Court admits expert water-dunking testimony as relevant, helpful to jury.

 The trial court did not abuse its discretion in admitting expert testimony concerning defendant’s failure to pass the water-dunking test. Dr. Brimstone, who has testified in over 200 witch trials, was plainly qualified to explain to the jury that immersing a suspect in water has long been accepted by the forensic dunking community as a reliable technique for determining guilt.  Defendant failed to proffer scientific research supporting his criticisms of dunking methodology, which in any event, go to weight, not admissibility. It is well-established that admissibility is firmly within the sound discretion of the judge who can admit whatever the hell he wants so long as it’s been admitted before.  We find no error where, as here, the testimony was clearly relevant to a matter at issue and helpful to the jury in reaching a guilty verdict.  — United States v. Serious Science (2017).

We stole this idea from Judge Nancy Gertner (Ret.), famous for her caustic wit when it comes to pseudo-science in the courtroom. The occasion was the Innocence Project’s 25th Birthday bash, celebrating a quarter of a century of exonerations, but also puzzling over why they’ve made hardly a dent in everyday judge-think.

Another refreshingly forthright voice at the party was Chief Judge Harry Edwards of the DC Circuit, who oversaw the National Academy of Sciences Report in 2009.  The NAS Report, if you remember, rocked the criminal justice system by exposing forensic “science” as nothing but the opinions of cops in labcoats. “Just being based on science doesn’t make it scientific,” said Judge Edwards. “That’s like saying a movie is based on a true story.”  “Experts” testifying to “100% certainty” that a bullet, footprint, hair or bitemark “matches” the defendant’s gun, shoe, head or teeth is just humbug.  No matter how carefully you peer through a microscope, it’s meaningless to say that two objects are similar if you don’t have a database and statistics to know what similarity means.

In other words, it’s like declaring a match between two faces because they both have two eyes and a nose.

Gertner and Edwards agonized over why neither the NAS Report nor the even more devastating 2016  PCAST report has had so little effect in the courtroom. “It drives me completely out of my mind that judges are still admitting bitemark testimony,” said Edwards. “It doesn’t matter whether the lab follows standardized procedures if the whole field has never been shown to be valid or reliable.”

Noting how the present administration has put forensic science reform under the control of the Department of Justice, Edwards called the situation “a nightmare.”  Reform can’t be left in the hands of prosecutors, “who created the problem in the first place,” he said.  There has to be an independent agency of “real scientists” to create “a culture strongly rooted in science.” But the DOJ snuffed out the burgeoning National Commission on Forensic Science and replaced it with an in-house “working group” headed by a career prosecutor who thinks “the jury is still out on bitemarks.”

“And that’s why we’re not going anywhere,” said Edwards.

Both judges agreed that criminal defense attorneys need to take more initiative in challenging pseudo-science. Gertner recalled her frustration at hearing an arson expert testify like this:

Expert: I had Billy the Dog inspect the scene of the fire. I looked into her eyes and saw that she was telling me it was arson caused by a fire accelerant.

Judge: (to defense lawyer) Any objection?

Lawyer: No, judge.

Expert: I could tell by the position of Billy’s tail that she wanted me to know the fire was ignited by a petroleum distillate so as to collect insurance on the property.

Judge: (being driven completely out of her mind) Any objection, counsel?

Lawyer: No, judge, I’m good.

Edwards and Gertner were unsparing of their colleagues. “Non-science is enshrined in judicial opinions,” said Edwards. Courts simply repeat experts’ claims that their field has a zero error rate. No scientific discipline has a zero error rate. “Judges will not get off their duffs until real scientists come in with real studies,” he concluded.

Gertner saw the problem as that trial judges are never reversed for admitting evidence so long as there’s precedential authority for it. “Courts conflate legal precedent with general acceptance in the scientific community,” she said. “Someone needs to be reversed for admitting shoeprint or bitemark testimony.”

She castigated the judicial “dodge” of saying that the discrediting of these forensic disciplines “goes to weight, not admissibility.”  What if the prosecution proffered expert testimony on dunking? Would it be within the judge’s sound discretion to admit it?

 

Chief Judge orders prosecutors not to be crooked and defense lawyers not to be incompetent

The Chief Judge adopted the “groundbreaking recommendation” of the  NY State Justice Task Force Report  that from Jan. 1,  all New York State trial judges must issue an order in every criminal case directing prosecutors to disclose evidence helpful to the defense. Judges must also order defense counsel to provide competent representation, which means having “a reasonable knowledge” of criminal and evidentiary law. 

We snagged a member of the Force who agreed to speak to us anonymously.

Squawk: Seems like there’ve been several Task Forces about the criminal justice system over the past few years. How do they work?

A. The procedure is that we periodically meet for lunch at a big law firm and tell each other how wonderful we are. Then we issue a groundbreaking recommendation that makes the front page of the NY Law Journal and is never heard of again.

Q. But surely your recommendations about prosecutor misconduct will have some effect?

A. Darn tootin’. The first thing we decided was that “prosecutor misconduct” is an offensive, discriminatory term that should no longer be used.  Unless you can prove beyond a reasonable doubt that the prosecutor acted from evil-minded conscious malicious premeditated wickedness.

