When is a trial not a trial? When there’s no jury.

“Can you follow the law as instructed by His Most Radiant Honor the Judge?”

We recently briefed a case where the judge came back from lunch and announced, “The Court has arrived at a verdict.  The verdict is –,” until the parties frantically stopped her. The trial hadn’t finished yet!  She apologized and sat patiently through the rest of the trial before delivering the guilty verdict she’d already decided on.

How do we know she’d already decided? Because for starters, it was called the “Domestic Violence Court,” a name that might as well be “The Man Is Guilty” Court.  Or the “Once-You’ve-Seen-One-You’ve-Seen-Them-All” Court. How can a busy, overworked judge possibly be expected to remember which case is which?

That’s why the People like to reduce the charges to a lower grade so the defendant doesn’t get a jury trial — the myth being that a trial for a “petty” crime isn’t worth the trouble of hauling in a bunch of cranky citizens who insist that jury duty is against their religion.  The reality being that a conviction of a petty crime is enough to send you to jail for “only” three months, make you lose your job, put you on the Sex Offender Registry, and/or various other obstructions to life, liberty and the pursuit of happiness.

Everything from the Supreme Court’s recent paen to jury trials to “Twelve Angry Men”* shows why multiple heads are better than one.  Remember in the movie where the jurors are all set to convict the boy because he had a knife just like the murder weapon? And Henry Fonda pulls out the same kind of pocketknife to show how common it is? Persuading the other jurors to put aside their unreasoning prejudices and acquit before he pulls out a gun?

Not only does the lonely judge have no one to talk to, “reasonable doubt” is a contradiction in terms when she can expect to see her mug on the front page of the tabloids if she acquits.  Fuggetabout if the defendant ever, ever commits a crime in the future.

If there must be solo judge trials, then judges should have to explain their verdicts in writing, just like they do for hearings.  No reason to protect the sanctity of the beak’s in cerebro deliberations.  The next courtroom drama will be “Twelve Angry Neurons.”

*Check out the Bollywood version.

How to describe judicial decisionmaking without being held in contempt

Judicial decisionmaking

The biggest challenge of appellate writing is figuring out how to convey without actually saying so that the trial judge was an uninformed barnacle.  Especially when the standard of review is that the judge is always right.  The appellate squawker is traditionally confined to saying, “the court erroneously held [insert outrageous ruling].” Or, if really out of control, “the court unreasonably held [insert even more outrageous ruling]. 

But we’ve recently discovered a treasure trove of vituperative euphemisms in the literature of heuristics, or “mental shortcuts,” or “kneejerk reactions that pass for thought.” With its obvious application to judicial decisionmaking, it provides a whole new vocabulary for hotfooting the affirmance machine.

For example, you can say: “The court, displaying a significant penchant for inter-personal dominance, a low need for cognition, and devoid of pre-decisional accountability, employed heuristics inappropriate to the process.”

Instead of: “The judge, a tinpot tyrant who hasn’t read a case since law school, ruled from the seat of her pants.” 

You can say: “The court, seeking cognitive closure, relied on effort-reducing, time-saving heuristics, resulting in a suboptimal judgment.”

When you mean: “The judge decided the sentence before hearing a word of evidence.”

Instead of:  “The trial judge was a prosecutor in a robe who took every opportunity to put his thumb on the scale.”

Say:  “The court applied malleable and ambiguous standards.” 

And you can safely say: “The court was constrained by cognitive overload.”

When what you mean is: “The judge slept through the whole trial.”

h/t to  “Heuristics, Cognitive Biases, and accountability: Decision-Making in Dependency Court” by Matthew J. Fraidin.

The Court of Appeals rules on SORA

“The issue is whether its toenails shall be painted red or green.”

 

From the archives: Judge Rakoff on graffiti and Oedipus Rex

From “The Villager,” August 24, 2005

Chelsea graffiti party
Federal Judge Jed S. Rakoff on Monday ordered the Bloomberg administration to reinstate a permit for a Wed. Aug. 24 Chelsea block party featuring the painting of graffiti on mock subway cars.

