor, New York’s highest court recently confessed to what we’ve always suspected: if your appeal is a loser, it don’t amount to a hill of beans what your brief is like. People v. Alvarez (2019).

The issue was: does a badly written brief constitute ineffective assistance of appellate counsel, entitling Mr. Alvarez to a second shot? Fuggetaboutit, said the majority.  Granted, the brief “was somewhat terse, could have been better drafted, and is not a model to be emulated.” But how bad a brief could it be if the First Department understood it well enough to affirm the conviction? And where, in the same decision, the court affirmed the convictions of the two co-defendants, whose hot-dog appellate lawyers had raised the same issues?

So the majority decided that appellate counsel — a court-appointed sole practioner admitted to the Bar in 1958 and now appearing before the Great Court in the Sky — wasn’t ineffective “under our undemanding standard.” (Undemanding standard? We’ll remember that next time one of their nitpicking clerks calls up about some piece of paper we forgot to send).

But the two dissenting judges couldn’t resist scapegoating the lawyer for everything that’s wrong with the system, including that the appellant had been sentenced to 66 and 2/3 years, is desperately ill, and has 40 more years to go before he can even apply for parole.

The dissenters, one a former California white-shoe lawyer and the other a former law professor from New York City’s leading safety school, have no clue what it’s like to argue to the First Department.

Counsel “waited” over three years to file! scolds the professor.  The case was on the dismissal calendar, definitive proof of his moral laxity! Didn’t seek leave to the Court of Appeals! Didn’t write to the client! Didn’t cite cases, didn’t spell right, didn’t proofread, confuses “legal sufficiency” with “weight of the evidence,” incorrectly refers to the People as “plaintiff-appellee,” and — trigger warning for anyone traumatized by bad grammar — “uses the contraction it’s for the possessive.”  

The judge helpfully supplies a link to the offending brief to give “quick and easy perpetual access” so that “practionioners, educators and law students” can spit at it.  “To the organized bar,” she intones, “I ask: Is this an acceptable work product? Would any one of your members submit this on behalf of a client?”

Okay, okay, the lawyer should have put the brief through spellcheck and dropped a line to the client now and then. As for “legal sufficiency” versus “weight of the evidence,” we have yet to see a People’s brief that understands the difference. How come they never get rapped on the knuckles?

As for appellate counsel’s “waiting” three years: the only lawyers who can say they’ve never had an appeal where three years elapsed between being appointed and filing the brief are either 1) lying; 2) working for some little boutique outfit; or 3) living someplace where there hasn’t been a trial since Lizzie Borden. Hell, in an appeal from a New York City trial, it can take three years just to get the complete record.

Same with having a case on the dismissal calendar which, despite its scary name, only means you have to move for an extension of time. It no more makes the lawyer incompetent than having an overdue library book makes you a thief.

The bottom line is that none of counsel’s shortcomings made any difference to the result.  You can be sure that, unlike Mr. Alvarez’s lawyer, the co-defendants’ lawyers correctly wrote “its” for the possessive and didn’t make typos like “there was no proof that treats to the witnesses came from any of the defendants.”  And the record shows that after losing in the First Department, they dutifully sought leave in the Court of Appeals to get that piece of paper saying “denied.”

Oh, but the New York test for ineffective assistance is whether there was “meaningful representation,” says Judge Jenny. Not like the big bad Federal standard that requires a reasonable probability that, but for counsel’s errors, there would have been a better outcome. QED, we can find appellate counsel ineffective for errors but for which there’s not a snowball’s chance in hell the outcome would have been better.

Judge California, taking the angle compassionate, goes after the lawyer for failing to urge the First Department to reduce the sentence in the interest of justice. Did we mention that Mr. Alvarez  was convicted of being an enforcer for a drug gang and shooting a 14-year old dead and permanently maiming a 15-year old?

“Because I have great faith in the commitment of the Justices of our Appellate Division to the interests of justice,” comfortably opines the judge, “I do not conclude that a request by Mr. Alvarez to reduce the minimum term of his sentence would have been doomed to failure.”