Q. What should normal prosecutor misconduct be called?

A. The correct term is prosecutorial oopsy-daisy.

Q. How do prosecutors decide what evidence is favorable to the defense?

A. Same way you decide how many unicorns are in your garden. Favorable evidence is an imaginary creature dreamed up by defendants. If it existed, there wouldn’t be a prosecution.

Q. What about other kinds of prosecutorial oopsy-daisy? Let’s say the prosecutor materially misrepresents the evidence on summation?

A. That certainly calls for a good scolding. Why, only last week a case came out where the prosecutor told the jury, “the signs of defendant’s unbridled obsession were still on him in the form of a white t-shirt covered in the victim’s blood,” when there was actually nothing but three tiny droplets. The Appellate Division said it was a gross exaggeration and improper.

Q. And reversed the conviction?

A. Of course not. That prosecutor has suffered enough.

Q. What about your recommendation that defense lawyers have a “reasonable knowledge” of the law? Isn’t that setting the bar awfully low? What if an airline pilot announced, “Ladies and Gentlemen, I have a reasonable knowledge of how to fly a plane?”

A.  Are you suggesting that the already-overburdened court system should allow a new trial just because the defense lawyer didn’t know what s/he was doing?

Q.  Well, sort of.  How do you expect change if courts never reverse convictions for  prosecutor misconduct or defense counsel incompetence?

A. Who said anything about expecting change?

The elephant in the room

 

“Hands up, motherf*cker! This is a request for information!”

“The fact that defendant may have been the only person in the photographic lineup wearing white sneakers does not render the lineup unduly prejudicial  – even though the victims’ description of the perpetrator included white sneakers – as the clothing at issue is not unusual and is an extremely common item of clothing.” People v. Campbell (AD1 2017).

And if  that’s not enough to show the lineup wasn’t suggestive, the definitive proof is that “two of the four victims were not able to identify defendant.” Apparently a lineup isn’t suggestive unless the suspect is so conspicuous that it’s impossible not to pick him out.

Fortunately, we don’t have to worry that “defendant” (why the article-deprivation?) was misidentified. He was “near the crime scene” (i.e., in the neighborhood) when shots were fired “and matched the general description of the suspect” (i.e., male black).

Did that give the cops probable cause to arrest, or reasonable suspicion that he’d committed a crime, or even “a founded suspicion that crime is afoot”?

Doesn’t matter, said the court, because when they ordered him “to stop and put his hands up in the air,” that was a mere “approach to request information.”

Moral: There’s no such thing as an unreasonable search and seizure if you’re guilty.

Approach to request information

“Give me a lawyer, dawg.”

The Louisiana Supreme Court recently decided that a suspect in custody had failed to unequivocally invoke his right to counsel, based on his statement transcribed as, “If y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

The court found it obvious that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel.”

We’re not making this up.

h/t to Simple Justice 

From an alert reader:

President Trump takes to the street

We donated a dollar and he blew us a kiss.

P.S. Squawk has gone legit! See us in “The Crime Report,” the online zine of John Jay College of Criminal Justice.

 

 

Squawk is interrogated

Lenny Bruce complained that cops would go to his show, write down every word of his routine and then read it aloud in the Grand Jury, completely ruining his lines. Although not remotely in the league of that great iconoclast, we thought of him while being forced to listen to our interrogator – a Barbie doll from a notoriously anti-labor law firm retained by our employer – reading aloud our post “Are you a cissie?” “What did you mean by that?” she kept wanting to know. “Yes, you can explain a joke, yes, you can, yes, you can!”

She also wanted the emails of the subscribers to the Squawk.  But we followed the sterling example of the NY Public Library refusing to disclose the identity of its library card-carriers to Homeland Security. Our readers are safe with us.

All because of some humorless prigs who got pissed off at our poking fun at their “trainings” advising us to quiz our clients about gender issues.

After an hour and a half, Barbie finally came clean and told us what she wanted us to admit: that a reasonable person could read our blog as saying that transgenders are “a myth.” We didn’t understand. They’re perfectly visible and tangible, how could they be a myth?

But now we get it. The blog expresses the dangerous, unacceptable notion that there could be times  – for instance, when you’re accused of a crime or defending someone accused of a crime – that gender issues aren’t that important.  Maybe we’re wrong, but to spend thousands of dollars to investigate us for saying so? Really

P.S. Many, many thanks for the blawger support from Simple Justice  Windy Pundit and Defending People.

Privacy for me but not for thee

 Here we see NYPD Police Officer James Frascatore using the “straight arm bar takedown” on Mr. James Blake whom he mistook for a suspect in a credit card scam. Not only did he have the wrong man, Mr. Blake was a retired world-class tennis pro, apparently doing nothing more than “fidgeting with his phone and looking around.”