In a written decision, Rakoff rejected the city’s argument that the 10 a.m. to 6 p.m. event on W. 22nd St. between 10th and 11th Avenues by the designer Mark Ecko would incite people to deface property.

The city last week had granted the street-closing permit for the event involving a group of people spraying graffiti on metal panels simulating subway cars. However, the city rescinded the permit at the end of the week, saying Ecko had failed to state the particulars of the event.

Rakoff, however, dismissed the argument that the public performance would incite illegal action, saying, “By the same token, a street performance of ‘Hamlet’ would be tantamount to encouraging people to revenge murder. As for a street performance of ‘Oedipus Rex,’ don’t even think about it.”

Lunar New Year message: take a tip from the fish

This week we’ve been poking around Manhattan’s Chinatown celebrating the Year of the Rooster.

                           

“Sometimes your destiny needs to be spelled out.”

 Fish were everywhere. 

                      

Back at the office we asked our wise informant Kam what fish represented. “They’re a symbol of perseverance in overcoming barriers,” she said. “When they come up against something, they swim around it. They’re free because they’re flexible.”

We thought this was good advice. Especially for those days when you feel you might as well put your briefs in a bottle and throw them in the East River.

DOJ recommends new photo array procedures: no hints allowed.

The U.S. Department of Justice has issued new recommendations  for photo arrays – when cops show a witness the suspect’s photo along with photos of five other guys and ask which one is the perp.  The DOJ thinks it would look better if the cop showing the photos doesn’t know the right answer – the idea being that the witness should actually recognize the suspect without any noodging from the cop.

This and other recommendations for cleaning up police-arranged i.d. procedures have been around at least since the 1990’s, when the U.S. Attorney-General issued “A Guide for Law Enforcement.” This sent the NYPD and DA’s into an indignant tizzy – no criminal would ever be identified again!  Until they caught on that no matter what the cops do or don’t do, no court has ever met a photo array it didn’t like. For all the judicial handwringing about the unreliability of eyewitness identification, from the Sacco and Vanzetti trial to the DNA exonerations, nothing has changed in the way courts conduct suppression hearings.

A suppression hearing is where the cop who showed the photo array swears that everything was tickety boo, and in no way “unduly suggestive.”  To forestall any unworthy suspicions defense counsel might have, courts not only exempt the prosecution from calling the eyewitness to give her account of the procedure, but allow them to keep her identity secret until trial. Everybody takes the cop’s word for it, and that’s that.

The court then looks at the photo array, notes that the fillers are similar in age, give or take 20 or 30 years, similar in height, give or take a few feet, and similar in weight, give or take 100 pounds.  Any protest, such as that the defendant is conspicuously younger, thinner or hairier, is disposed of with the jocular observation that the police aren’t a theatrical casting agency.

But we mustn’t be cynical. Maybe the DOJ report will change everything. Here are some excerpts:

“Neither the suspect nor any photographs of the suspect (including wanted posters) should be visible in any area where the witness will be present.”

“The administrator should avoid using a photo that is several years old.”

“Fillers should be sufficiently similar so that a suspect’s photograph does not stand out –

but not so similar that a person who knew the suspect would find it difficult to distinguish him or her.”

“If the suspect’s distinctive feature cannot be readily duplicated on the filler photographs, the feature can be blacked out and a similar black mark can be placed on the filler photographs.”

“The administrator must avoid any words, sounds, expressions, actions or behaviors that suggest who the suspect is.”

“The witness’s identification of a photo, if any, and the corresponding statement of confidence should be clearly documented by video or audio recording or by immediately writing down as close to verbatim as possible the witness’s identification and statement of confidence.”

“If the witness is vague in his or her answer, such as, ‘I think it’s #4,’ the administrator should say: ‘You said, I think it’s #4. WHAT DO YOU MEAN BY THAT?'”

