“The Constitution does not require Florida to join New York in la-la-land.”

Whenever a court invokes the old saw that constitutional rights can’t be stopped at the prison gate, it’s even money that the court is just about to do exactly that. The latest is the 11th Circuit’s upholding of the Florida Department of Corrections’ (FDOC) total ban on the magazine Prison Legal News (PLN). A sample of the current issue reveals what a security-threatening incendiary rag it is:

1. In the Eye of the Storm: When Hurricanes Impact Prisons and Jails, by Matthew Clarke
2. North Carolina Woman Attempts Bail Bond Scheme from Inside Jail, by Monte McCoin
3. Porn Reading Rooms in Iowa Prisons Placed on Legislative Hit List
4. U.S. Coast Guard Operating Inhumane Floating Prisons, by Christopher Zoukis
5. Wrongful Death Case Against New York Jail Settles for $101,500, by Derek Gilna
6. Nebraska Sheriffs Profiting from Jail Phone Contracts, by Christopher Zoukis
7. Phony New York Lawyer Defrauds Prisoners, Sent to Prison, by Edward Lyon
8. North Dakota: Altered Pencil in Prison Results in Weapon Possession Conviction
9. Pro Se Rhode Island Prisoner Wins First Amendment Settlement, by Derek Gilna
10. Oklahoma Lawmaker Introduces Bill to Lift Prison Smoking Ban, by Monte McCoin
11. Major Wage Ratio Gap Between Executives, Employees at Private Prisons, by Steve Horn
12. Former Michigan Prisoner Receives Over $817,000 for Wrongful Conviction
13. Virginia Federal Court Holds Nation of Gods and Earth is a Religion
14. Dying Prisoner’s Complaint Alleged Claim for Failure to Treat Hepatitis C
15. Federal Lawsuit Filed Against Oklahoma Sheriffs – All of Them, by Derek Gilna
16. Ohio: $75,000 Settlement Reached after 60-Year-Old Woman Body Slammed by Jail Guard, by Christopher Zoukis
17. Newspaper Investigation Reveals Significant Problem with Life Sentences in Arizona, by Christopher Zoukis
18. California: Governor Signs Bill to Block Expansion of For-profit Detention Centers, by Dale Chappell
19. Washington Prisoner’s Negligence Suit Settles for $75,000
20. Justice Department Failing to Assess Prison Population Reduction, Clemency and Reentry Programs, by Christopher Zoukis
21. Alabama: State Agencies Have Absolute Immunity in a Court of Law or Equity
22. Confusion Over Insanity Defense Leads One Jury to Issue Two Verdicts in Triple Murder, by Christopher Zoukis
23. $437,500 Settlement for Brutal Beating at Missouri Jail
24. The “Qualified Immunity” Doctrine Needs to be Reexamined, by Derek Gilna

Since even prison wardens know they can’t ban magazines for carrying news about the qualified immunity doctrine or problems with life sentences, they scramble to find excuses based on “penological concerns.”  A few years back, they convinced the Supreme Court that prisoners in punitive segregation can be forbidden to have even one newspaper, magazine or family photo because these objects can be made into spears, blow-guns or convenient catapults for feces without dirtying one’s hands. (We’re not making this up).  Justice Thomas fondly reminisced about the good old days of 1780 when letters and family visits were forbidden and prisoners had nothing to read but the Bible.

Justices Stevens and Ginsburg dissented, saying (in sum and substance) that if the penological concern is about fastidious throwers of feces, there’s no difference between a (forbidden) newspaper and a (permitted) Bible. Tear out a few pages of Leviticus that nobody ever reads and plop!  As for Justice Thomas’s nostalgia for that old-time sadism, the dissent retorted, “regulations that deprive prisoners of their constitutional rights will always be rationally related to the goal of making prison more miserable.”

In Prison Legal News v. Florida Dept. of Corrections, the Florida prisoncrats claimed that the magazine wasn’t being banned for its articles, but because of its ads for forbidden services, such as 3-way calling, pen-pal solicitation and exchanging postage stamps for cash.

Chief Judge Ed Carnes, who rose to fame as the Nation’s leading shill for the death penalty, issued a long, sputtering decision. It begins with a mangled paraphrase of Oscar Wilde’s epigram, “The only way to get rid of temptation is to yield to it,” apparently to make the point that prisoners follow this philosophy. Oscar Wilde! Does this Son of Alabama know who Oscar was, or why he went to jail?  Or that he wrote:

We know not whether laws be right/Or whether laws be wrong.

All we know who lie in gaol/Is that the walls are strong.

Judge Carnes then directs his sledgehammer wit to some Carpetbagger law professors who filed an amicus brief on behalf of PLN:

While we categorically reject the contention and supporting arguments of the amici, we do not mean to be unfair. The professors’ brief does have good grammar, sound syntax, and correct citation form.