Last week P.O. Frascatore had a disciplinary hearing – in front of another NYPD officer, of course – where he faced the draconian punishment of losing some vacation days.  A retired NYPD cop testified, with no apparent irony, that Frascatore’s actions were “entirely in keeping with his training.”  When the retiree was asked if he himself had been part of a ticket-fixing scandal a few years back, the judge cleared the courtroom, citing Civil Rights Law 50-a, which shields cops’ personnel records from disclosure.  Public activists protested that this was a terrible misuse of the law.

Maybe so, but why impeach the credibilty of a witness who’s publicly admitted that the NYPD trains its cops to go around doing the straight arm bar takedown on people without first finding out who they are? What’s a little ticket-fixing compared to that?  The guy should be a star witness for the prosecution in every police brutality case.

The People invoke the same Civil Rights law as an excuse to stamp “Confidential” on their briefs in sex offense cases without even the silly formality of a judicial ruling.  Of course they could refer to the complainants by their initials, but they prefer to splatter their names all over the brief and then declare it off-limits to the public.  Considering what a rich source of dubious convictions sex prosecutions are, it’s no wonder that the People want secrecy. It’s called CYA.

Let’s remove offensive statues from Central Park

Inspired by a recent video of students pulling down, kicking and spitting on a statue of a Confederate soldier, we took a tour of inspection to similarly purge Central Park.  The first offender we came across was Alice in Wonderland:

In case you were trigger-warned off reading the book, Alice was an unsupervised child who imbibed hallucinogenic substances (note the conspicuous mushroom motif) .  She’s flanked by the March Hare and the Mad Hatter, insensitive portrayals of the mentally ill. Worst of all, her creator Lewis Carroll should be Level 3 under SORA, if not in civil commitment, for his nude photographs of minors.  Hey, hey, ho, ho, Alice in Wonderland has to go!

Next is Hans Christian Andersen, another child-welfare-endangering figure. You may think “The Ugly Duckling” is a wholesome inspirational tale for late bloomers, but what about “The Tinder Box,” which is about the sexually motivated abduction of a princess by a soldier who, when her parents object, has them torn to pieces by dogs? Ho, ho, hey hey, Hans Christian Andersen must be taken away!

Then there’s Balto, the lead dog of a sled team that rushed serum from Anchorage to Nome to stop a diphtheria epidemic. (Spoilsports suggest this was a publicity stunt: apparently a pilot offered to fly the serum in, but was told to mind his own business).  The question, to which the answer is obviously “no,” is whether humans may enslave animals to pull sleds. One, two, three, four: Balto shouldn’t be in Central Park any more!

“Cleopatra’s Needle” is of course a raw symbol of patriarchal domination.

Here are some Central Park sculptures that previous generations removed.

Simon Bolivar 1884 (replaced by a statue looking less like Don Quixote).

“Auld Lang Syne” 1866.  Two men drinking and holding hands. The  19th Century wasn’t ready for this.

Allegorical figure of Commerce holding the symbol of medicine. The AMA objected.

Boy and Swan 1863. Removed by “Mothers for Megan’s Law.”

Addendum contributed by alert reader Josephine (see below).  This North Carolina chicken statue was mysteriously stolen. The news report reads: “It’s three feet tall and made of concrete, and while the base was recovered not long after the theft, the bird itself is still missing. Perhaps more mysterious is why the chicken statue existed at all.”

When is parody a crime? When nobody gets it.

One of the most volatile controversies of our time is whether the Dead Sea Scrolls were written by the Essenes, an ascetic community living around 100 B.C.  Given the public’s strong feelings on the question, it was only a matter of time before somebody made a federal case of it.

The defendant in Golb v. NY State Attorney General (2d Cir. 2017) is not, as you probably assume, Professor Golb of the University of Chicago, whose theory that these fragments found in desert caves were written by non-Essenes threatens to set the Dead Sea Scrolls establishment on its head. Rather, the target of the Manhattan DA’s 51-count indictment was the professor’s loyal son.

Miffed at the silent treatment the academic coterie was giving his father, Golb fils sent out a bunch of emails purporting to be from the leading machers of the Essene Theory. Adopting the high tone of academic debate, young Golb had them referring to his father as “Chicago filth.” And, in a brilliant stroke of reverse psychology, he attached a link to an article (also written pseudonymously) called http://www.nowpublic.com/culture/plagiarism-and-dead-sea-scrolls-did-nyu-professor-snitch-chicago-historians-work, and implored the recipients to keep it under wraps. “Every effort must be made to prevent this article from coming to [students’] attention,” the emails warned. Another message to NYU’s student newspaper exhorted, “I must ask you not to publish a word about this.”

Naturally the emails went viral and Professor Golb was catapulted into the headlines.

Golb Jr. argued that this was satire and parody, a defense we can certainly identify with. But the Court of Appeals solemnly found intent to commit “real harm,” citing the authority of that great jurist Iago, “He who steals my purse steals trash. . . . But he who filches from me my good name. . .  makes me poor indeed.” Apparently forgetting that Iago was the villain in that play, and that he was saying this to fool Othello into doing real harm to Desdemona and Cassio. So it’s meant to be like, you know, ironic? Not some legal precept?