It would be nice if he’d cited even one First Department decision reducing a sentence in the interest of justice in any remotely comparable case. At best, the court sometimes shaves off a year or two in a drug possession case, often over an indignant dissent. But then, “faith” according to believers, means “we believe because it’s absurd.”

The judge’s clinching argument for finding the lawyer ineffective is: “Were Mr. Alvarez your son, would you have instructed his lawyer not to ask the Appellate Division to exercise its interest of justice jurisdiction to reduce the sentence?”

Our readers (if any) will be astonished to hear that we have a personal axe to grind.  Of course, it’s barbaric to sentence anybody to more years than he can possibly live. Nobody has the right to predict that a person will never be rehabilitated.

But all this judicial grandstanding and a dime gets you a cup of coffee. We had a client similar to Mr. Alvarez, the difference being that there was an issue that no reasonable jurist would fail to recognize as reversible constitutional error.  And although we didn’t apply the California method of choosing issues by asking “what would we do if he were our son?” we did argue for reduction of his 100-year sentence.

Judge Wilson’s faith notwithstanding, the Appellate Division weasled out of the constitutional violation (“under the [unspecified] circumstances we find no error”) and of course didn’t reduce the sentence. A dead body, three seriously injured bystanders and some earthy remarks at sentencing? No way, unless the judges wanted their photos on the front page of the NY Post.

We sought leave in the Court of Appeals. Denied. No, no, there’s some mistake, we thought. Our guy was deprived of one of the few trial rights that the U.S. Supreme court uncompromisingly upholds. We tried again. Denied. By the same social justice warrior judge who wants law students to sneer in perpetuity at bad writing in a brief.

Straining at gnats and swallowing camels.

At the movies: Woman at War

The other day we went to see “Woman at War  at the local arthouse. Shazzam! Under the façade of  a respectable, middle-aged chorus director lurks Halla, a ninja eco-saboteur toppling electric pylons with a bow and arrow. Pursued across the treeless Icelandic highlands by an evil miniature drone, Halla shoots it with an arrow, hauls it down and smashes it to pieces with a rock. The audience is too hip to actually cheer, but you can feel the vibe.

She’s doing this to make Iceland unattractive to foreign heavy industry predators drooling over its unspoiled natural resources and aching to install their climate-changing junk. She climbs to the roof of a government building and flings out a thousand copies of her manifesto: “We are the last generation that can stop our war against the Earth.” The passers-by grab the papers and take selfies.

The government, who’s ready to sell off Iceland to Chinese investors, responds by portraying Halla as a terrorist threat to democracy. Not surprisingly, the movie is controversial in Iceland, according to the star Halladora Geirhardsdottir. “We all have an activist inside of us that isn’t active,” she says.

But despite the serious theme, it’s basically a comedy with touches of magic realism. A semi-imaginary trio playing tuba, drums and keyboard follows Halla on her quest, like the encouraging spirits in “The Magic Flute.” A hapless Cantinflas-like Spaniard on a bicycle keeps getting arrested by mistake. At one point Halla foils the heat-sensor surveillance plane by hiding under the corpse of a long-dead sheep. And thanks to Iceland’s comprehensive DNA database, the high-tech police analyze a drop of blood and triumphantly arrest Halla’s flakey yoga-teacher twin sister as the perp. (Identical twins have the same DNA).  “Namaste,” says the sister, bowing to the brutal-looking jail guard shoving her into a cell. “That means I salute your true inner self.”

Meanwhile, Halla is in the Ukraine adopting a war-traumatized orphan. Who says a movie can’t have everything?

Recommended.

 

 

Squawk is condemned

  A couple of years ago we published “Are you a cissy?” , a spoof of a compulsory training inflicted on us by the boss’s wife who announced a mandatory policy of quizzing our clients about gender issues. On first contact, no less.