What a card. Meanwhile he precluded an amicus brief from seven former high officials of the federal and state prison systems, who argued – based on their decades of experience of managing high security facilities – that the ads in PLN pose only minimal security concerns and that FDOC’s  “blunderbuss response” of banning the magazine is exaggerated. They pointed out that no prison in the other 49 states or the federal system bans PLN. In their opinion, the magazine is a valuable resource, enabling prisoners to learn about “the issues most relevant to their daily lives.”

Moreover, no connection had ever been shown between the ads and prohibited conduct. Prisoners determined to break the rules by 3-way calling or selling stamps for cash can easily find out how, through “phone calls, visits, letters, or the inmate grapevine.”  The FDOC itself admitted that the banning of the magazine for the past five years had made no difference.

In showing that no other prison bans the magazine, PLN noted that New York simply attaches a flyer “stating that the magazine may have advertisements for services that prisoners are prohibited from using.”

This provoked a full thermonuclear response from the judge:

Really? If all New York has to do to prevent inmate misconduct and crime is gently remind them not to misbehave, one wonders why that state’s prisons have fences and walls. Why not simply post signs reminding inmates not to escape? If New York wants to engage in a fantasy about convicted criminals behaving like model citizens while serving out their sentences, it is free to do so, but the Constitution does not require Florida to join New York in la-la-land.

How silly of New York to put prisoners on notice of what’s prohibited! Why not just chain everybody to the wall to make sure they don’t yield to temptation?

Well, the judge isn’t the only one who can google-search pithy quotes. Here’s one from the psychologist Abraham Maslow:

If the only tool you have is a hammer, it’s tempting to treat everything as if it were a nail.

“Come now, give the system a chance.”

 

OMG!! What’s so reliable about excited utterance?

The excited utterance exception to the rule against hearsay “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to consider ancient dogmas.” — Judge Posner, 7th Cir.

According to ancient dogmas, the stress of a startling event so completely paralyzes “the reflective capacity” as to make the person incapable of fibbing about it immediately afterwards. The judicial habit is accordingly to find that “impulsive and unreflecting responses possess a high degree of trustworthiness,” and are therefore admissible as proof of the truth of the matter uttered.

Thus, courts will consider an exclamation such as, “By Jove! I just saw Killer Joe shoot Big Dog Smith, with intent to cause death or serious physical injury, using a firearm possessed outside his home or place of business!” to be so highly trustworthy that the utterer need not even testify, let alone be cross-examined. His impulsive and unreflecting response may be proffered through anyone who heard it, and the jury may be assured that since it’s excited, it must be true.

Courts have not only been incurious about whether the excited utterance exception makes any sense, they’ve made it as elastic as a bungee cord depending on how sympathetic they are to the “victim.” Accusations of sexual misconduct, no matter how long ago the alleged event, are frequently admitted as excited utterances. When a child tells her mother that Uncle Harvey touched her poopoo last summer, and the mother calls the cops, who call the sexual assault detective, who calls a doctor, a court may apply the exception to permit all of them to testify to what the child told them. The question-begging rationale is that a sex offense ipso facto wipes out the reflective capacity for as long as it takes to get around to telling someone.

It should go without saying that the excited utterer has to have seen the startling event. But in a recent case of a street shooting, the defendant was convicted based on a faintly heard, unidentified voice in the background of a 911 call saying, “Yo, it was Twanek, man!” With typical prosecutorial logic, the People argued that the owner of the voice must have seen Twanek do the shooting, or else he wouldn’t have made the statement. The First Department duly swallowed this and found it admissible as an excited utterance.

The Court of Appeals reversed. The majority noted that, considering the number of people on the street at the time, there was no way of knowing whether this unknown voice had seen the shooter or was just repeating a crowd rumor.

Judge Jenny Rivera added that the excited utterance exception should be scrapped in the light of “advances in psychology and neuroscience.” Scrupulously substituting “they” as a singular pronoun for “he” when quoting from other decisions, so as not to exclude any possible gender, she concluded in sum and substance that when a person is under stress, they is perfectly capable of thinking up a lie, or at least getting the facts wrong. Unfortunately, since Twanek’s lawyers had neglected to make this argument, she was forestalled from reversing “on the basis that the exception should be rejected whole cloth.”

So next time the People claim that an out-of-court statement by a non-testifying witness is admissible as an excited utterance, be sure to tell the judge to abandon their habitual incuriosity and reluctance to reconsider ancient dogmas. And if they responds with the usual enthusiasm judges have for advances in psychology and neuroscience helpful to criminal defendants, tell them Judge Jenny has promised a reversal.