The Second Circuit didn’t do much better. “Golb misunderstands the genre,” they instructed.  “While it is true that parody enjoys First Amendment protection notwithstanding that not everybody will get the joke, it is also true that parody depends on somebody getting the joke; parody succeeds only by its recognition as parody.” Holy cow! You mean the difference between crime and parody is whether the joke falls flat?

Well, if Golb the Younger wants to seek cert from the Supremes, he can quote Appellate Filth. We got the joke.

Thoughtfully prosecuting your client

Recently received from our employer (we’re not making this up):

“[Public Defender] urges and expects employees to report harassing and discriminatory behavior of third parties, including clients. . . . Rest assured that the response of [Public Defender] to clients who engage in offensive or inappropriate conduct will be a thoughtful response, with due consideration being given to the personal circumstances of the client and the totality of the situation.”

Scene: Judge Blow’s courtroom.

Defendant: Judge, I want a new lawyer!

Judge: You’re indigent, you don’t get a choice.

Defendant: But she’s sent me a summons to appear for questioning before the Public Defender Anti-Discrimination & Harassment Committee!

Judge: Is that true, Ms. Goosestep?

Ms. Goosestep: Absolutely, Judge! He called me a- a – a – (chokes up) an overbearing bitch!

Judge: Well, I’ll certainly remember that at sentencing.

Defendant: How can my own lawyer be bringing charges against me?

Judge: Rest assured, that’s merely a thoughtful response, with due consideration being given to your personal circumstances and the totality of the situation.

Ms. Goosestep: Yeah. I’m entitled to a harassment-free workplace!

Defendant: But I’m entitled to conflict-free representation!

Ms. Goosestep: My entitlement’s bigger than yours!

Defendant: Is not!

Ms. Goosestep: Is so!

Defendant: Is not!

Ms. Goosestep: Is so!

Defendant: Your mama’s so fat, when she goes to the zoo the hippos call her sista.

Ms. Goosestep: Your mama’s so culturally insensitive, she’s still saying “he or she” instead of “they.”

DA:  Now, now, Ms. Goosestep, surely your client has mitigating circumstances. You said so yourself when we charged him with burning down a kindergarten.

Ms. Goosestep: What? Are you telling me to suck it up? You misogynist, sexist, un-woke, cis-gendered pig! I’m reporting you to the Diversity Officer!

Judge: All right, all right, I’ll appoint a new lawyer. Is Mr. Tiretread in the courtroom? Mr. Tiretread?

Mr. Tiretread:  Huh? Wazzit?

Judge: Can you take this man’s case? Despite his egregious victimization of Ms. Goosestep?

Mr. Tiretread: No problem, Judge. I was an old-timer in this courthouse when she was still pooping in her diapers. I been stabbed, punched, spat on, throttled, sued, had my ancestry questioned by clients – and those were the winning cases.

Defendant: I hear they call you Rip van Winkle. Sleep, sleep, sleep.

Mr. Tiretread: Button your lip, son. I’ll get you deal they can’t refuse.

Law vs. Science

Exclusive Interview with the Hon. Judge Wool:

Appellate Squawk: Judge, I understand you were a prominent member of the National Commission on Forensic Science asking some tough questions about the validity of these cop-created sciences.

Judge Wool: I was, but now I’m back to selling pencils outside the courthouse. Our “make-America-great-again” regime replaced us with a law enforcement outfit headed by a prosecutor. The Justice Department has dissed our work as “efforts in the courtroom and elsewhere to reject reliable and admissible forensic evidence.”

A-S: But how can they ignore the National Academy of Science report, the PCAST report and the Innocence Project’s embarrassing revelations of wrongful convictions caused by forensic so-called science?

Judge Wool: Same way the courts manage to ignore them.  Cops are still testifying to “a reasonable degree of ballistic certainty” that a squashed piece of lead could only have been fired from the defendant’s gun. Or to a reasonable degree of inkpad certainty that a smudgy partial print matches the defendant.  As for those trained seals from the Medical Examiner’s Office babbling about how no one in a bajillion gazillion planets except the defendant has the same 3 alleles as those found on the gun, don’t get me started –

A-S: Are you saying courts don’t understand science?

Judge Wool: They understand that science is the enemy of law. Courts wouldn’t last a day if they were held to the same standards as science.  For example, imagine a clinical test where everybody knew whether they were taking the drug or the placebo.

A-S:  It wouldn’t prove anything. The subjects would be influenced by what they knew.

Judge Wool:  Even if they promised under oath not to be influenced? What if they were experienced testees who could be presumed not to be biased by what they knew?

A-S: Why, that’s just like having the same judge do the trial who did the suppression hearing! Or who knows the defendant’s criminal record.

Judge Wool: Exactly. And what if experimental results were considered final and could never be retested because the first experimenter saw and heard the experiment?

A-S: Well –

Judge Wool: Or because the experimenter was a senior scientist? Or swore on the Bible that the results were accurate?

A-S: Science would still be in the Middle Ages.

Judge Wool: Just like the law.

