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?

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.

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

Newspeak reforms Criminal Justice

The latest decree from the boss is to reform our vocabulary in compliance with The Criminal Justice Reform Phrase Guide authored by The Opportunity Agenda, a propaganda machine 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.” Neighborhoods aren’t to be called “dangerous,” let alone “crime-prone,” but “Communities experiencing high levels of violence.”

Burglars, we could add, should be called, “People who do not have the house keys,” and drug dealers called “People whose merchandise lacks FDA approval.” Really, 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.

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.”

Watch for the t.v. series re-named “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 curvaceous black woman, “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:

By Source, Fair use, https://en.wikipedia.org/w/index.php?curid=32812516

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-style.

Our hearts and minds are duly stepping into line.

Judge Kavanaugh’s crickets

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

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

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

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

“Think about what the FCC is saying: Under the rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets.” U.S. Telecom v. FCC (D.C. Cir. 2017) (Kavanaugh, J., dissenting). 

“Even if a reasonable police officer could have doubted the credibility of the trespassers who claimed to be invitees, those credibility doubts do not count as “conflicting information.” What case had ever articulated such a counterintuitive rule? Crickets.” Wesby v. D.C. (D.C. Cir. 2016) (Kavanaugh, J., dissenting).

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

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

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

Queens judges say the darndest things

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

Picture this:

Prosecutor: Objection.

Judge: Overruled.

Prosecutor: Dad-dy!

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

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

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

How in the world did he manage to provoke the Appellate Affirmance Machine into reversing one conviction, let alone four?

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

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

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

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

Judge Hollie clarifies the record

 

 

 

Granny stun-gunned for gathering dandelions

Martha Al-Bishara is 87 years old.

She came to the U.S. from Syria 22 years ago.

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

Walked across the street to a vacant lot to gather dandelion greens for salad.

Had a small kitchen knife.

Vacant lot was the property of “Boys and Girls Club.”

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

Three cops respond to this emergency.

Peering cautiously from behind some bushes, they see her cutting dandelion greens  and putting them  in a bag.

Two cops point guns at her, order her to drop the knife.

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

She walks toward them.

Since she doesn’t understand English, they try speaking Spanish to her.

Cop shoots taser prongs into her in breast and stomach.

She cries out and falls.

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

All 3 cops manage to escape with their lives.

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

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

Held for 2 hours.

Charged with trespassing and obstruction of justice.

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

Family gets her out, takes her to hospital.

Is confused and in distress.

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

Grannies’ lives matter.

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

Greeks think of them as a super healthy food

Good to lower BP

Good to lower BS

Good for the prostate, etc. etc.

It’s a very common side dish with fish

Like a potato with a steak is in US

They are a little bitter, like chicory,

(but the young tender leaves are much less bitter- that’s what the 87 year old granny was after).

I think it’s important for readers to know that she wasn’t just a demented granny with a knife, cutting grass

Her actions had a purpose

…..to secure a delicacy prized in her culture.

Albany prosecutor fired for secretly writing defense briefs

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

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

An appellate attorney discovered the boondoggle. He urged the pair to come clean and inform the court. Sharp and Coleman refused, indignantly accusing the attorney of extortion and trying to ruin Sharp’s career and stoutly maintaining that they were doing nothing wrong.

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

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

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

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

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

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

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

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

VFFA DA: Why’re you letting him go? A #MeToo problem?

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

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

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

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

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

VFFA DA: Looking at their photographs, I’d say they both look pretty developed as human beings. Why doesn’t he just go work for her openly?

ALBANY DA: I guess without the secrecy it loses that je ne sais quoi.

Masterpiece Cakeshop refuses birthday cake for Satan

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

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

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

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

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

As Phillips explained:

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

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

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

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

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

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

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

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

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

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

Ain’t tolerance wonderful?

 

How to get judges to read your brief

Judge Saxe is at it again, handing out more advice about appellate briefwriting.  “The reply brief is an important document,” he pronounces.  It’s “the last word” that the judges will read. It should consist of “short, declarative, punchy sentences.” Based on “abundant anecdotal information,” he alleges, “many appellate judges have the habit of reading a reply brief first.”

Oh, yeah? Well, after a couple of decades of arguing criminal appeals in his court we have abundant anecdotal information that many appellate judges  have the habit of reading nothing but the bench memo cranked out by an anonymous pool clerk who’s read nothing but the People’s brief. Glancing at it for the first time when we stand up for oral argument.

Reply brief? Might as well stick it in a bottle and throw it in the East River.