Exiled statues find asylum in Green-Wood Cemetery

When our dad, over his strenuous objections, died at age 89, we buried his ashes in Brooklyn’s beautiful, historic Green-Wood Cemetery. His stone bears the epitaph, “‘Tis not too late to seek a newer world,” a line from his beloved Tennyson’s “Ulysses.”  Thanks to Green-Wood’s 2-for-1 discount, we look forward to being planted there too when our time is up.

So we’re proud that Green-Wood has offered sanctuary to two victims of  the new Cultural Revolution.

One exiled statue recently rescued by Green-Wood is “The Triumph of Civic Virtue,” a monumental marble sculpture unveiled in front of City Hall in 1921. Symbolizing Good Government overcoming Vice and Corruption, it depicts a husky naked youth with a sword over his shoulder trampling two writhing creatures whose upper halves are female human and whose hair and lower halves appear to be octopus tentacles.

Mayor LaGuardia (1882-1947), annoyed at this daily reminder that he should go to the gym more often, had the statue banished to Queens. It stood for decades at the intersection of Queens Boulevard and Union Turnpike, eroded by pollution and pigeon droppings and angering such highly principled feminists as former Congressman Anthony Weiner, who called for it to be sold on Craigslist (pigeon not included).

Such philistinism outraged Richard J. Moylan, the president of Green-Wood, who had the statue restored and moved to the cemetery’s peaceful, spacious grounds.

The accompanying plaque relates the monument’s history and symbolism, patiently explaining, “In allegorical personification, male and female figures represent concepts, not actual people.”

The second sculpture non grata to be granted refuge at Green-Wood is of Dr. J. Marion Sims (1813-1883), founder of New York City’s Women’s Hospital and developer of the first successful operation for vesicovaginal obstetric fistula.  His bronze statue was deported from Central Park last month in response to vigorous protests that he had “experimented” on “unwilling” enslaved women without anesthesia. Clearly, he was an Antebellum Dr. Mengele whose statue should be melted down and made into souvenir baby shoes.

Demonstration against Sims statue 8/20/2017

Removal of Sims statue 4/18/2018

We were astonished to learn that the historical record is more complicated.

In an article entitled “The medical ethics of Dr. J. Marion Sims: a fresh look at the historical record,” Dr. L.L. Wall of Washington University points out that for 19th-century women of all races and classes, obstetric fistula was an unendurable, incurable affliction.  There’s no reason to doubt the primary historical sources showing that Dr. Sims’s first fistula patients, Lucy, Anarcha and Betsey, although enslaved women incapable of legal consent, not only gave their personal consent to the operations, but insisted that he keep trying despite his initial failures.

Obstetric fistula, the article explains, isn’t a “relatively minor condition” as Sims’s critics assert.  It’s a childbirth complication whereby the pressure of the fetus tears a hole between the woman’s bladder and vagina, causing complete loss of urinary and often fecal control.  Another physician writing in 1857 described its effects:

The poor woman is now reduced to a condition of the most piteous description, compared with which, most of the other physical evils of life sink into utter insignificance. The urine passing into the vagina as soon as it is secreted, inflames and excoriates its mucous lining, covering it with calcareous depositions, and causing great suffering. It trickles constantly down her thighs, irritates the integument with its acrid qualities, keeps her clothing constantly soaked, and exhales without cessation its peculiar odour, insupportable to herself and those all around her. In cases where the sloughing has been extensive, and the loss of substance of the tissues great, and where neither palliative nor curable means have availed for the relief of the sufferer, she has been compelled to sit constantly on a chair or stool with a hole in the seat, through which the urine descends into a vessel beneath.

Far from using Lucy, Anarcha and Betsey as guinea pigs, Sims operated on them for explicitly therapeutic purposes, was eventually able to repair their condition and publicly acknowledged the debt of gratitude he owed them for their persistence and cooperation.

It’s a convenient untruth that Sims subsequently used anesthetic for his white middle-class patients at Women’s Hospital. Anesthesia from ether wasn’t invented until a year after he performed his first fistula operations, and even then, drew considerable opposition from the medical establishment. In a public lecture, Sims stated that he never used anesthesia in fistula operations “because they are not painful enough to justify the trouble and risk attending their administration.”

“In retrospect this was certainly an unfortunate error in clinical judgment – a mistaken ‘calculus of suffering,'” comments Dr. Wall, “but it was not anesthetic racism,” as Sims’s critics charge.

Lest it be imagined that Wall  is some Confederate-flag-waving good ol’ boy defending the Male Medical Establishment, we recommend a visit to the Worldwide Fistula Fund of which he is the Executive Director Emeritus. Although obstetric fistula is now rare in developed countries, in developing countries it remains a condition affecting over 1 million women, “compared with which, most of the other physical evils of life sink into utter insignificance.”