“Goes to weight, not admissibility.”

h/t to Adina Schwartz, firearms & toolmarks skeptic for “to a reasonable degree of ballistic certainty.”

Searching for the right court for your appeal? View these customer reviews.

One of the great bulwarks of economic justice for online shoppers is the grassroots literature of customer reviews. A mix of testimonial, advice and social protest, customer reviews are the expression of the Internet Age from all walks of life, from staid L.L .Bean commentators (“This versatile natural cotton T-shirt was the perfect choice when my husband and I had to swim ashore after our cruise ship sank”), to the picky TripAdvisor tourists, (“Beaches a disappointment. The wife and I didn’t expect so many land mines”), to the basement genius, (“Had some difficulty getting the box open, but she worked great after I simonized the gaskets, replaced the #.43 screws with a catalytic converter and cranked up the flywheel”).

Now that every court has a website, there’s no excuse for not including customer reviews. The First Department, always at the forefront of innovation (someday they’ll discover real electronic filing), has initiated a pilot program. Here’s what you can read on their Home Page:

“Fabulous court, helpful, attentive judges. Ruled in our favor when we hadn’t even filed a brief. Would definitely go back.” – – NY District Attorney.

“I followed the instructions to the letter but the decision they sent me arrived months late, omitted crucial facts and mixed it up with another case. Their legal analysis didn’t fit at all. I sent it back for reargument, but they never responded.” – – Defense lawyer

“Got good results after greasing the wheels.” – – White Shoe Lawyer.

“Design is obsolete. All the nuts need adjusting.” – – Appellate Squawk.

 

Is a lawyer a “significant individual”? Court says nix.

Does being someone’s lawyer make you their “authorized representative” or even a “significant individual,” client-wise? Not if he’s “a dangerous sex offender requiring confinement,” says the Appellate Division. In that case, you’re most likely an annoying buttinsky yapping about “therapeutically counterproductive” notions like due process and autonomy, impeding Doctor from “crafting an appropriate treatment plan.” Mental Hygiene Legal Service v. Sullivan (3rd Dept. 2017).

The plaintiff D.J. is locked up indefinitely in Sex Offender Gulag – which the court describes with a straight face as being a hospitalized patient enrolled in a Care and Treatment Program. The Mental Hygiene statute says he can have an “authorized representative” or “other significant individual” present at his “treatment planning meetings.” “Treatment planning,” in the context of forcible confinement, means how much restraint, deprivation, brainwashing and doping up the patient will be subjected to in Sex Offender Hospital.

So when D.J., sensibly reasoning that his lawyer was an authorized representative and significant individual, asked to have her at the meetings, the Care ‘n’ Treatment folks recoiled like vampires before a cross. “Not entitled as a matter of law!” ruled Head Shrink, brandishing his souvenir shop Juris Doctor diploma. “Counsel’s presence would be therapeutically counterproductive!” But he generously allowed an exception if the lawyer could prove “a genuine interest in the care of the patient,” would guarantee that she was “no longer acting in the role of legal representative” and would keep mum about whatever she heard, especially to her law office, the Mental Hygiene Legal Service (MHLS).

You’d think the Appellate Division, presumably paid-up members of the ABA, would tell the doc to stick to his penile plethysmographs and let lawyers do their job.  After all, the Legislature expressly provides lawyers to civilly committed sex offenders for assistance and advocacy, including in treatment planning. If legislatively mandated lawyers aren’t authorized representatives, who is? As for “significant individual,” the Legislature defines it as anyone “concerned with the welfare of the patient.” So what’s not to understand?

But the court, applying the Houdini canon of statutory construction, opined that authorized representative means only someone like a parent or health care proxy who makes ultimate decisions for minors or the hopelessly gaga. MHLS lawyers, in contrast, “must maintain a conventional attorney-client relationship.” What’s a conventional attorney-client relationship? The court doesn’t say, but whatever it is, “it follows that counsel is not an ‘authorized representative.'”

The court wriggles out of recognizing lawyers as significant individuals by saying that “the phrase refers to someone interested in the patient’s welfare and knowledgeable about his or her personal situation rather than someone tasked with providing legal counsel” (emphasis added). Since lawyers’ “narrow legal concerns” are completely at odds with knowing anything about their clients’ personal situation, let alone with giving a flying fish about their welfare, this “compels the conclusion” that they’re not significant individuals. Take that, you client-centered touchy-feely types!

The court is charmingly candid about why lawyers need to be kept out:  “[L]egal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals” (citing a case where a lawyer interfered with a patient’s medically advisable treatment by insisting on investigating her claims of abuse by staff).

Nor does D.J.’s lawyer qualify for the Genuinely Caring exception, says the court,  since D.J. failed to prove that they “have developed the type of personal relationship” that makes the latter a “significant individual.” His lawyer’s just too darn busy pursuing narrow legal goals.

The dissent, closer to Planet Earth, argues that a “resident” might have legitimate objections to what Sex Offender Hospital calls “care and treatment,” and that his lawyer is both an authorized representative and a significant individual (citing a case where involuntarily committed patients successfully objected to care and treatment in the form of forced medication).