Buttering up the judge

We recently came across this drawing by our hero Honoré Daumier (1808-1879) (whose desperate advocate we’ve appropriated in our masthead) that says everything you need to know about preparing for oral argument:

 “Ai-je besoin d’éloquence devant un juge si haut placé; aussi familiarisé avec la forme qu’avec le fond et qui par sa position sera toujours à la tête de l’humanité.”

Google translation: “Do I need eloquence before so high a judge? As familiar with form as with background and who by his position will always be at the head of humanity?”

Sensing that some nuances had been lost in translation, we consulted our multi-lingual friend, an interpreter at the UN in Vienna.  She wrote back:

“Humph, work for breakfast!

I’d never seen this one before.

So, he’s practicing declaiming.

One step beyond anthropomorphism, since it’s with a stick.

Nothing out-of-way in the expressions.

The French are always talking about forme et fonds, presentation/structure and substance. But these are also hatmakers’ terms:  since felt hats are molded/formed and tophats have crowns with fonds in them. When forme et fonds are in harmony, all is tiptop.

And to be at the head of humanity is to be tops, as well as a topper.

And now, back to my baguette beurre!”

 

Judge Saxe tells all

Reversals are disruptive to a system that values predictability and productivity because reversal often means that the matter must be done over.  Judge David Saxe, “Paths to Excellence,” NY Law Journal.

We thought we were pretty earthy about the System, but it takes a mind like Judge Saxe to liken its values to a bowel movement.  No wonder the appellate courts never reverse. Who’d want a case of diarrhea?

 

Happy New Year from the compassionate NYPD

Santa Claus is Level 3

Scene: SORA hearing in front of Judge Dudgeon Bludgeon.

ADA Tightskirt: Judge, Mr. Claus should be adjudicated a Level 3 maximum risk sex offender. He’s a recidivist sexually motivated burglar.

Santa Claus: (appearing pro se) Nonsense! I’ve never had any trouble with the law except a few tickets for not cleaning up after my reindeer. 

ADA Tightskirt: Just because he’s never been convicted or even arrested for a sex crime doesn’t mean he hasn’t committed one. [taken verbatim from a People’s brief].

Judge Bludgeon: Yes, it looks like he’s been repeatedly breaking and entering after dark with intent to commit a crime.

Santa Claus:  What crime? I’m just bringing toys to good little girls and boys.

ADA Tightskirt: Oho! Classic grooming behavior! You want to induce them to sit on your lap at Macy’s!

Judge Bludgeon: You disgusting perv!

Santa Claus: How could I be at Macy’s when I’m busy making toys at the North Pole?

Judge Bludgeon: What? You’re telling me Macy’s Santas are imposters?  That explains why I never got what I wanted for Christmas! I begged for a bike and never got anything but socks.

ADA Tightskirt:  I never got anything but coal in my stocking.

Santa Claus: Yes, I remember you. All the kids called you Tattletale Tightskirt.

ADA Tightskirt: You’re a menace to public safety! Unlawful sliding down chimneys! Unauthorized distribution of toys! Unlicensed driving with reindeer! Repeatedly stating, “Ho, ho, ho!” obviously referring to sex trafficking. And just what is your immigration status?  You should be under the sex offender residency restrictions and prohibited from living within a thousand feet of a school, park, daycare center, beach, playground or other area where children congregate.

Santa Claus: Fortunately, I live at the North Pole. Nothing there but elves and walruses.

Judge Bludgeon: An inappropriate living situation if there ever was one. Level 3.

Santa Claus: Peace on Earth and good will to all.

Judge Bludgeon: Away with this terrorist!

 

 

 

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Vwar deer or vor dire? A guest post from the Public Defender of Harris Co., Texas

Alex Bunin founded the first and only public defender’s office in Houston, Texas, replacing the traditional folk custom of appointment-by-donation-to-the-judge’s-campaign. Asked in an interview with Simple Justice how he was received by the Jumbo State’s legal establishment, Alex said, “The biggest obstacle was the imaginary fear that all criminal defense would be turned over to a giant incompetent socialist machine. I guess we are a socialist machine, but small and competent.” After only six years in existence, the Public Defender’s Office has outstripped the private and retained bar in the number of trials, acquittals, dismissals and non-custodial sentences for the indigent accused.   