It does no honor to Lucy, Anarcha and Betsey to portray them as nothing but victims. Despite being enslaved, they distinguished themselves as courageous individuals who intelligently chose to participate in experimental surgery to cure what would otherwise have been a hopeless condition. Dr. Sims, like anyone else, should be judged within his historical context, not to mention based on accurate facts.

As for the outcast statue, it will join Dr. Sims and his family at their burial plot in Green-Wood.

 

The Court of Appeals believes the victim (even when the jury doesn’t)

Comes now New York’s highest court with the holding that an accuser’s trial testimony constitutes clear and convincing evidence of the truth of her accusations, even though the jury found her not credible and acquitted the defendant of those charges. 

In a 6-1 opinion, with only the redoubtable Judge Rivera dissenting, the Court upheld the lower court decision putting the defendant on the internet Sex Offender Registry for the rest of his life based on acquitted charges.

Never mind that the Sex Offender Registration Act (SORA) requires that risk level be determined by evidence that is “clear and convincing.” Although that’s a lower standard than “beyond a reasonable doubt,” it’s higher than mere preponderance.  Defined as “highly probable” and “unequivocal,” it’s the level of proof required in civil cases where basic personal liberties are at stake. And you can’t get much more equivocal than accusations that the jury expressly discredited in a “he-said-she-said” sex case.

Naturally the Court doesn’t admit that it moves the goalposts for sex cases. But these days, when it comes to accusations of sexual misconduct, the standard of proof is that they were made. The Court is simply going with the flow — which by definition, is downhill.  

“Thrusting counsel upon the accused against his considered wish”

The Constitution forbids “thrust[ing] counsel upon the accused against his considered wish.”  — Faretta v. California (US 1975).

The right to self-representation embodies one of the most cherished ideals of our culture: the right of an individual to determine his own destiny. . . . Respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires. —  People v. McIntyre (NY 1974).

 One who is his own lawyer has a fool for a client. — Old Saw.

The NY Court of Appeals recently upheld a trial court’s refusal to let a defendant be his own lawyer, finding his request merely “equivocal.” Here’s the colloquy:

DEFENDANT: Your Honor, excuse me, your Honor.

COURT: Yes?

DEFENDANT: I would like to know if I could proceed as po say.

DEFENSE COUNSEL: Pro se.

COURT: In other words, you want to represent yourself?

DEFENDANT: Not just that represent myself, but having limitation with my counsel—

COURT: No, I don’t do that. You either have a lawyer, or you don’t have a lawyer. I don’t have legal advisors. You choose to represent yourself, you sit there by yourself. You want to have a lawyer, you have a lawyer. All right? August 7 for conference. August 13 for trial.

The defendant tried again later, saying, “I was asking if I could go pro se with standby counsel.” The judge, an adherent of the Let’s Get This Over With school of adjudication, said nix without further inquiry.

On appeal, Chief Judge “Suburban DA” DiFiore, an adherent of the Fiddle the Facts school of adjudication, opined that just because the defendant said he wanted to represent himself with the aid of standby counsel (which is normal practice), what he really meant was “dual representation” (which is verboten).  Therefore, the trial judge was right to blow him off.

Judge “Bad Boy” Wilson disagreed.  True, a pro se defendant isn’t constitutionally entitled to standby counsel. But just asking for one doesn’t cancel out the request to go pro se.  Wilson compared it to ordering a burger with fries, imagining the following scenario:

CUSTOMER: Sir, excuse me, sir.
CASHIER: Yes?
CUSTOMER: I would like to order a Big Burger.
CASHIER: In other words, you want two all-beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun?
CUSTOMER: Not just that, but I would also like fries with it—
CASHIER: No, we don’t do that. You either have a Big Burger, or you have fries. We don’t serve combinations. You choose a Big Burger, you sit there without fries. You want fries, you have fries only.
All right?
Next customer.

This really pissed off the Chief Judge, who called the dissent’s “fast food” analogy “inapt and inappropriate.” ” Whatever its intended effect,” she sputtered, “the use of such a rhetorical device trivializes the constitutional rights of defendant”  (indignant italics added).

But. . . but. . . the dissent was upholding the right! It’s the majority who decided that a defendant unwittingly forfeits it by not reciting the exact words of the magic formula.

The elephant in the room, to coin a phrase, is that nobody wants to see serious criminal charges defended by an amateur.  For all the pieties about individual autonomy and determining one’s own destiny, you really don’t want your client going to jail “under his own banner,” i.e., because of a crappy defense.  Even the most overworked public defender could have negotiated a better deal for Jesus or Socrates.

The trial judge in NY’s 1975 case, supra (where the defendant asked to go pro se with a lawyer on the side and nobody found it equivocal), was more candid.