But the majority happily swallows the pretense that civil commitment is “hospitalization” to cure the “patient,” no matter how much it looks, walks and quacks like punishment.

C.S. Lewis long ago described the deadliness of conflating punishment with therapy:

[W]hat had hampered every English police force up to date was precisely the idea of deserved punishment. For desert was always finite: you do so much to the criminal and no more. Remedial treatment on the other hand, need have no fixed limit: it could go on till it had effected a cure, and those who were carrying it out would decide when that was. And if cure were humane and desirable, how much more prevention? Soon anyone who had ever been in the hands of the police at all would come under control of N.I.C.E; in the end every citizen.

C.S. Lewis, That Hideous Strength, 69 (Scribner Paperback Edition, 1996)(1943) (h/t to Art Baer of MHLS who pursues his clients’ legal goals and their welfare).

Squawk has been ungood

If the wrath of the humorless is a satirist’s badge of honor, we’ve been awarded the equivalent of the Nobel Prize for our recent post “Are you a cissie?”

The post (trigger warning!) is a spoof of compulsory workplace “trainings” proselytizing the fashionable notion of gender issues über alles. Our point was that although genderism may be a harmless enough ideology for personal life, it’s intrusive, irrelevant and potentially offensive to foist it on people we’re supposed to be defending from criminal prosecution.

OMG, the cries of “Homophobic!” “Racist!” “Heavy hearts, anger and anguish!” “Resistance to the Truth!” that went up from a claque of goodthink colleagues.  Grievances! Complaints! Running to Mommy Management!  Of course we support free speech, they harrumph, but not when it offends us!

Apparently they skipped First Amendment in law school for fear of being traumatized.  But if criticism of their beliefs makes them anguished and apoplectic, how in the (real) world do they function as lawyers?

Judge: The defendant Joe Blow is charged with burglary.

Defense Attorney: Harassment! Discrimination! My client is disproportionately overrepresented in the criminal justice system!

Prosecutor: You can say that again. He’s got eleven priors.

Attorney: How dare you put my client in the unfair and exhausting position of having to defend himself!  You disgusting white supremacist! You – you-  phobe!

Prosecutor: But I’m not white –

Judge: Um, counselor, I believe the People have already offered a conditional discharge and a program.  

Joe Blow: I’ll take it. 

Attorney: I’m telling on you to the Bar Association!  I’m filing a Title VII complaint! You’re gonna get in trouble!

We shudder to think what their appellate briefs look like:

It is with a heavy heart, anger and anguish that appellant responds to the bigoted, ugly People’s denigration of my client as “guilty.” This belittling, demeaning label is deeply offensive to Mr. Blow who has expressly stated his preference for being called not guilty.  

Yup, disagreement is harassment. Criticism is discrimination. Diversity is conformity.  Newspeak is reality.

Police Commissioner announces new anti-spitting technology

Police Commissioner Hannibal Mugfur announced a monumental new technology today guaranteed to solve thousands of crimes, bring deviants to justice and make the City’s sidewalks cleaner. Unveiling a demonstration model of the SPITSUCKER-100™ before a delighted audience at Daffy Duck Middle School, Mugfur explained that it would enable the police to collect the thousands of saliva samples voluntarily deposited on city sidewalks and enter them into a portable database for DNA comparison.

SPITSUCKER-100™ is a microchip installed on a police officer’s shoe sole that automatically detects traces of expectoration on the sidewalk and enters it into a database attached to the officer’s ear. If DNA from the saliva matches a profile in the database, the officer’s ear lights up and an all-points bulletin goes out for the spitter’s arrest. If there’s no matching profile, the District Attorney’s Office convenes a Grand Jury and indicts the spit.

The device costs between $100,000 and $300,000 each, depending on the size of the officer’s feet.

The Mayor hailed it as a monumental breakthrough for justice.  “No longer will spitters escape detection by walking away,” he said. “Sidewalk expectoration is the gateway to violent crimes.  Spitsucker-100™ will enable the police to catch rapists, murderers and people who see a suspicious package on the subway but keep it to themselves.”

“We need to keep our kids safe from spitters,” agreed Assemblywoman Chlorox Trump (no relation to the President). “I’ve introduced a bill prohibiting any convicted spitter from going within 1,000 feet of a sidewalk. ”

Some scientists urged caution. “The SPITSUCKER-100™ doesn’t distinguish between human expectoration intentionally deposited on the sidewalk and involuntary drool from canines,” said Dr. Grant of Harvard University. “There needs to be far more research and experiments with college students.”

“Nonsense,” snapped Dr. Retort of the Medical Examiner’s Office, who developed the device. “It’s achieved full scientific consensus. Everybody in my office agrees it’s a proven scientific tool to convict criminals.”

“It’s a clear threat to civil liberties,” said an ACLU spokesperson. “Persons convicted of crimes are vastly over-represented in our prisons.”