This is no secret. Judges are advised not to bother reading the “often turgid and prolix briefs” and rely instead on the bench memo, which conveniently includes a pre-argument decision affirming the conviction.  “Reversals are disruptive to a system that values predictability and productivity,” Saxe explains, “because reversal often means that the matter must be done over.”

The incredible disruptiveness of asking a court to correct its mistakes!

Even Justice Ginsburg accuses lawyers of filing appeals only because they’re “available and inexpensive,” to the annoyance of “overworked appellate judges.” Most appeals lose, she opines, because the arguments are “exceedingly weak,” trial courts being presumptively infallible.  Her advice on raising an appeal? “Perhaps you shouldn’t.”

But suppose you have a case where nobody in their right might would disagree that your client got the worst trial since Sacco and Vanzetti. Your arguments are exceedingly strong and your brief is neither turgid nor prolix.  Your reply uses such short, declarative, punchy sentences, Elmore Leonard couldn’t have done better.  The People’s brief, as usual, is written by a pompous semiliterate. But you lose anyway, because nobody’s read your brief.

How to get judges to read it? Maybe this will work:

Linda Fairstein: Central Park Five guilty as charged

The videotapes show that “the questioning [of the Central Park Five] was respectful, dignified, carried out according to the letter of the law and with sensitivity to the young age of the men. . . . If you spot the first sign of a coercive questioning, don’t hesitate to write to me and point it out.” 

—  Former ADA Linda Fairstein’s Letter to the Editor of the NY Law Journal, July 31, 2018.

The Central Park Five, if you remember, were five teenagers who were convicted, based entirely on confessions, of the brutal rape of a young woman in Central Park. After years in prison, they were exonerated by the confession of a serial rapist, which, unlike the Fives’ confessions, was corroborated by DNA.  After a dozen more years of litigation, the Five were awarded $41 million and the federal court ordered the full record to be made public. Accordingly, the NYC Law Department has just now started a website which, if you have the patience of a saint, will grudgingly let you see some of the documents in the case.

Linda Fairstein, who was head of the Manhattan DA’s Sex Crimes Unit at the time of the trials, insists that the unsealed record will “confirm the original verdict.”

“The confessions were not coerced,” she explains, or else the trial court wouldn’t have found them admissible. The videotapes show that “the questioning was respectful, dignified, carried out according to the letter of the law and with sensitivity to the young age of the men. . . . If you spot the first sign of a coercive questioning, don’t hesitate to write to me and point it out.”

Plus, she says, she wasn’t the prosecutor.  “Instead, I was an eyewitness to many of the events at the police stationhouses throughout 36 hours when the statements were obtained.”

Of course the videos won’t show coercion. Because they won’t show the interrogation. Until recently, the cops never called the video tech until the suspect was “ready to make a statement.”  Not only were these “men of young age” questioned for hours overnight before their videotaped statements, two were taken to the crime scene by mere eyewitness Fairstein, thereby feeding them information that could then be used as proof that they were there.

Here’s what the late Judge Titone of the Court of Appeals had to say about Fairstein’s involvement in the questioning of Yusuf Salaam, one of the Five:

At a little after 10:30 p.m. on the day after the highly publicized crime occurred, Detective Taglioni and three other detectives went to defendant’s home and “asked” him and his two companions to come to the police station for questioning. Defendant “voluntarily” accompanied the detectives, while his sister called an aunt who lived near the police station, Marilyn Hatcher, and asked her to go to defendant’s aid. Hatcher left for the police station with her fiancé almost immediately, arriving at approximately 11:10 p.m. By that time, defendant had arrived at the police station and had been taken to the Sex Crimes Office for questioning.

A Detective McKenna read defendant the Miranda warnings and obtained a waiver of his rights just as Hatcher reached the police station and told an officer that she wanted to see her nephew. After being asked to wait for a few minutes, Hatcher was told by Detective Taglioni that defendant was currently being questioned, that she would not be permitted to see him because she was neither a parent nor a guardian and, finally, that defendant would not even be given the information that “some of his family was there.”

Approximately 15 minutes later, David Nocenti, a United States Attorney who happened to be defendant’s “Big Brother”, arrived. Having learned from Hatcher that she had been prevented from seeing defendant, Nocenti approached the desk officer and informed him that he was a friend of defendant’s family as well as an attorney.

Nocenti was asked to wait while Assistant District Attorney Fairstein, the head of the Sex Crimes Prosecution Unit, was informed of his presence. Fairstein conferred with one of the detectives who was involved in defendant’s questioning and ascertained that defendant had already made a number of inculpatory statements. Fairstein did not suggest that the questioning should be suspended because of Nocenti’s presence. Instead, she approached Nocenti, told him that he had no right to be at the precinct and questioned his ethics as an attorney.