No doubt it’s impolitic to make fun of silly decrees when they emanate from the boss’s wife. So we weren’t too surprised that the boss got mad as a wet hen when she saw our blog on the Company email.

But we were surprised at how wildly misread our blog was by people in our office who call themselves appellate lawyers. Granted, they were new hires, but surely to get the job they had to show some ability to read and comprehend prose.  The howls of uninformed indignation that went up! “Offensive!” “Harassment of a protected class of individuals!”  “Lack of respect and compassion!”  “An ugly slap/laugh in the face!” “Management (or the union?) should step in!” “A huge distraction from doing my job today!”

They were especially adept at the “I’m-only-thinking-of-our-clients” pieties: “Reflects back on my colleagues and I [sic], and our clients.” “Clients may read this thinking this is the view of, or even condoned by, [us], and judges may, as well.”

A couple of the most zealous tyros spent hours huddling with the Proskauer Biglaw enforcer and kept watch over the teapot to keep the tempest brewing. For the last two years.

On Friday, the Star Chamber handed down the judgment:

The Committee finds that the blog post violated the EEO Policy because it was reasonably understood by the complainants to denigrate persons based on characteristics protected under the Policy and the City Human Rights Law, namely, gender identity and expression. As several of the complainants observed, the blog post demonstrated not just a lack of respect and compassion for, but outright hostility toward trans and gender non- conforming clients. By making jokes at their expense, the blog post can reasonably be interpreted to denigrate the concept of gender identity and ridicule the notion that questions should be asked of clients designed to ascertain and respect their gender identities. These messages are reasonably interpreted as derogatory toward persons in a protected class. It should be noted that the City Human Rights Law expressly states that the deliberate mis- gendering of a client (such as by deliberately using an incorrect gender pronoun) is an act of discrimination subject to penalties under the law. 

In addition, the blog post denigrated clients by using stereotypes to paint our clients in a disparaging light. Particularly offensive was attributing the use of racially charged language such as “homie” and “call me Killer” to the pretend client. 

Although the blog post was evidently an attempt at humor, the EEO Policy explicitly states that inappropriate conduct or language meant as a joke can lead or contribute to harassment. 

You are required to attend the next training on Sexual Orientation, Gender Identity and Expression (SOGIE) that we will provide for the staff of the Criminal Appeals Bureau. This date will be provided to you as soon as it is scheduled. Failure to attend could be grounds for further discipline, including termination. 

Further, you are warned that the content of any future blog post you elect to share on our email system will be reviewed to ensure that is comports with both our internal policies and the law. Should your blog post violates [sic] our polices again, this will be grounds for further discipline, including termination. 

For anyone morbidly interested, here’s the whole thing: Complaints and judgment Appellate Squawk

“Mad-eyed from stating the obvious,” we explain for the last time that what we’re “denigrating” is not the downtrodden, but Wifey’s notion that we should pry into our clients’ sexuality when it has nothing to do with their case.  And yeah, most clients — in fact, most people –not having had the benefit of Sogie training, may well consider it offensive to suggest that they’re “gender non-conforming” unless they’ve chosen to say so.

Now that the boss has avenged her wife’s honor and promoted the toadies to supervisors, we’re inclined to let it drop. As George Bernard Shaw said, “Never wrestle with a pig. You just get yourself dirty and besides, the pig likes it.”

On the other hand. . . what’s so bad about mud wrestling? Maybe we’d like it too.

Justice Thomas decries Court’s latest “defendant-always-wins” rule

 Our company boss-persons recently decreed that the office’s 50-year archive of vintage appellate briefs must go. We sadly watched as giant blue bins were loaded to the brim with typewritten pre-computer gems of scholarship and advocacy, condemned to be recycled into toilet paper. But let’s face it, a losing brief is already trash. Imagine the size of the dumpsters at the Appellate Division!

But we keep writing briefs anyway. What for?

Well, maybe if there were no appeals, the criminal process would look like this:

Judge: Your client is obviously guilty or the police wouldn’t have arrested him. I order him to take a plea.