A transplanted New Yorker,  Alex rides his bicycle to work whenever Houston’s streets are above water.  

Think of this as a public service announcement for those New York attorneys wishing to understand Texas and vice-versa. First, it is important to know that each state’s courts employ confusing names. Both have supreme courts, but neither is necessarily supreme. The dictionary defines “supreme” as “an authority of office superior to all others.” However, this definition does not apply in either state.

In New York, the Supreme Court is a trial court. In Texas, the Supreme Court is co-equal with another body called the Court of Criminal Appeals. A second dictionary definition of supreme is “a rich cream sauce.” That explanation may be more appropriate. In neither state is the Supreme Court superior to all others, but either version can separate and burn when there is too much heat.

Both states have intermediate courts of appeal. New York calls them departments. In Texas, departments are typically retail stores like Dillard’s or Palais Royal. Texas courts of appeal are called just that, but the clarity ends there. In New York, its highest authority is the Court of Appeals, or what English majors would call its supreme court.

Aside from the exquisite naming differences, lawyers in the two states simply speak differently. New York attorneys are “on trial” the same as they are “on line” waiting for a hero sandwich. Texans are “in trial” as they are “in line” waiting for a po’boy sandwich. In the Empire State, as in most places, the legal phrase for jury selection is pronounced “vwar deer.” In Texas is “vore dire.” Texans love to pronounce names in the least intuitive manner possible. If you are not from Texas, try saying “Bexar”, “Humble”, or “Refugio.” No, you got them all wrong.

New Yorkers also create their own difficult pronunciations, sometimes by mistake. Houston Street is in lower Manhattan (pronounced “How-sten”). It is a misspelling, meant to honor William Houstoun, a Georgia delegate to the Constitutional Convention. It has no relation to the city where I live, Houston (pronounced “Hyoo-sten”). My city is named after Sam Houston, the governor of two states (Tennessee and Texas), a U.S. Senator (Texas) and a President (Republic of Texas). He was also the major general who led his troops to victory in the final battle for Texas independence from Mexico.

If you are standing anywhere in New York State and someone refers to “the City”, you know they are  referring to one place — New York City. Residents of NYC think the rest of the state is a somewhat inferior civilization. Texans feel the same about the entire United States, including NYC. Texas was once an independent country and, after several beers, some citizens occasionally ponder secession.

Texans prize firearms above most possessions. With the proper permit you can even bring your weapon into the State Capitol in case you need to draw down on some subversive pol suggesting renaming the State Bird. You can “open carry” your guns at our finest institutions of higher learning. You cannot, however, purchase beer before noon on Sunday because all heck would break loose.

Having spent about half my life in each state, I consider myself a neutral observer. New York has improved to the point that restaurants no longer pass off marinara sauce as salsa, nor meat fried over charcoal as barbeque. Houston is now the most ethnically diverse city in the United States. Both are border states and neither needs, nor wants, a wall. If you live in one, come visit the other. I recommend it.

Alex Bunin, Harris County Public Defender

 

Trump promotes job opportunties for ex-offenders

Like most public defenders, we have clients who can’t even get a job in a car wash because they’re on probation. Who wants to hire a criminal, especially when they come with a nosy probation officer attached?

So we’re deeply impressed that Trump is contemplating hiring an ex-offender on probation! For Secretary of State! We’d unfairly stereotyped the President-elect as a troglodyte likely to bring back public hanging, flogging and Sunday blue laws forbidding restaurants to serve mimosas for brunch until noon. But instead he’s made a demonstrated commitment to reintegrating ex-offenders into the community!

The lucky candidate for a job with The Donald is David Petraeus, who’s on probation for Giving Away Military Secrets with His Pants Off (28 USC § 2 million).  During his abruptly terminated tenure as director of the CIA, he couldn’t resist bragging to an adoring bimbo about how he’d made Afghanistan safe for democracy back when he was a four-star general. And to show he wasn’t just blowing in her ear, he gave her a bunch of notebooks containing classified information.  The zany things married guys will do to impress a doll! But at sentencing he expressed deep remorse and recognition of the harm caused by his offense, saying, “Today marks the end of a two-and-a-half year ordeal. I now look forward to moving on with the next phase of my life.” Who could fail to be touched by such passionate breast-beating?