Significantly Nocenti had made it clear that he was there not in his capacity as an attorney, but rather was there as a friend of the family who wanted to aid defendant. At 11:40 p.m., Fairstein told Nocenti that he could not see defendant and that he would have to leave the premises because he was neither an immediate family member nor an attorney representing the suspect. As in the case of Marilyn Hatcher, defendant was not informed that Nocenti had come to the precinct to see him.

Within minutes, defendant’s mother arrived and encountered Hatcher and Nocenti, who were waiting outside the precinct. The entire group then reentered the precinct and informed the desk officer that defendant’s mother was now there. After waiting for a few minutes, Fairstein and another Assistant District Attorney spoke with defendant’s mother and told her that she would be permitted to see him after the questioning had been completed.

After conferring with Nocenti outside, defendant’s mother went back inside, this time demanding that she be permitted to see her son immediately. It was then that she revealed for the first time that defendant was 15, not 16 as the authorities had previously been led to believe.

Apparently caught off guard, Fairstein bickered with defendant’s mother and Detective Taglioni for a few minutes before deciding to call a halt to the interrogation. Even then, the questioning did not immediately stop. Instead, it merely shifted to the subject of defendant’s age and how it had been misrepresented on his identification card.

In all, defendant was questioned for an hour and a half before the interrogation was terminated. During that entire period, unbeknownst to him, there were related and/or concerned adults who were present and could have provided him with helpful counsel had they not been denied all access to him. What emerges from these facts is a picture of law enforcement officers who were so anxious to extract a full and complete confession that they did everything within their power to keep this youthful suspect isolated and away from any adults who might interfere with their exploitation of “the awesome law enforcement machinery possessed by the State” [. . . .]

In this regard, the majority’s suggestion that the police “reasonably believed that they were dealing with an adult” is fallacious. Even assuming, as the police justifiably did, that defendant was 16 at the time he was questioned, it cannot be said that he was actually an adult in any realistic sense of that term. To be sure, our statutes would permit him to be tried as if he were an adult for the serious crimes of which he had been accused . . . .  None of these statutory provisions, however, negate the elemental fact that defendant was, at most, 16 years old and, under our State’s law, an infant for most purposes. . . .

[D]efendant had neither the maturity nor the experience to protect his own rights in the inherently coercive, police-dominated atmosphere in which he found himself. . . . [H]e should have been permitted to establish “contact” with the adults who were waiting outside to see him and “who might be able to provide him with assistance or advice” regarding the seriousness of the situation and the need for consultation with counsel before making statements that would irrevocably prejudice his legal position.

Furthermore, there can have been no other reason for the decisions of Detective Taglioni and Assistant District Attorney Fairstein to prevent defendant’s aunt, “Big Brother” and mother from speaking to him other than to capitalize on his youth and isolation and to assure that he did not receive aid and advice from the supportive adults who were in a position to retain counsel for him. Indeed, it is apparent that the authorities’ purpose was to obtain the evidence they wanted before permitting defendant to speak with an adult who might interfere with the investigators’ absolute control over his person and environment.  In other words, “the police intentionally deprived the defendant of access to his family in an effort to obtain a confession”

Contrary to the majority’s assertion, the foregoing conclusion requires no impermissible inference drawing. Assistant District Attorney Fairstein made the authorities’ motives in this regard explicit when she told defendant’s mother that she would not be permitted to see her son until after the detectives were finished with their questioning. This declaration that defendant would continue to be isolated despite the presence of his mother at the police station belies the suggestions made earlier to Hatcher and Nocenti that the only reason they were being denied access was that neither was a parent or a person who had come to provide legal representation.

Finally, defendant’s need for an adult perspective in this situation is highlighted by the cynical manner in which the detectives manipulated the information they gave him in order to induce a confession. The detectives told defendant that he had been implicated in the crime by others but that it was possible that he could still be released “depending on what [he] ha[d] to tell [them].” When defendant balked, the officers told him, falsely, that they were able to lift fingerprints from the victim’s jogging pants. At that point, defendant, perceiving no alternative, acceded to the police pressure and began giving the inculpatory statements that had subsequently convicted him.

Manifestly, an experienced adult could have disabused defendant of the naive notion that there was anything he could say to police that would result in his release at this stage in the investigation. Certainly, a knowledgeable adult—or an attorney retained by such an adult—could have alerted him that he could not extricate himself from the most serious charges merely by denying having directly participated in the rape. In any event, defendant’s aunt, “Big Brother” or mother could have helped this 15–year–old suspect to appreciate the value of waiting until after he had spoken to an attorney before committing himself to the inculpatory statements he was in the process of making.