Defense counsel and prosecutor (combined into one person to conserve scarce judicial resources): Yes, Your Honor, consider it done.

Judge: And waive his right to appeal. I never want to see that shmo again.

Combined counsel: Yes, Judge.

Judge: The sentence is a prison term of 500 years to be followed by 100 years of post-release supervision.

Defendant: But I didn’t plead guilty! And I’m only charged with spitting on the sidewalk!

Judge: Ha, ha, what are you going to do about it?

But thanks to the noble army of appellate lawyers indignantly waving our tiny arms and threatening judges with a one in gazillion chance of getting reversed, plea proceedings look like this:

Judge: Youunderstandthatbypleadingguiltyyougiveupyourrighttogototrial andholdtheprosecutiontoitsburdenofproofcrossexaminethewitnesses callwitnessesonyourbehalfandrequireaunanimousverdictbyajuryoftwelve. Void where prohibited, some restrictions may apply. Do you understand?

Defendant: Um.

Judge: And you have to waive your right to appeal.

Defendant: Um.

Judge: Your bargain discount sentence is a prison term of a mere 100 years, to be followed by 100 years of post-release supervision.

Defendant: Huh?

Some nitpickers whine that the plea process is an assembly line. Like assembly lines are bad!  Even the crummiest factory has inspectors who weed out the three-armed sweaters and two-headed barbie dolls. So what’s wrong with having appellate lawyers inspect the guilty pleas and appeal waivers coming off the conveyor belt?

Plenty, fumes Justice Thomas, dissenting in Garza v. Idaho (2019), where Justice Sotomayor floats the radical notion that if a client asks his lawyer to file a notice of appeal, the lawyer should just do it.  A notice of appeal is nothing but a form that takes five minutes to fill out telling the court that the client wants to pursue an appeal. It doesn’t commit the lawyer to anything. But because Garza’s lawyer refused to file it, Garza lost all opportunity to appeal. Sotomayor found this to be ineffective assistance of counsel.

Another “defendant-always-wins rule!” cries Thomas.  Garza had no right to appeal! He pled guilty, signed an appeal waiver and that’s that!

But Sotomayor (former Bronx prosecutor) points out that some rights are nonwaivable, even with an appeal waiver.  And some plea proceedings, we’re here to tell you, aren’t too different from our parody. So a defendant has a perfect right to have his lawyer file a notice of appeal, even after an appeal waiver. He can always decide not to follow it up if getting the plea vacated means risking a longer sentence.  As the Idaho defense lawyers argue in their friendly brief, the worst that can happen is that some appellate lawyer has to write an Anders brief showing why there are no “non-frivolous” issues. But it’s not okay to refuse your client’s request to file a notice.

Thomas, after kvetching that this amounts to imposing “mechanical rules” on lawyers (as if lawyers were a bunch of Montessori kindergarteners), goes on to rail against the whole notion of any constitutional right to counsel. Back in the good old days when children could be hanged for stealing a piece of cheese, the right to counsel meant only that an accused couldn’t be prohibited from having a lawyer, “not as a guarantee of government-funded counsel.”

According to Thomas, the Supreme Court has been tobogganing down the slippery slope ever since Gideon v. Wainwright to the point where indigent criminals can demand not only counsel, but effective counsel! Imposing a crushing burden on taxpayers! Why! exclaims Thomas, the Federal Government’s budget for defense counsel is over $1 billion!

Apparently not realizing that $1 billion is peanuts to us taxpayers forking out $25 billion for a wall.

Let’s make suppression hearings great again!

   . . . even if they never were.

(This is a re-creation. Yesterday’s post disappeared under mysterious circumstances after being published).

Ever since Justice Frankfurter’s outraged account of the Sacco and Vanzetti case (a marvelous model brief on how to call courts and prosecutors crooks and liars without actually saying so), judges have scrambled to declare their disapproval of eyewitness identifications. “Proverbially untrustworthy!” “Scientific studies!” “Wrongful convictions!”