COURT: You know exactly what’s going to happen. The defendant will start questions, there will be an objection sustained. The defendant will start looking at the ceiling and looking at the wall, and he won’t know what to do.

DEFENDANT: I wouldn’t.

COURT: He thinks he’s probably the greatest lawyer and God’s gift to the legal profession. That comes after talking with three or four jailhouse lawyers. But you and I, Mr. Legum (defense counsel) know that he’s not a lawyer.

DEFENSE COUNSEL: The defendant asks for permission to speak to you himself as to why he wants to represent himself.

COURT: No, he can talk through you. He can tell you what he intends to do.  He doesn’t know at the very outset — I’m being asked to permit a man to defend himself when he doesn’t know at the very beginning that he’s not under any obligation to defend himself. He said to you, and I heard him, that he’s under an obligation to defend himself.

Is the jury on the way?

DEFENDANT: F*** [sic] the jury. I’m not going to trial. (Whereupon the defendant jumped up, knocked the chair over).

Ok, our clients are masters of their fate and captains of their soul, but does that mean they should have a fool for a lawyer? We f***ing don’t have the answer.

Bronx judge finds solution to trial delays: eliminate attorneys

A Bronx judge, fed up with the prosecution’s shilly-shallying while the accused waited in jail for three years, threatened to conduct the trial sans attorneys, according to In Justice Today.

Not since Columbus and the egg has there been such a brilliantly obvious solution to what had hitherto appeared to be an unsolvable problem. Here’s how an attorney-free trial would look:

Judge: Ladies and Gentlemen of the jury, the defendant is charged with murder. Since there are no attorneys, there will be no opening statements, arguments or witnesses. The defendant, of course, is present.

Defendant: I’m innocent.

Judge: [to jury] I will now charge you on the law.  The defendant is presumed innocent unless the People prove his guilt beyond a reasonable doubt. What’s your verdict?

Jury: (shrugging) Not guilty, what else?

Columbus and the egg. Engraving by William Hogarth.

Appellate Squawk celebrates National Poetry Month

In a drive to remedy the disproportionate underrepresentation of poetry, April has been designated National Poetry Month. Schoolchildren will march on Washington chanting, “Make poems, not tests!”  The ABA will henceforth require lawyers to participate in remedial poetry readings. The NY Court of Appeals has ordered all briefs filed in April to be written in iambic pentameter.

Poetry has traditionally been a staple of summation arguments, from prosecutor Marc Antony’s “For Brutus is an honorable man,” to defense counsel Portia’s “The quality of mercy is not strained but falleth like the gentle rain from heaven,” to Johnnie Cochran’s immortal, “If the glove don’t fit, you must acquit.”

A more recently developed legal-poetic form is the jingle in personal injury lawyer ads. These feature such gems as, “We turn your pain into rain,” showing a happy client being showered with dollar bills, or the blank verse, “I am the hammer/ They are the nails,” referring to slow-paying insurance companies. Recognizing that a good poem admits of multiple interpretations, one firm declaims, “If your wound ain’t mending/ We’ll give you a happy ending.”

An entire blog devoted to satirical legal verse from haiku to limericks is MadKane who claims to be a “recovered” lawyer, although anyone who comes up with stuff like this is clearly on the verge of relapse:

What the Law’s About [to be sung to “The Hokey Pokey”]

You have to dot those i’s.
You’ve got to cross those t’s.
You have to seem so wise.
You must justify those fees.
And if you’re smart and lucky
You will turn your case around.
That’s what the law’s about.

For the client-centered, the richest source of law poetry is the booming-from-cars genre, such as 2pac’s “16 on Death Row,” whose narrator laments, “Dear Mama, these cops don’t understand me/ I turned to a life of crime ’cause I came from a broken family,” and ends up advising, “I’m convinced self-defense is the way/ Please, stay strapped, pack a gat every day.”

We enthusiastically recommend a dip into Poetry of the Law, Kader & Stanford, eds., for everything from Sir William Blackstone’s “A Lawyer’s Farewell to His Muse,” (poet who can’t get a job except at Burger King reluctantly decides to go to law school), to Lewis Carroll’s “The Barrister’s Dream” (Snark defends pig charged with deserting its sty), to Martín Espada’s “The Legal Aid Lawyer Has an Epiphany” (on finding his storefront office window smashed).

And for those of us constantly defeated by judicial decisions copied straight from the People’s brief, there’s Alexander Pope’s defiant salvo, “‘Tis hard to say if the greater want of skill/ Appear in writing or in judging ill.”

Happy National Poetry Month!