In sum, other than an undisguised intention to exploit this defendant’s youthful vulnerability, there was no justification for the authorities’ actions in preventing defendant from gaining access to the helpful counsel of the supportive adults who had gathered at the police station to assist him. Accordingly, I would hold that the statements the police obtained as a result of their overreaching ought to have been suppressed. Such a holding is necessary, in my view, both to deter the abuse of police authority and to protect the right to counsel of those who are too young and naive to appreciate its importance. Because the analysis and holdings of the courts below, and of the majority here, fail to give adequate weight to the rights of this unrepresented juvenile, I dissent from the decision to uphold his conviction.

People v. Salaam (NY 1993)(Titone, J., dissenting)

Considering that Fairstein has spent the last 20 years writing novels with titles like, “Likely to Die,” “Lethal Legacy,” “The Bone Vault,” “Hell Gate,” and others suitable for killing time at the airport, it’s not surprising that she edits out whatever doesn’t contribute to her story line.  Prosecutors have always believed in fact fluidity.

ADDENDUM: The controversy over Fairstein’s fiction: Being Fair to Fairstein.

Sentencing Sheldon Silver

“The Government got up and said. . . we want other people to see his sentence and to think twice about committing a crime. And I remember Judge Glasser looked at the assistant and said, what you’re suggesting is that I give this person a sentence that’s more severe than is required in the hope that that sentence will one day keep a person who may not yet even be committing a crime from committing the crime.  He said, I can’t do that.  Sentencing is an individualized process.”

—Defense counsel at the sentencing of former NY State Senator Carl Kruger.

“Mr. Adelson’s good deeds were not performed to gain status or enhance his image. Most of them were unknown to all but a few people until the time of his sentencing. But, surely, if ever a man is to receive credit for the good he has done, and his immediate misconduct assessed in the context of his overall life hitherto, it should be at the moment of his sentencing, when his very future hangs in the balance.”

— Judge Jed Rakoff at sentencing in U.S. v. Adelson.

Sheldon Silver, the 74-year old former Speaker of the NY State Assembly, is about to be sentenced again after his original conviction was overturned by the Second Circuit.

Considering the unanimous media howling against him, it’s not surprising that his speeded-up retrial resulted in a repeat conviction.  He’ll be sentenced by Judge Valerie Caproni who, at his previous sentencing,  slammed him with 12 years in prison and forfeiture of all his assets.

In the spirit of displaying the decapitated head of the condemned as a warning to others, the judge explained that the harsh sentence would instill in “the next politician” “the fear of living out his golden years in an orange jumpsuit.”

She pooh-poohed Mr. Silver’s 40 years of extraordinary achievement and good works, opining that his was an “exceptionally serious crime.”  Even if no one suffered any tangible harm, she said, the “intangible” harm was “incalculable”  because New Yorkers would never trust a legislator again.

For all the flinging about of words like “bribery,” “kickback,” and “corruption,” it’s hard to see what was exceptionally serious or incalculably harmful. Especially after the Second Circuit, reversing the first conviction because of the court’s misleading jury instructions, opined, “We cannot say, beyond a reasonable doubt, that a rational jury would have convicted Silver [even] if properly instructed.”

We asked our friend, bigshot federal attorney Flywheel Shoetree to explain.

“Elementary,” said Flywheel putting his fingertips together Sherlock-Holmes style. “Silver awarded two grants of $250,000 each for research into cancer contracted from asbestos.”

“The scoundrel!” we exclaimed. “Of course that money was bilked from vulnerable widows who contributed it thinking it would be used to feed hungry children.”

“Er, not exactly,” said Flywheel. “The money came from funds that Silver had full discretion to disburse for healthcare projects.”

“Then this so-called ‘cancer research’ must have been a bogus front for funneling the money into Silver’s pocket,” we said. “That’s the standard paradigm of corruption.”

“Wrong again,” said Flywheel. “There was no question that the recipient was a well-regarded doctor at Columbia University who used the money for asbestos-related cancer research. But Silver also asked him to refer his patients to a particular personal injury law firm.”

“Aha!” we said. “And this shady law firm took these patients’ retainers and absconded.”

“Not at all. The firm had a respectable asbestos-injury practice and zealously litigated those cases,” said Flywheel. “But they gave Silver a referral fee.”

“No doubt referral fees are highly illegal,” we said.

“Certainly not!” snapped Flywheel. “They’re standard practice. But the prosecution says it was a quid pro quo. In other words, that Silver awarded the grant to the doc to get the referrals.”

“But the doc went on referring patients even after Silver told him in 2007 that there’d be no more grants,” we pointed out. “So even if there was a quid pro quo before 2007, the 5-year statute of limitations would bar prosecution.”