Blah, blah, blah. In the world beyond commencement addresses and Law Day speeches, how often does a judge throw out these proverbially untrustworthy identifications? Especially when made by a cop? About as often as a judge’s car gets towed from in front of the courthouse.

New York allows (sometimes) for a pretrial hearing to determine whether it was the eyewitness who told the police “that’s him!” or the other way around. But for all the chin music about due process, the rigged process guarantees that just about every “identification” will go unsuppressed.

(Scene: Courthouse conference room. Defense counsel and prosecutor sit at opposite sides of the table with their case files).

Prosecutor: Your client is charged with conking a woman on the head and purloining her purse. She picked him out of a lineup six years later. Her identification will be admitted at trial and she’ll tell the jury that she recognizes him in court.

Defense counsel: Not if the judge finds the lineup suggestive.

Prosecutor: The term is unduly suggestive. Duly suggestive lineups are okay.

Defense counsel: I assume she’ll testify at the hearing about how she was able to recognize him after six years.

Prosecutor: In your dreams.  I  don’t even have to tell you who she is, much less have her testify.  My only witness will be the detective who conducted the lineup.

Defense counsel: That’s ridiculous! Of course he’ll say everything was constitutionally tickety-boo. How is the judge supposed to make an independent determination without hearing from the eyewitness?

Prosecutor: According to People v. Chipp, that “would enable defendants to harass identifying witnesses and to transform the hearing into a discovery proceeding.”

Defense counsel: My client is a 70-year old homeless man who doesn’t even have a phone. Don’t you have to make some kind of showing that he’s likely to harass the witness and transform the hearing into a discovery proceeding?

Prosecutor: Nope. There’s an irrebuttable presumption that anyone accused of a crime is going to off the witness.

Defense counsel: (sigh) Okay, let’s talk about the buy-and-bust case. Of course you’ll be calling the undercover cop who allegedly bought drugs from my client.

Prosecutor: Certainly not. According to the Court of Appeals, that would allow suppression hearings to be “used as tools to pressure the prosecution into accepting a plea more favorable to the defendant in order to avoid compromising the undercover’s safety or the integrity of pending investigations.”

Defense counsel: “Pressure the prosecution,” that’s a good one.

Prosecutor: I’ll say! Ha, ha, ha! If you must know, I’ll call someone from the arrest team. They were eating donuts in a nearby car when they got a radio transmission with a description of your client.

Defense counsel: Transmission from who?

Prosecutor: What does it matter? Whoever sent it must have known that your client sold drugs, why else would they have transmitted the description?

Defense counsel: What kind of cockamamie reasoning is that?

Prosecutor: Court of Appeals. People v. Ketcham. Need the cite?

Defense counsel: No, I need a drink. (Hastily) But I’m sober as a judge. You’re required to turn over whatever notes or recordings the donut-eating cops made of the transmitted description.

Prosecutor: Ha, ha, that’s why the cops didn’t make any. But you can be sure the description fit your client or they wouldn’t have arrested him. Anyway, there’s no chance of a mis-i.d. They found pre-recorded buy money on him. Look, here’s the money and here’s the photocopy. You can see the serial numbers match.

Defense counsel: But there’s nothing to show that the photocopy was made before the arrest! They could have just taken his money and photocopied it afterwards.

Prosecutor: What are you, some kind of cop-hating nut? How could you even think of such a thing?

Defense counsel: Instead of “buy-and-bust,” they should call it a “take our word for it” operation.

Prosecutor: So go talk to the Chief Judge. I hear she’s in town giving the keynote speech on eyewitness misidentification for the Wrongful Convictions Conference.

Chief to judges: dissent at your own risk.

Does your boss stifle dissent? You’re not alone! The fearless Judge Saxe, retired from the First Department, reveals that Chief Judge Flowerpot refuses to let judges stay past retirement age if they’ve written too many unsuccessful dissents.

Used to be that if an appellate judge turned 70 and wanted to keep working, she was automatically given certification to stay on the bench for a few more years unless totally gaga.