The ultimate bail reform: shoot the client

The injustices of the for-profit cash bail system are obvious. It jails people who’ve been accused — not convicted — of a crime, just because they can’t pay the often exorbitant fees set by judges. The billion-dollar bail bond industry flourishes while the unransomed may be held for months or even years awaiting trial, with the taxpayer footing the even more exorbitant cost of jailing all those people.*

Washington D.C. eliminated the money bail system over 20 years ago, replacing it with non-incarceratory conditions. The result is an 88% return-to-court rate — better than the national average. New York is talking about doing the same.

But an Oklahoma bailbondsperson found a simpler solution:  shoot the client.

Ms. Chasity [not a typo] Carey, running a bail bond office in downtown Stillwater, summoned her client Brandon Williams to her office, saying she wanted to buy his car for her son.  Her real aim was to revoke Brandon’s bail – apparently he wasn’t fully paid up – and take him to jail.

The surveillance video shows Brandon, a cheerful young redneck in a wife-beater and baseball cap, coming in with some paperwork and taking a chair in front of Chasity’s desk.  He shakes hands with her son, a tall skinny teenager, saying, “You’re [just] a boy, ain’tcha?” He chats amiably about cars, advises the kid never to drive a Mustang wearing heavy boots. . .

and, making himself at home, removes one sneaker to examine a blister under his sock.

Chasity, a tough 42-year-old cookie in jeans and a Budweiser t-shirt, gets up from her desk, locks the door behind Brandon and orders him to stand up against the wall. Brandon complies, still holding his shoe, asking in bewilderment, “What’s going on here?”  Chasity orders him to turn around to be handcuffed.

“What? What do you mean? What are you doing?” asks Brandon. “I’m not getting no cuffs.”

“Actually, you are,” says Chasity. Her son approaches with the cuffs.

“Why are you doing this to me?” protests Brandon. “Open the door.”

Chasity and her son block the door.  Brandon turns away from them and walks past the desk and off-camera to get out through the window. The video shows Chasity going behind the desk, pulling away the desk chair, opening the center drawer and taking out a gun.

She aims the gun with two hands and fires a bullet into Brandon’s back.

You hear a cry of “No!” Then silence.

The son cries, “Mom, you just shot him!”

“I did,” Mom answers calmly. “Call the police.”

The boy is distraught. “911,” says Mom helpfully.

Chasity, apparently unaware of what the video showed, claimed that Brandon had tried to take the gun from the desk drawer, but that she got to it first and shot him in self-defense. The county prosecutor charged her with first-degree murder.

Chasity was defended by Stevenson Law Firm whose roadside billboard reads, “Just Because You Did It Doesn’t Mean They Can Prove It.”  Mr. Stevenson triumphantly noted that the one-count charge gave the jury only the choice between finding premeditated murder and acquittal. Since “premeditated” under Oklahoma law apparently requires proof that the defendant planned the murder sometime the night before, preferably in writing, the jury acquitted.

Chasity is reportedly considering a career change, since her bail bond business has likely taken a dip. For some reason, Stillwater defendants prefer to take their chances in jail.

 

*See the 25-minute documentary, “Inside America’s For-Profit Bail Industry.”

 

Relax, baby, I’m gay.

The Second Circuit has just held that it was wrong to fire a skydiving instructor for telling a customer he was gay.  Under Title VII of the federal law, a person can’t be “discharged because of a homophobic customer.”  Zarda v. Altitude Express, Inc.,  Skydive Long Island.

Sounds perfectly sensible, although Title VII, unlike New York law, doesn’t expressly designate sexual orientation as a protected category. But the court applied the principle of unio non sequitur ipsi dixie to construe the statute according to evolving standards of penumbras and concluded that sexual orientation is a subset of sex.

The dissents didn’t buy this.  Although they wrote 100 pages proclaiming their fealty to oppressed minorities, complete with learned quotations in ancient Greek, dazzling references to the Frankfurt School and indignant reminders of the days of “Help Wanted: Negroes need not apply,” they nitpickingly concluded that if Congress wants to include sexual orientation in Title VII, they have to say so.

Simple Justice says the skydiving outfit doesn’t have the money to appeal to the Supremes. Still, we could imagine them reversing, perhaps invoking the principle of e pluribus loquitur. (NB: for every canon of statutory construction, there’s always one that says the opposite). Justice Thomas would write a concurrence saying there was no such thing as sexual orientation in 1789, and the three ladies from New York would issue a ringing defense of equality and social justice.

The real problem with the Second Circuit’s decision is that Zarda wasn’t “discharged because of a homophobic customer.” He was fired because a woman customer complained that he’d touched her inappropriately and that he’d tried to excuse this by saying, “Don’t worry, I’m gay.”

In other words, he was fired for allegedly being a jerk, a category not protected under Title VII.