“The War on Sex”

  As anyone knows who litigates SORA hearings, reason and a dime will get you a cup of coffee. The “research,” endorsed by the Supreme Court, showing that sex offenders have a “frighteningly high” rate of recidivism comes from a magazine article. The more boring but reliable literature shows that sex offender recidivism rates are no higher than that of other criminals. Burglars, for example, are way ahead. But what’s the use of mere information in a time of moral panic?

So we when we heard about a book of essays criticizing the Megan’s Law regime, entitled “The War on Sex” (2017) Halperin & Hope, eds., we immediately snagged a copy. Alas, for all the footnotes and academic trappings, it’s basically a polemic. The hyperbolic title should have clued us. War on sex? Au contraire, everything from mega-billboards advertising underpants to the Supreme Court’s paean to gay marriage promotes sex as the key to meaning and happiness.  A more accurate title might be, “There’s a War on ‘Sex Offenders’ That Should Worry Us More Than It Apparently Does.” But who’d buy a book called that?

The book’s premise is that beneath the apparent expansion of sexual freedom over the last 50 years, there lurks, like the picture of Dorian Gray, a simultaneously growing horror.  It argues that phenomena such as the sex offender registration and civil commitment laws; the mistreatment of transgender prison inmates; the Vatican’s opposition to gender fluidity; the misuse of sex trafficking laws to oppress sex workers; and the policing of HIV-positive persons –  are all part of a new war on sex. And because this war is “intertwined with racism, sexism, social inequality, and homophobia,” it “demands a coalitional response” from the corresponding social justice movements.

Several of the essays bravely grapple with the inherent contradiction. Social justice advocates want more protections for persons they consider to be victimized. But the resulting proliferation of criminal laws targeting domestic violence and hate speech, for example, has contributed to the carceral state, i.e., more men in jail. As one author argues, the effect of New York’s sex trafficking laws has been to arrest more streetwalkers – the very people the laws were supposed to protect.

The book is unfortunately full of sweeping assertions that are more ideological than reliable.  For example, one author asserts without explanation that the Static-99, an actuarial instrument widely used to assess the risk of sexual recidivism, is based on homophobic research such as Nazi castration experiments. That’s inexcusably misleading, whatever the failings of the Static-99.  Another author asserts that there are fewer white men on the sex offender registry because some jurisdictions don’t include incest offenders. We’d suggest checking that out before putting it into a brief.

As refreshing as it is to hear resistance to Megan’s Law, it’s unlikely that sex offenders will ever be the rallying point for progressive groups. There will never be a Sex Offender Pride parade.  At best, progressives will protest the prosecution of people who aren’t really sex offenders, such as sexting teenagers or HIV-positive prostitutes. But where are these social justice warriors when a “real” sex offender victimizes one of their own? As often as not, picketing the courthouse to see that he doesn’t get away with a “lenient” sentence.

The book has brought home to us that our job isn’t to vindicate this or that group, but to insist on our clients’ constitutional rights, no matter who they are or what they’ve done or who they’ve done it to. As the great Rumpole of the Bailey said, we’re old taxis that stop for anyone in trouble. Although we’d never add, as Rumpole did, “however repellent.”

Are you a cissy?

One of the many annoyances of being accused of a crime is having to put up with humiliating questions from your lawyer. Like, “Was your grandmother a drug addict?” “When was the last time you had sex?” or “Do you hear voices?” [Correct answer: Yes, when people are talking].

But that’s nothing compared to what lawyers are supposed to ask now, based on the latest advances in client-centered embarrassment:

Scene: Arraignment pens, counsel visiting area. 

Lawyer: Hi there! I’m Suzy, a cis-gendered woman, and I’ll be your attorney for today.

Defendant: About time. I’ve been locked up for a week without seeing a lawyer. I’m innocent. The cops broke down my door without a warrant –

Lawyer: What name would you like me to call you?

Defendant:  My homies call me Killer, but I’d rather you didn’t mention that in court. More prejudicial than probative, if you know what I mean. As I was saying, the cops said they’d shoot my dog if I didn’t voluntarily come to the precinct –

Lawyer:  [Reading from a card] I need to know whether your name expresses your internal deeply-held sense of your gender which may or may not be the same or different from your gender assigned at birth –

Defendant: Yeah, whatever. Then they handcuffed me to a chair and started throwing lighted matches on my lap, causing imminent danger to my manhood –

Lawyer: Tut, tut, gender isn’t a matter of stereotypical physical characteristics –

Defendant:   – so I confessed. But I can prove it’s false because there’s a surveillance tape showing I was on the other side of town at the time.  My wife  –

Lawyer:  Your wife? What gender identity does they go by?

Defendant: Yo, are you calling me a FRUIT?

Lawyer: That’s a very discredited terminology. The term is non-binary gender fluid –

Defendant: Will you lower your voice? I’m in a holding cell with 20 other guys, you know what I’m saying?

Lawyer: I’d feel so much better about our relationship if you’d only come out of the closet.

Defendant: But I’m a man. Like Muddy Waters says, “M-A-N, I’m the hootchie cootchie man -”

Lawyer: You sexist pig, how dare you! (Exit)

Defendant: Damn these girl lawyers.