But in a shockingly candid, no-holds-barred account, Saxe discloses that when he came up for certification, Judge Tom, his immediate boss, asked for his “batting average.” This turned out to be code for “how many of your dissents persuaded the high court to reverse our judgments?”

“Say what?” or the functional equivalent thereof, queried Saxe.

“There’s a new sheriff in town,” explained Tom, referring to Chief Flowerpot (former suburban District Attorney). She wants to discourage “unnecessary dissents.”

“The topic became the talk of the lunchroom at the First Department for days,” relates Saxe. Even the under-70 folks felt “in the cross-hairs.”

Scene: First Department lunchroom.

Judge #1: (age 69 ½) Oh no, not chicken à la king again!

Judge #2: (age 69 ¾) This could be our last meal together, Bucky. I told you not to dissent about the algae in the swimming pool.

Judge #1: Yeah, well you shouldn’t have dissented about transporting umbrellas across state lines. What are you going to do with the rest of your life?

Judge #2: Arbitration, I guess. Same boneyard for retired judges that you’re going to.

Judge #3: (age 42)(gulping his jell-o salad) Golly, I guess I’d better compromise my principles and go along with the majority every time.

Judge #1: You got it, sonny.

Judge Android, evidently the latest victim of the Flowerpot Decree, pointed out that lawyers “are often disheartened by the courts’ seemingly cursory disposition of the appeal in the brief unsigned memorandum decisions.” (Ya think?) Dissents, he asserts, help “dispel the impression that the court is merely cranking out a ‘result.'”

Well, there are different kinds of dissent. Our favorite, naturally, is “the-majority-didn’t read-the-defense-brief” type:

Majority: Contrary to the defendant’s idiotic contention, the People are not obliged to call every police officer involved in a buy-and-bust operation. Notwithstanding that he was in Philadelphia at the time of the buy, the sergeant who testified to the confirmatory identification was highly trained, experienced, knowledgeable, professional, seasoned, veteran, candid, handsome, savvy, mustard-keen, right-stuff, old hand and brimming with credibility. The People are not obliged to call every. . . oh wait, we already said that. Affirmed.

Dissent: Defendant was alleged to have sold drugs to an undercover, who told another undercover, who told another undercover, who told the desk sergeant on the day shift, who told the janitor, who told the desk sergeant on the night shift that one of the guys in the lockup was the drug seller. The court denied defendant’s request to call the janitor. I don’t call that a confirmatory identification no matter how experienced the sergeant was. What was he doing in Philadelphia anyway?

Moreover, to explain the absence of drugs, the court allowed him to testify that since drug dealers are adept at hiding drugs, it may reasonably be inferred that anyone arrested without drugs is a drug dealer. When defense counsel objected, the court asked the witness, “Officer, isn’t it a fact that you wouldn’t have arrested him if he weren’t selling drugs?” This was one lousy suppression hearing and I “respectfully” dissent.

Then there’s the “I-write-separately” type:

I agree with the good and wise majority that the People need not call every police officer involved in a buy-and-bust operation. Or any witnesses at all, for that matter.  I write separately to note that judges are woefully underpaid and deserve a big fat raise. Every time one of these white-shoe lawyers gets up to argue, I can see him derisively thinking, “I make more than you, your Honor.” It’s not fair.

Finally, there’s the “sore loser” dissent:

Hah! So the majority overturns the deeply considered verdict of twelve taxpaying citizens and allows this recidivist criminal to yet again strain the scarce resources of the court system by getting yet another trial. Obviously the police had probable cause to arrest the defendant. After all, a subsequent search revealed drugs in his pocket.

And as for Judge Flowerpot’s policy: does the AARP know about this?

 

Is a trial a search for the truth?

Every now and then, a judge will declare that a trial is “a search for the truth,” or, in one drunk driving case, a sober search for the truth.  The judge continued, “In the search for truth, no man has yet been harmed,” quoting a Stoic philosopher who was evidently never a criminal defendant, or if he was, had no priors.