Trump isn’t the only Republican to recognize that the best way to rehabilitate ex-offenders is to give them meaningful jobs. Senator McCain, asked for his opinion, lectured the press on Truth and Reconciliation, or at least Reconciliation, explaining, “I think people make mistakes in life and you move on.”

A buddy of Petraeus’s at the Brookings Institution, referring to his disclosure of military secrets while head of the CIA as “personal shortcomings,” compared them to General Grant’s heavy drinking or Eisenhower’s bit on the side. “It’s not like he was giving this to the National Enquirer,” he explained.  After all, Petraeus only gave the classified information to his girlfriend, a self-styled “soldier-scholar” who was writing a book about him. “The world has deemed it clear that we recognize that we’re all human,” concluded this mouthpiece of Think Tank Row.

You might not appreciate what a revolution in penal thinking this is unless you’ve sat at a defense table being sprayed by a prosecutor screaming at your client for leaving a drug program. Or failed to get your 89-year old SORA client a risk level reduction because the prosecutor pouts and stamps her little foot about a 1957 conviction. (We’re not making this up).

All of this will change under the new Administration.  “Ladies and Gentlemen of the jury,” prosecutors will say on summation, “Ever since his arrest, the defendant has been going through a terrible ordeal. You’ve spent three weeks hearing about his personal shortcomings.  But now that the world has deemed it clear that we recognize that we’re all human, I urge you to put them aside and move on.”

Still, we wonder if Trump quite grasps the implications of having a Secretary of State on probation. Like all federal probationers, Petraeus has a long list of conditions requiring him to do whatever his P.O. tells him and “truthfully answer“ any question she asks, on pain of being remanded to the pokey. Although, this being the Western District of North Carolina, the federal judge made an exception to the prohibition against having a gun. (We didn’t make that up either).

Scene: World Summit on Nuclear Warfare

UN Secretary-General: It’s been a long night, my friends, but I think we’ve reached agreement at last. In a top secret pact that will never be disclosed outside this room, every country in the world has promised to destroy its nuclear weapons and not build any more, on condition that America  stop referring to Iran, Iraq and North Korea as the Axis of Evil. All in favor, raise your right hand.

Enter P.O. Treadwell, glaring at Petraeus.

P.O. Treadwell: David, I need you to come with me right now. You’re out past curfew and what’s more, consorting with known criminals in violation of your probation conditions.

Iraqi Foreign Minister: Who are you calling known criminals, Madam? I shall recommend an immediate declaration of war.

P.O. Treadwell: Don’t you go telling me my job, Ali Baba. It’s right in this here 3-page list of probation conditions. Not only that, he’s missed two sessions of his “blabbing state secrets to impress girlfriends” management program. Plus, he needs to give me a urine test right now.

Petraeus:  Wait, wait, don’t handcuff me until I’ve raised my right hand.

P.O. Treadwell: What are you voting about? I demand that you truthfully answer my questions

North Korean Foreign Minister: The subject cannot be disclosed! We would lose face and have no choice but to launch nuclear missiles at New York.

P.O. Treadwell:  Serves them right for invading North Carolina in 1863. Under Probation Rule #11, he’s obliged to answer all my questions truthfully, including disclosing any personal or business financial information. David, what’s the defense budget of North Korea?

Petraeus: Sorry, fellas, but I have to abide by my probation conditions and disclose all. It’s not like she’s from the National Enquirer.

UN Secretary-General: Fortunately, we foresaw this contingency when you were made Secretary of State. (Pushes button on his desk. Petraeus and P.O.  Treadwell blow up).  Now that that’s settled, who’s for the elimination of nuclear weapons? Unanimously carried with one abstention by the U.S.