“Silver had another quid up his sleeve,” said Flywheel triumphantly. “In 2011, he sponsored an Assembly resolution honoring the doc. So it’s not time-barred after all.”

“Even the Second Circuit said you can’t seriously call that a quid,” we protested. “Honorary Assembly resolutions are a dime a dozen. The Assembly rubber-stamps hundreds of them a year, honoring boy scouts, old folks, high school sports teams, even a sports team jersey –”

“You want this country to be like Russia?” retorted Flywheel. “You heard the judge. It doesn’t matter that the funding, the cancer research, the representation of asbestos plaintiffs and the referral fees were legit. Or that nobody lost a dime in the process.

“Same with Silver’s referring real estate developers to a law firm specializing in tax assessments, which paid him referral fees. Doesn’t matter that he never did anything different for the developers that he wouldn’t have done without the referrals.  If the Government and the newspapers want to call it bribery and kickbacks and the most dastardly corruption of the century, then it’s bribery and kickbacks and the most dastardly corruption of the century. Capeesh?”

“We can only hope the judge has had some kind of epiphany in the past two years,” we sighed. “Maybe this time she’ll read the letters about how Mr. Silver was personally out on the street helping people after 9/11 and again after Hurricane Sandy. That he cut through red tape for welfare mothers, senior citizens and all kinds of individuals caught up in bureaucratic snafus.  That he blocked Mayor Bloomberg from building a football stadium in the middle of Manhattan, kept the legislature from reinstating the death penalty – – ”

“Yeah,” agreed Flywheel. “The judge shouldn’t worry so much about what us New Yorkers think about our legislators. We weren’t born yesterday and we know how to vote them out if we have to. She should worry about our faith in the judiciary when a federal judge sends a guy like Silver to die as a pauper in the slammer.”

Addendum: On July 27th Judge Caproni sentenced Silver to 7 years in prison . 

The ban on “sex offender” art

“Leaving the artwork up could serve as a trigger for our students and staff who have been victims of child abuse and sexual assault. Since the display is at the campus main entrance where our students and staff are required to enter and exit, the potential to trigger is very real. . . . In the end the requirement to provide a safe place for our students stands paramount.”

— President of the University of Southern Maine explaining his order to remove three paintings from an art exhibit upon learning that the artist was a registered sex offender.

The exhibit was a curated group show entitled “Industrial Maine: Our Other Landscape.” The artist whose three paintings presented “a very real” potential to trigger traumatic memories of abuse was a well-regarded Maine painter whose “industrial landscape” work looks like this:

Title: Distant Industry. “I painted this piece plein air at a local closed paper mill. . . The smokestacks, the icons of the Industry survive to remind us of our past.”

Title: Cape with Yellow Truck. “Many times in my travels in the back roads of Maine I have come across these old trucks just rusting in the fields. . . put to pasture, so to speak.

Title: Signs and Overpass. “The painting was all about simple design and the feeling of loneliness.”

He’s on Maine’s SORA registry based on a conviction from 20 years ago for which he served six months in jail. When the show went up, a relative of the victim complained to the Prexy.  Before you could say “public safety,” his three paintings were gone.

The outraged curator refused to replace them.  Instead, she put placards in the empty spaces saying:

Apparently the placards also constituted a clear and present danger of invading the safe space of victimized students.  The Prexy had them removed.

Mind you, this wasn’t the act of some freshman snowflake melting over being assigned to read “Hamlet.”  This was the middle-aged president of a state university proclaiming in all seriousness that looking at a painting of Maine landscape has the “very real” potential to trigger a traumatic episode.

The greatest absurdity, of course, is his notion that college students take their noses out of their Smartphones long enough to notice anything at all, unless it’s something to eat.

Tiffany: Hey, Jason, there’s an art show on campus called “Industrial Maine: Our Other Landscape.” Let’s go see it.

Jason: I don’t know.  There might be a painting of a smokestack by a sex offender.

Tiffany: You’re right, we’d better not risk being traumatized.

Jason: On the other hand, there’s free wine and cheese.

Tiffany: What are we waiting for? Let’s get there before it’s all gone!

The artist was generous about it, saying he was sorry his paintings had drawn “negative attention” to the exhibit.

At least he’s in good company. The National Gallery of Art in D.C. just canceled a show of Chuck Close because of allegations of verbal sexual harassment by a portrait model. What if Leonardo had said something fresh to Mona Lisa? Would the Louvre send “La Gioconda” back to Italy in disgrace?