What would a trial look like if everybody had to search for the truth?

Prosecutor: Ladies and Gentlemen, the truth is we really don’t know whether the defendant is guilty. Oh, sure, he’s been indicted, but we all know that a grand jury will indict a ham sandwich. It’s just that somebody has to pay for this terrible crime.

Defense counsel: Objection!

Judge: Overruled. Ladies and gentlemen, the truth is that when I overrule an objection by defense counsel, it’s because I don’t like her. She’s as charming as a porcupine on a bad hair day.  Plus, I have an opinion about her client’s guilt. How could I not, when I presided over the suppression hearing?

Prosecutor: (continuing) I had to spend days rehearsing my witnesses, a pathetic bunch of crybabies and losers, to make them get their stories straight. My police witnesses, of course, don’t remember a thing about the incident except that every gun is in plain sight, every defendant has glassy eyes and emanates the odor of alcoholic beverages, and every hassle with a civilian results in substantial pain and physical impairment to the cop, forcing him or her to take three years of paid leave.

Defense counsel: Ladies and Gentlemen, the truth is my client is a truculent hooligan who thinks he knows more about the law than I do because he has 49 misdemeanor convictions. The rest of my opening statement will be taken verbatim from “Mauet on Trial Technique.”

Judge: Ladies and Gentlemen, remember how we spent two weeks on jury selection because we had to kick off everyone who couldn’t accept the “beyond a reasonable doubt” standard? The truth is that nobody in their right mind ever asks for that kind of certainty. “Beyond a reasonable doubt,” what does that even mean? (collapses with laughter).

Defense counsel: (joining in) And you know why my client doesn’t testify? Because he did it! Yes, he took up two seats in the subway!

Prosecutor: Ha, ha, ha, truly a bullshit crime. Your tax dollars at work.  But you’d better convict, or my boss won’t get re-elected.

As Alan Dershowitz explains, there’s truth. . . and then there’s truth.

Ineffective Assistance of Counsel, Aussie Style

One of our worst moments as an appellate squawk was sitting in an Alabama courtroom watching a lawyer hand over his former client’s entire file to the prosecutor.  The idea being that if a defendant argues on appeal that his conviction was due to his trial lawyer’s screw-ups, all bets are off, attorney-client confidentiality-wise. It supposedly becomes A-ok for the lawyer to help the prosecution nail down his former client’s conviction.

Fortunately, since this Alabama lawyer had done almost nothing in this capital case, there was almost nothing in his file. Ha, ha!

Even here in client-centered New York, the turncoat school of representation has its adherents. There was the Bronx hack who furnished an affidavit to the People explaining that the reason she hadn’t consulted a DNA expert was that she knew her client was guilty. Very annoying, since post-conviction testing of the purportedly incriminating swab showed a complete absence of his DNA.

Then there was Kimberly Summers, a doll fresh out of law school who, after getting a bunch of time for her client, blogged and tweeted, while the appeal was still pending, that he was a rapist. This, in a purely he-said-she-said case where the client plausibly testified that it was a consensual encounter with a prostitute where she was bilked out of her fee.  The prosecutor put in so much improper hearsay that even the judge had to ask defense counsel if she didn’t object.  This zealous advocate ended by effectively telling the jury not to believe her client.  No doubt she was distracted by her eager participation in a film being made about the trial by a women’s-rights advocate to promote the Manhattan DA’s Sex Crimes Unit. The blog breathlessly lauds the film, which shows her client weeping as the judge derides him at sentencing. With a defense lawyer like that, who needs a prosecutor?

But for anti-client lawyering, nothing beats the Australian attorney known only as 3838, who spent years as a registered police informer against her clients.

Although her information enabled hundreds of her clients to be convicted, the police somehow managed to keep the Office of Public Prosecutions (OPP) in the dark about where it was coming from. Until a journalist broke the story about “Lawyer X, a prominent barrister who was recruited and registered as an informer.” An official investigation confirmed that she was indeed making a practice of ratting out her clients.