Here’s the story: 19-year old Rosanna, a waitress from Long Island, celebrated her birthday by going on a skydiving adventure with her boyfriend. Recreational skydiving, as we discovered from our Google research, doesn’t require any special skills, such as remembering to pull the parachute cord. Instead, the customer is harnessed under a “tandem master,” illustrated below, who takes care of these details:

photo by http://www.go-jump.oceanside.com

Rosanna had no problem with being harnessed to tandem master Zarda and laughed off the hilarious jokes from the other instructors suggesting that her boyfriend ought to object. But as they sat in the plane waiting to jump, Zarda put his hand on Rosanna’s hip and his chin on her shoulder in a way that made her uncomfortable.  “It was unnecessary,” she said in her deposition. “I mean, he didn’t have to rest his hand on my hip. Once you’re fastened, you’re fastened and you can put your hands on your side.”

Zarda apparently realized that she was annoyed, because as they were drifting down, suspended from the open parachute, he said he hoped he hadn’t made her uncomfortable on the plane, but “Don’t worry, I’m gay.” He then related that he’d just broken up with a man.

Rosanna’s boyfriend, who’d witnessed Zarda’s nuzzling on the plane and learned that she was upset, told Zarda’s boss. The couple didn’t threaten legal action, demand that Zarda be fired or complain that he was gay. Their beef was simply that he’d ruined Rosanna’s birthday skydive with his unprofessional behavior. The boss, who’d previously had complaints from women about Zarda, fired him.

Now, it doesn’t take a #MeToo crank to see that if a man realizes that his touching has made a woman uncomfortable, it only adds insult to injury to say, “Don’t worry, I’m gay.”  The insolent message is, “You have no right to object to my touching, because I’m not sexually attracted to you.”

In fact, Zarda’s complaint filed in federal court makes exactly that argument. While not denying the allegation of gratuitous touching, he finds it  laughably irrational that it could be considered “inappropriate.” Because, he explains, since he’s gay, he couldn’t have done it “to gratify himself sexually.” Therefore, according to him, he was fired because of a complaint by a “homophobic person who objects to being near a gay man.”

The Second Circuit swallowed this whole, assuming without a word of discussion that Zarda was “discharged because of a homophobic customer.”

The lesson, ladies, is that if you find yourself being pawed by a gay man, don’t be a homophobe! Console yourself that he’s not being gratified sexually.

 

Deadly meteor expected to demolish Earth any minute

Having a disproportionate effect on young black males.

Appellate Squawk’s Institute of Continuing Legal Education

Addition and Subtraction for Attorneys  Explore the mysteries of arithmetic in this empowering seminar guaranteed to improve your ability to calculate everything from billable hours to SORA points. Prerequisite: Introduction to Counting.

How to Use Comas and Other Punctuation The nuts and bolts of proofreading.

Advanced Strategies for Filling Out Forms Hands-on skills workshop with special attention to online forms that trap you into an endless loop of “that is not a valid response.”

What Every Lawyer Needs to Know about Girl Scout Cookie Compliance Regulation Compulsory financial transaction in the workplace: First Amendment infringement or narrowly tailored measure to prevent girls from becoming extinct? Does having last year’s cookies in your desk drawer confer immunity against future compelled purchases?

Critical Issues in Document Reproduction When do they have to give you a new toner cartridge instead of telling you to shake up the old one?

Recent Developments in Pigeon-feeding Prohibition Law Does a finding of breadcrumbs in a shopping bag constitute reasonable suspicion? Faculty includes representatives of the growing  #We.poop.on.your.buildings movement.

Navigating Best Practice Core Value Task Force Metrics for Stakeholders Your window of opportunity to leverage the exciting cutting-edge gibberish impacting today’s most solutions.

Vituperation for Appellate Attorneys  Tired of punting, “respondent’s assertions are unsupported by the record”? Learn new and exciting ways of calling your adversary a goddam liar and the trial judge a fool.

Hot Topics in Jury Selection: Getting the Liberals to Keep their Mouths Shut “Does anyone think this crime is trivial?” the prosecutor sweetly inquires. You watch helplessly as your best prospective jurors walk into the trap. “He’s on trial for shoplifting a toothbrush from Walmart? Are you kidding?” they chortle smugly, thereby getting themselves instantly kicked off the panel and leaving you with a jury of bring-back-public-flogging types.  Emphasis on mime and interpretive dance. 

Coping with the Troglodyte Judge  When are tranquilizer darts legal?

Bench and Bar Dialogue. Pursuant to the Chief Judge’s Excellence Initiative, all judges are required to listen to attorneys’ suggestions for reform. Sold out through March 2025.

ICE, ICE, baby!*

“It irritates me that a politician who has never held a badge and a gun, who doesn’t understand what we do every day, makes a decision of putting their own political careers ahead of the health and safety of a law enforcement officer.”  — ICE Acting Director Thomas Homan excoriating sanctuary cities and critics of the proposed border wall.