The only solution is a Salon des Refusés for artists rejected from mainstream venues based on their sexual misbehavior. Starting with Gauguin, Picasso, Close and our painter of Maine landscapes. There would be lines around the block.

h/t to @TheDobbsWire

Postscript: In September, the Anti-Registry Movement will hold an outdoor art show of works by SORA registrants in front of the USM campus. For more information, go to Oncefallen.com.

Criminal defense vs. “social justice”

A recent communiqué from HR casually let fall that we’re now a “social justice organization” dedicated to the interests of “the most vulnerable.”

And all these years we thought we were a public defender! We feel like the hero of Kafka’s “Metamorphosis” who woke up one morning to find himself turned into a giant beetle.

As an appellate squawk, we represent people convicted of crimes. Sometimes we think they might be innocent or that what they did shouldn’t be a crime, but  we’re still not going to enter them into any “most vulnerable” contest.  You want vulnerable, go read the Brooklyn DA’s press handouts about crime victims. Just kidding, don’t go near them.

As for “justice,” that’s exactly what we’re defending our clients against. “Bringing to justice,” “obtaining justice,” etc. are gassy expressions for prosecution and punishment. The Italians are more candid: giustiziare means putting to death.  Tacking “social” onto it doesn’t make it less retributive. Might as well put a hat on a piranha. As Hamlet said, “Use every man after his desert and who should ‘scape whipping?” We try to help our clients escape whipping, deserving or not.

How would a defense lawyer look plumping for social justice?

DEFENSE COUNSEL: The machete allegedly found on my client should be suppressed as the fruit of an unlawful search. The officer testified that his only reason for stopping him was that he was wearing a Red Sox cap.

PROSECUTOR: We concede there’s no possible interpretation of the Fourth Amendment that could justify the search. But the defendant had the machete hidden in his jacket while walking around the hallway of a public housing project inhabited by itty-bitty little children, marginalized women and the gaga elderly.

DEFENSE COUNSEL: Golly, I guess the interests of the vulnerable come first.

COURT: You bet. Suppression denied.

*******

DEFENSE COUNSEL:  The statute requires the indictment to be dismissed if the People aren’t ready for trial within 180 days without good cause. Since it’s now the 181st day, my client is entitled to dismissal.

PROSECUTOR: We candidly admit the delay is due solely to our laziness and incompetence. But the defendant was caught shooting into the window of a bodega, thereby offending the dignity of huddled masses yearning to breathe free.

DEFENSE COUNSEL: Well, I certainly don’t want to be a xenophobe. We’ll let it go this time.

*********

DEFENSE COUNSEL: I move to preclude any testimony about my client’s prior record, pursuant to People v. Rodriguez.

COURT: What does Rodriguez say?

DEFENSE COUNSEL: How should I know? The point is, my client belongs to a marginalized, powerless, historically underrepresented group.

PROSECUTOR: So does the victim.

DEFENSE COUNSEL: Oh, yeah? What supposedly powerless group does your so-called victim belong to?

PROSECUTOR: Dead people.

DEFENSE COUNSEL: Oh. Okay, you win.

Moral: If you need to wear a halo, don’t go into criminal defense.

Courts should take a tip from the Dept. of Agriculture

Reasonable people can disagree about GMO (genetically modified organism) food production. You can take the word of the multi-billion dollar agrichemical behemoths like Monsanto who deny its damaging effects on the environment, human health and the livelihoods of farmers and who go to scandalous lengths, such as pouring money into fake scientific journals and front organizations with names like the “American Council on Science and Health” or the “Genetic Literacy Project,” to portray its critics as tinfoil-hatted cranks.

Or you can ask why GMO’s are either banned outright or strictly regulated in over 60 countries. Not in America, of course.

Fortunately, the ever-vigilant Department of Agriculture (USDA) has proposed an array of warning labels for GMO foods:

The message is clear. You are solemnly warned that this Frankenstein food might be very bad for you, wink, wink.

Courts should take a leaf out of the USDA’s book:

Judge: Do you understand that by pleading guilty you voluntarily give up your right to trial? 

Judge: Do you understand that as part of the plea agreement, you’re voluntarily waiving your right to appeal? 

Judge: Do you understand that if you don’t come back for sentencing I’ll impose the maximum prison sentence? 

It’s the perfect appeal-proof warning. The judicial equivalent of the GMO. 

The ACLU uncompromisingly defends free speech — unless it’s offensive.

Why is everybody so down on the poor old ACLU just because of an internal memo proclaiming its zealous defense of free speech unless it offends vulnerable and marginalized minorities?  Even the NY Post joined the affray, moaning, “ACLU Stops Caring About Free Speech!”