Brooklyn DA prosecutes purse snatching as a hate crime

A recent press release from the Brooklyn DA’s Office announced that they’re charging a man with hate crimes for purse snatching and lifting a wallet from a handbag left in a shopping cart in T.J. Maxx Department Store. “We will work vigorously to prosecute all crimes based on age, gender, race, religion, sexual orientation and ethnicity,” said DA Gonzalez. “The defendant allegedly targeted older women because they were easy marks.” The owners of the purses were three Russian women ages 61 to 64. 

ADA Tightskirt: Ladies and gentlemen of the jury, you’ve heard of Kristallnacht in Nazi Germany, the lynchings in the South, the genocides in Rwanda, the beheadings in the Middle East – all hate crimes, just like the case before you.  Here, the defendant’s target was that historically underrepresented, downtrodden minority, Russian women in their early 60’s. Feeble, decrepit, gaga, one foot in the grave, drooling and tottering along as best they can –

Judge: Um –

ADA Tightskirt: Did you say something, Judge?

Judge: (hastily putting away her copy of “Modern Maturity”) Nothing, please continue.

ADA Tightskirt: The judge will tell you that any crime based on age, gender, race, religion, sexual orientation or ethnicity is a hate crime.  Since everybody has at least one of those factors, there’s nothing we can’t charge as a hate crime.

Defense counsel: Objection!  That makes the statute unconstitutionally vague! Not everything is a hate crime.

Judge: It is in Brooklyn. Overruled.

ADA Tightskirt: I call Madame Bolshoi Babushka to the stand. Madame, would you please tell the jury how you were robbed of your life savings by this vile bigot whose face is forever etched, imprinted, sculpted and burned onto your memory?

Mme. Babushka: I was trying on some lingerie at T. J. Maxx. I couldn’t have been more than 15 or 20 minutes. When I came out of the fitting room, my wallet was gone from my purse that I’d left in my shopping cart.

ADA Tightskirt: And of course the defendant had the opportunity to see that you were an elderly Russian woman?

Mme. Babushka: Kakoi elderly? At 64 I’m not even old enough to get a Senior Citizen discount Metrocard!

ADA Tightskirt: But didn’t you appear vulnerable in an old Russian sort of way that made this defendant consider you an easy mark and therefore violate your civil rights?

Mme. Babushka: I don’t know what you’re talking about, young woman. I am not old.

ADA Tightskirt: (desperately) But why do you think the defendant specifically targeted your purse? Surely it had to do with your being an easy mark?

Defense counsel: Objection! How would she know?

ADA Tightskirt: Judge, I have the burden of proving it was a hate crime. Obviously the People are entitled to ask any question that will prove their case.

Judge: Overruled. You may answer.

Mme. Babushka: I suppose he took it because it was there.  Like the reason people climb Mt. Everest. And he thought there might be money in it.

ADA Tightskirt: (losing it) You’re the victim of a hate crime, you old bag, a hate crime! I refuse to be cheated out of a conviction just because you refuse to admit you’re a doddering old fossil!  My daddy always told me, never trust the Russians –

Judge: Members of the jury, we’ll take a short recess. Don’t go to T.J. Maxx.

Is your brief turgid and prolix?

Judges are always complaining that appellate briefs are too long or, as Judge Saxe wrote in the NY Law Journal, “turgid and prolix.”

As the Emperor told Mozart: “Too many notes.”

Now they’ve resolved to take up arms against this sea of words. The NY Court of Appeals, after muddling through since 1897 without word limits, has decreed a maximum of 14k.  The federal courts are slashing it to 13k.  No more fat briefs! They must be put on a strict word-counting regimen.

So we were astonished when our local appellate court rejected our brief for incorporating into the text three photos that were shown to the jury at trial. If a picture is worth a thousand words, we saved. . . we saved. . . well, you do the math.

The prohibition against illustrated text dates back to the days of Blackstone when trials went like this:

The Crown: Constable, doth this illuminated manuscript justly and verily portray the loaf of bread appropriated by the accused to which she had neither right nor title?