The ICEking’s notion that holding a badge and a gun is a qualification – apparently the only qualification – for deciding immigration policy is particularly apt,  considering the reputation of ICE agents for mislaying their badges and guns.

Back in 2016, the news site Complete Colorado reported that between 2012 and 2015, employees of ICE, TSA and Customs and Border Protection (CBP) had managed to lose over 1,300 badges, 165 firearms and 589 cell phones.

A subsequent audit by the Office of the Inspector General found that these custodians of our borders had lost 2,142 “highly sensitive assets” between 2014 and 2016. Included in that total is 228 firearms, 1,889 badges, and 25 secure immigration stamps.”

The audit reports that in one instance, two safe and healthy ICE officers left their guns in their backpacks on the beach when they went for a dip. Returning refreshed and ready to pick up more aliens, they were astonished to find their qualifications gone!

Not to be outdone, a CBP officer “left his backpack in an unlocked gym locker. His wallet and government badge were inside the backpack, and they were gone when he returned to the locker.”

So if you’re wondering why our immigration policy is so f*ucked up, it’s because here’s who’s making it:

 

* (if you’re too old or too young to remember – a song by rapper Vanilla Ice).

Punch & Judy’s easy answers to everything

Trigger warnings for courtrooms

“We understand that even the thought of an individual coming to campus with the views that Mr. Shapiro [a twerpy  conservative political commentator] expresses can be concerning and even hurtful and that’s why we wanted to make you aware as soon as we were informed.  In the meantime, please utilize the many campus resources available to you should you want to talk through your feelings about this issue, including my office, the Cultural Centers, the Dean of Students Office, and CMHS [mental health services], if necessary.”

-Email to students from the Diversity Officer, U. of Connecticut.

Scene 1: Judge Bludgeon’s courtroom.

Judge: [to prosecutor]: Ms. Tightskirt, you may call your first witness.

ADA Tightskirt: Thank you, Judge.  I call Officer Blow.

Officer Blow: (testifying) On or about November 3rd, I was driving in a marked vehicle through a microaggression-prone neighborhood when I observed – –

Defense Attorney: (raising his hand) I’m offended!

Judge: On what ground, Mr. Shirttail?

Attorney Shirttail: The thought of an individual coming to this courtroom with the views that Officer Blow will express about my client is concerning and even hurtful!

Judge: Very well, we will adjourn to give defense counsel the opportunity to talk through his feelings about this issue in my chambers, at the Bar Association, with the Chief Judge and Defense Mental Health Services.

Scene 2: Same courtroom two years later.

Judge: Thank you for your patience, members of the jury. Defense counsel has completed talking through his feelings. We understand it may have been a hardship to wait in the back room for two years, but jury service is the highest civic duty.  Ms. Tightskirt, you may call your witness.

ADA Tightskirt: (bursting into tears) I can’t, Judge. The thought of an individual coming to this courtroom with the views that Attorney Shirttail will express about my witness is concerning and deeply hurtful.

Judge: Ladies and gentlemen, we will adjourn to give Ms. Tightskirt the opportunity to talk through her feelings about this issue in my chambers, with the Prosecutor’s Benevolent Association and District Attorney Mental Health Services.

Defendant: Oh no, not another two years! I’m willing to plead guilty in exchange for a promise that this is a safe space where I won’t be judged.

Judge: Is that agreeable to the parties?

Both counsels: Absolutely!

Judge: Thank heavens for our college educations!  Case dismissed.

 

 

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

Last week Governor Cuomo offered the judges a raise, but with strings attached: they have to promise to keep their courtrooms open from 9 to 5.

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

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

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

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

Seven dirty scientific words

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

Scientific disease control in consideration of community standards and wishes.

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

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

Here are seven words that should be banned in court:

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

 

 

The Case of Masterpiece Cakeshop

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

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

    

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

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

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

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

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

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

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

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

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

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

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

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

hurley-v-irish-american-gay-lesbian-and-bisexual-group-of-boston

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

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

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

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

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

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

Here’s Phillips’s account:  Youtube video

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

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

 

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

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

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

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

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

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

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

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

Here are some of the questions asked:

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

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

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

What would have made the waiting experience better?

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

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

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

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

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

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

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

Did the judge show bias in favor of the prosecutor?

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

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

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

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

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

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

An updated version appears in The Crime Report.

Maestro James Levine

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

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

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

Millions of us have been inspired for most of our conscious lives by James Levine as a pianist and conductor.  Now this insane society is ready to annihilate him with no one so far uttering a peep in his defense.

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

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

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

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

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

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

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

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

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

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

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

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

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

They might as well object to the tide coming in.

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

People v. Boone