Let’s be reasonable. Do you blame the buggy-whip manufacturers for switching to a different product when the horseless carriage took over? Do you make a scene at Rite-Aid because they no longer develop film?  Wake up and smell the coffee! Why shouldn’t the ACLU change with the times and don the robe and crown of the social justice warrior, now that free speech has gone the way of the dodo and the typewriter ribbon?

The deal with the First Amendment is that the government can’t restrict expression based on disagreement with the message.  You can be prosecuted for falsely shouting “Fire!” in a crowded theater or downloading porn involving real children, but not for the mere content of your ideas.

So eyebrows are raised when the ACLU memo’s very first paragraph worries about what to do when “the content of the speech we seek to protect conflicts with our policies on these matters” (emphasis added). Policies such as opposition to “white supremacy” and “bigotry and oppression against other marginalized groups,” such as women, LGBT’s, the disabled,  etc. and “the empowerment of people of color.”  The ACLU “understands that speech that denigrates such groups can inflict serious harms” and impedes “progress toward equality.”

Very noble, but isn’t the ACLU known for defending unpopular speech? Neo-Nazis marching in a Jewish neighborhood and things like that? Not any more, apparently. After all, the memo sniffs, “the ACLU as a private organization has a First Amendment right to act according to its own principles, organizational needs, and priorities.” According to the memo, they’re not going to defend a white supremacist group if doing so would piss off the ACLU’s “allies.”

So they now consider the following factors in deciding whether to defend persons being prosecuted for exercising their First Amendment rights:

• The impact of the disfavored speech/expression “on the equality and justice work to which we are also committed.”
• The speech’s potentially bad effect on marginalized communities.
• Whether the speech helps white supremacists or others “whose views are contrary to our values.”

Every few paragraphs, they toss in some jive about how the ACLU’s commitment to neutral principles of free speech remains unchanged. Say what?  It’s like Marc Antony’s repeated assurances that “Brutus is an honorable man,” in a speech that conveys exactly the opposite. The crowd wasn’t fooled.

And if the ACLU finds that not  defending some oppressor of the marginalized might “impact on the credibility of the ACLU as a staunch and principled defender of free speech,” they reserve the right to make up for it by condemning and denouncing his cause “in press statements, op-eds, social media and other available fora,” participate in counter-demonstrations, and organize events and projects condemning those views, paid for by the fees they earn from defending him.

The memo explains, “We generally should not agree to represent people who will not agree to sign an ethically appropriate advance waiver of potential conflicts arising from our condemnation of their views.”

That must do a lot for the attorney-client relationship. Imagine you’re being prosecuted for heckling at a high school gun control rally and the first thing your ACLU lawyer does is have you sign an ethically appropriate waiver allowing her to organize events and counter-demonstrations and condemn your views in op-eds, social media and other fora.

“In other words,” says former director Ira Glasser, “the ACLU now advises its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak. That is a balance never before recognized by the ACLU in deciding whether to take a free speech case. To deny that this is a departure from free speech policy is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.”

He’s probably still looking for a typewriter ribbon.

Irrelevant Postscript: List of “Most Visited” Articles from Reason Magazine.

1. Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech.
2. Huge Win for Everyone with a Cellphone (and for the 4th Amendment) at the Supreme Court.
3. Immigration Hardliners Lose Today in an 8-1 Supreme Court Ruling.
4. 13-year Old Charged with Felony for Recording Conversation with School Principal.
5. We Are Most Likely Alone in the Universe.

 

Judge Bludgeon rules on cyberbullying

Back in the days of the Roman Empire, the mad Emperor Caligula had the penal code placed at the top of a tall column in the Forum.  Judges soon got tired of shinnying up and down whenever they had to look up the law and started secretly improvising instead. Hence the origin of “judicial discretion.”  It was not until the invention of the file cabinet that laws were printed on paper and it began to be considered bad form to enforce them without fair notice of what they were.

So we were flabbergasted to learn from Simple Justice that the NY State Senate has just passed a bill criminalizing cyberbullying without providing a smidgen of a definition of what conduct constitutes that offense.  Surely the law has to be struck down as unconstitutional.

Fugettaboutit, says Justice Bludgeon, the controversial Brooklyn judge who tried to return Manhattan to the Indians for a refund. In a case of first impression, he writes:

Defendant Stinky K. stands charged with cyberbullying after texting 125 “Yo mama” jokes to her classmates.  As an initial matter, we reject her claim that the statute is void for vagueness. Laws are presumed to be constitutional, otherwise they wouldn’t have been passed.