Powerpoint for the defense

Prosecutors see nothing wrong with summing up with Powerpoint like this:

Well, two can play this game. Here are some handy graphics for defense summations:

My client is presumed innocent.

Officer Blow wasn’t credible.

Consider the absence of evidence.

Don’t be swayed by passion or prejudice.

The People’s case doesn’t add up.

 

The People haven’t carried their burden of proof.

 

Prosecutor Powerpoint and Wigmore’s horse

Since prosecutors’ summations are basically commercials to sell the jury on a guilty verdict, it was only a matter of time before they started using advertising graphics.

In People v. Santiago (2014), New York’s top court saw nothing wrong with the People’s showing a series of photoshopped slides supposedly showing a baby’s soul fading into oblivion. To prove that she was smothered on purpose and not by accident.

Naturally, it proved no such thing, but there wasn’t a dry eye in the courtroom and you can guess what the verdict was.

Recently the Court has again given the green light to creative prosecution, this time approving the People’s touching up the defendant’s arrest photo with arrows pointing to his face. Each arrow demonstrating their “theory of the case,” i.e., that the defendant was “the face of death.” People v. Anderson (2017).  It must have looked something like this:

It was also fine for the People to add comments to the autopsy diagram, so long as they were “fair inferences.”

The Court reasoned that if it’s okay to say it, it’s okay to show it. The dissent, who apparently reads something besides law reports, argued that it’s been known for quite awhile that people tend to uncritically believe what they see. Whereas we recognize words as just something coming from speakers, we respond to images as “reality.” Therefore, visual “information” can be persuasive for the wrong reasons.

This isn’t a new discovery. Back in 1904, Wigmore on Evidence observed that visual aids in the courtroom can positively substitute for proof. Does Doe accuse Roe of stealing his horse? Have a horse brought into the courtroom and triumphantly say, “If you doubt me, there is the very horse!” The jury will consider this as definitive corroboration.

Believing what we see is explained by evolutionary biology.  When confronted by a saber-toothed tiger, the humans who said, “Aw, that’s probably just photoshopped,” tended to have fewer descendants than the ones who ran. But critical thinking wins out in the end. . . doesn’t it?

In memory of Dennis Murphy, public defender

Dennis horsing around at the office 2015

Dennis Murphy passed away at home in his sleep on March 22, 2017, after several years of being progressively weakened by neurodegenerative illness.  He was Director of Training at the Legal Aid Society, where he overflowed with more ideas for projects in a single conversation than most people come up with in a whole career.  He read widely, knew everybody, and delighted in bringing people together: attorneys, law professors, experts, academics in all fields and anyone whose knowledge he thought would make us better lawyers.  Being a lawyer wasn’t just about doing the next case. It was also about ideas: “Never let the urgent drive out the important,” he said.  So, training could be anything from how to litigate a suppression hearing to investigating a mock crime scene to looking at paintings at the Metropolitan Museum, the lesson being that there’s always more than meets the eye.

When walking became too difficult, he adopted a bright red golf-cart-like vehicle, adeptly tooling around the office. We never heard him grumble or complain, even when being kept waiting in the lobby for hours to be picked up by Access-a-Ride. “At least they give same-day service,” he’d say.

Dennis was married to Dr. Maureen O’Connor, a lawyer and psychologist who headed the Psychology Department at John Jay College and then the Doctoral Program in Psychology at CUNY.  When she was appointed President of Palo Alto University last August, this seemed like a perfect move for them and their daughter Katy, just out of college. Asked about his plans, Dennis happily answered,  “I’m going to sit in a jacuzzi and catch up on my reading.”

Here’s his farewell to Legal Aid:

This is goodbye from Dennis.  Maureen, Katy, and I leave for California on Tuesday, June 21^st.  If you count my short tenure as an alcohol tax inspector for ATF in San Francisco in the early 1970’s, this marks my 44^th year in the larger world of law and justice.  12 jobs in 44 years. Lots of challenges, friends, mentors, mentees, and lots of clients. Being a public defender – representing poor people in misdemeanors, felonies, and capital cases and providing training to public defenders  – has been the highlight of my career.  I’ve made monumental mistakes and left some aspirational projects on the table, unfinished.  And there have been successes, but I’ll let others do the math.

One thing is certain:  any accomplishments owe much to others with whom I’ve worked side-by-side.  The list is embarrassingly long [followed by a very long list]. Thanks so much to everyone.

But it’s all about our clients, isn’t it?  My “five year plan” – renewed annually – has been for us to change the “talk” at Rikers Island from “I got a public pretender” to a proud thump on the chest “I’ve got Legal Aid!”  We’re not there yet, nor is any other PD.  But we must keep trying!  Love your clients, no matter how they treat you.  Go to Rikers and visit them; it’s amazing how that can transform an attorney-client relationship.  Even so, you’ll never get the number of “thank you’s” that you deserve.  Treasure the ones you receive.

Enough preaching. I love you all.  If you are in the Bay area, let me know.  And in case you haven’t seen me wrestling Victor the Bear, please review the attached critically.

Dennis (far left)