Her motive? “Charismatic, brash and witty, she loved a drink with cops and crims alike,” someone later explained. “She wanted to be wanted.”

This was a fair dinkum barbecue stopper, as they say in Oz. The OPP, shocked, shocked, concluded that the resulting prosecutions and convictions were “unsafe” and that the convicted persons had to be told. But Lawyer X and the cops demanded suppression of the investigation report, arguing that disclosure would create an “almost certain” risk of her being offed by disgruntled drug kingpins. Lawyer X flatly refused a witness protection program, since that would have put a damper on her drinking with cops and crims alike.

Too bad, said the Australia High Court. A lawyer grassing on her clients while pretending to defend them has committed “a fundamental and appalling” breach of her obligations, corrupting the entire process “in a manner which debased fundamental premises of the criminal justice system.” The convicted persons have to be informed, the Court concluded, and if Lawyer X refuses to be put in a witness protection program, “she will be bound by the consequences.” Or, as we say in Brooklyn, snitches get stitches.

The public comments in the Sydney Herald’s account of the scandal show that some people cared less about the debasing of fundamental premises of the criminal justice system than putting away drug kingpins. An understandable reaction, given that many of the crims were serious baddies who gunned down families in public, hardly the done thing even in Australia.

Our reaction is, how in the world did Lawyer X manage to fool all of her clients for all that time? Are kingpins really that dim?

Scene: Prison visiting room. Sounds of “Waltzing Matilda.”

Kingpin: G’day, Counselor. I’m sittin’ in this boob miserable as a bandicoot. Strewth, what are you doing?

Lawyer X: (fumbling under her blouse) Er, nothing, I think my bra strap broke.

Kingpin: Looks like I got the rough end of the pineapple being stuck with a Sheila lawyer.

Lawyer X: Testing, testing? Okay, it’s running. Um, I mean, my bra strap is fixed. The time is 2:30 p.m., and I’m in the counsel visiting room with Joey “Manslaughter” Gaboomba.

Kingpin: Why are you telling me this? I can see you’re here.

Lawyer X: Just a silly legal formality.

(loud acoustic whine from Lawyer X’s chest)

Kingpin: What’s that?

Lawyer X: Heh, heh. I shouldn’t have had that chili for lunch. Let’s talk about your case. Where were you when Bigfoot was shot?

Kingpin: Miles away. Camping by a billabong under the shade of a coolibah tree.

Lawyer X: With a bonzer alibi like that, it’s a fair go at trial. Who was Bigfoot?

Kingpin: A banana-bending lillywhacker from Queensland interfering with my bizzo.

Lawyer X: What bizzo?

Kingpin: We train kangaroos to deliver cocaine across state borders. Nobody ever thinks of searching a kangaroo.

Lawyer X: (fumbling under her blouse again) Bloody oath, it’s disconnected. Listen, could you write down a full description of your bizzo? Where you get the cocaine, how you launder the money and all that?  Oh, and the names and addresses of everyone involved?

Kingpin: No worries. Anything else I can do to assist in my defense?

Lawyer X: You could tell me how you rubbed out Horsie last year and what similar future plans you have.

Kingpin: (admiringly) Fuck me dead, it’s the ant’s pants to meet a lawyer who’s interested in me as a person for a change. Most lawyers don’t give a flying didgeridoo about their clients’ achievements and aspirations.

Lawyer X: Reckon I’m taking client-centered lawyering to a new level.

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.

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.

 

 

 

 

Are your politics acceptable to your cabdriver?

As Rumpole of the Bailey would tell his clients, a public defender is “a taxi plying for hire,” making him “duty bound to take on any client, however repellent.”

But the taxi comparison is no longer operable, now that cabdrivers are screening 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  called “We, the People.”  According to the Huff, this rally consisted of about 30 people, including “at least two” members of the 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 took the hint and 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-aligned 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.