To be sure, a superficial reading of the statute might suggest that it contains no definition of cyberbullying. But statutory construction must not be nitpickingly over-technical.  The Legislature is not obliged to adhere to a rigid litany, catechism or any of those other Catholic things.  As Supreme Court Justice Potter [Stewart – we stand corrected] famously observed regarding hardcore pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Obviously, any law enacted for the purpose of protecting children is by definition constitutional.

That is not to say, however, that the statute at issue does not suffer from a grave deficiency: it is not named after a child. But it is not for this Court to cure legislative oversights.

We accordingly find Stinky K. guilty as charged. Sentence will be imposed as soon as the bill is passed in the Assembly and signed by the Governor.

So ordered. Bludgeon, J.

Cake, religion and Summa [obscenity deleted] Laude

We didn’t make this up: a proud mom ordered a cake to celebrate her son’s graduation “Summa Cum Laude.”  The bakery took it upon itself to eliminate the obscene word “cum,” and replace it with dashes, as shown above.

Can’t be too careful these days. A celebratory cake was the subject of the just-now-decided Supreme Court case Masterpiece Cakeshop where a Christian Evangelical baker declined to create a wedding cake for a gay marriage ceremony, while offering to provide the couple with any other kind of baked goods. The Colorado Civil Rights Commission called the baker’s religious scruples “a despicable piece of rhetoric” of the sort used to justify slavery and the Holocaust, and enjoined him from making any wedding cakes unless he agreed to provide them for same-sex marriages. As a result, his mom-and-pop bakery lost nearly half of its business.

The Supreme Court decision cannily focuses on the Commission’s hostility to religion while ducking the issue of compelled speech. Justice Kennedy, duly invoking the dignity, respect etc. due to same-sex couples, nevertheless concluded that sneering at the baker’s beliefs “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

It’s hard to know what this limited decision means for the baker.  Presumably any same-sex couple can request a wedding cake and sue him again if he refuses, this time in front of a Commission that’s learned to be more politic in its language.

While not sharing the baker’s beliefs, we sympathize, knowing what it’s like to be hounded by a junta of “the offended.” Justice Thomas’s concurrence, recognizing that the right to speak entails the right not to be compelled to express unwanted ideas, says it all (citations omitted):

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

A contrary rule would allow the govern­ment to stamp out virtually any speech at will.  After all, much political and religious speech might be perceived as offen­sive to some. As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.

If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitution­ality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”

Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails. “A speech burden based on audience reactions is simply government hostility . . . in a different guise.”

Consider what Phillips [the baker] actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “I’ll make your birthday cakes, shower cakes, sell you cookies and brown­ies, I just don’t make cakes for same-sex weddings.” It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. . . .

Nor does the fact that this Court has now decided Obergefell v. Hodges somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted and unentitled to express a different view.”

This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.”  If Phillips’ continued adherence to that under­standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected. “T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”

— Masterpiece Cakeshop v. Colorado Civil Rights Commission (Thomas, J., concurring).

Stalkers of Lady Justice

Which of the below is not the slogan of one of the New York City District Attorney’s Offices?

1. “Committed to Public Safety, Fairness and Equal Justice.”
2. “Moving Justice Forward.”
3. “Steadfast for Justice.”
4. “To Pursue Justice.”
5. “Pursuing Justice with Integrity.”
6. “A Seedy Cesspool of Sex-Fueled Parties.”

Okay, #6 doesn’t count, since it’s not the official slogan of the Bronx DA’s Office, just an observation by one of the staff.

The correct answer is #3.  Although practically identical to the mottos of the Brooklyn, Manhattan, Bronx and Staten Island DA’s Offices, it’s the watchword of the city’s largest public defender’s office. Whose slogan used to be “Making the Case for Humanity,” a play on the double meaning of “humanity” as all people and humaneness. No longer: they’ve caught the Justice Bug. Poor Lady Justice! Whether being moved forward, pursued or steadfasted, everybody wants a piece of her.

 

Keeping Calm at Rikers Island

New York City’s jail guards are highly offended at a poster displayed on the jailhouse walls exhorting them to “KEEP CALM AND REMEMBER EGOS AND UOF [Use Of Force] DON’T MIX.”

The sign went up in response to the federal monitor’s recent report that Rikers Island guards were excessively hitting and pepper-spraying detainees.  The notice continues:

“We are rolling out training and mentoring teams as well as refresher sessions at roll calls, Wonderful Wednesdays, forums and brown bag lunches on how to make sure if you have to use UOF, it’s a Quality UOF.”

 When it comes to being shellacked, only Quality UOF will do.

“This isn’t fucking Ford Motors!” groused the President of the Corrections Officers Benevolent Association, who’d evidently not attended Wonderful Wednesday.

P.S. From a Texas jail:

h/t Alex Bunin, Harris Co. Public Defender