Lord Feathergood: Away with such Popish devices, Sir! Forsooth, the Court giveth not a fig for whether the stolen property be white or rye. Say plainly, is the prisoner to be hanged or not?

But in our modern enlightened era, no prosecutor would dream of conducting a trial without visual aids like this:

“Officer, does this photograph fairly and accurately show where the defendant was selling drugs? How far was he from the 99-cent store over here? Please indicate where inside the laundromat the buyers were located.  Can you point to where you were standing when you had a clear and unobstructed view from around the corner?”

Or in civil trials:

“Doctor, can you say to a reasonable degree of medical certainty that this thingummy on the X-ray is the anterior view of the pancreas and not a pair of scissors that the defendant left inside the decedent after the operation?”

Or:

“Professor, is it your expert opinion that those tracks at the scene of the collision are not skidmarks, but the footprints of a giant biped unknown to science?”

“Send the photographs under separate cover,” sniffs the court clerk. Get real. Even assuming with many arguendos that these desperately overworked underpaid judges read the briefs at all, they’re not likely to stop and hunt around for the exhibits.

Which explains appellate decisions like this:

“We see nothing unduly suggestive about the lineup merely because the defendant was a 17-year old high school student and the fillers from the homeless shelter were in their 40’s.   Age difference alone is insufficient to render the procedure unconstitutional. A lineup is not a Hollywood casting agency where the police are required to provide fillers identical to the suspect.”

You know they haven’t looked at the lineup photo.

How much easier for everyone if the photos were scanned into the text! To paraphrase that great jurist Alice in Wonderland, “What’s the use of a brief without pictures?”

What’s wrong with this picture?

A photo from the L.A. Times illustrating how a San Diego lab swabs DNA from cell phones. We fear this lab isn’t going to stay in business for long.

Squawk is sent to PC training — again.

J.J. Grandville 1829

Once again, as part of the new “compassionate, client-centered”  ideology, the Great Dictator decreed that we attend another compulsory thought-reform program. This time it was about sex.

We learned that according to correct thinking, it’s only mindless conformists who allow themselves to be identified by their birth-assigned gender. Why, the doctor who filled out your birth certificate didn’t even know you. You must struggle for your identity on the battlefield of pronouns.

Unlike at the last boss-mandated training, we weren’t forced to stand up and say what our pronoun was. A good thing, now that we realize it’s a device for exposing us as mindless conformists. Instead we were instructed that it’s de rigueur in the brave new world to ask this question to our clients.

This made us think of our very first case, a client who’d pled guilty to gruesomely torturing and killing three people, but had a marvelous appellate issue.  Since winning an appeal from a guilty plea can ultimately result in just getting a longer sentence, we journeyed up the river to see if he wanted to take the risk.

But as soon as we sat down with the door locked behind us, he launched into his story of the murders.  “Those guys were going around the ‘hood saying I was a faggot,” he explained. “Obviously I couldn’t put up with that. So I had to kill them.”

“Of course,” we said compassionately. “Now, about your right-to-counsel issue. . . ”

We truly don’t understand the mentality of force-feeding The Truth.  As the wizard Merlin told the future King Arthur, the only principled way to disseminate your ideas for saving the world is “to make them available and not to impose them on other people”  (emphasis in original).

But thanks to our mandatory enlightenment, we now know why Subway Big Brother tells us to stand up for “a pregnant person.” And all this time we thought it meant don’t bother standing up for pregnant frogs.

What do legislators know about the Constitution?

     If you ever try to challenge the constitutionality of a statute, the predictable response from the courts is always, “deference to the Legislature.”

Why should legislators know what’s constitutional? Based on the flyers we find in our mailbox among the polar bear calendars and advice from the gas company about how to live a more fulfilling life, we’re the first to admit that nobody knows more than our Assemblyman when it comes to alternate side of the street parking and hot lunches for deserving seniors. Now that he’s retiring, there’s some kid going from door to door promising that if elected he’ll pass a bill making corruption illegal. No more politics and poker! No more little tin box that a little tin key unlocks!

But we have yet to see a candidate running on the platform of constitutional savvy, and if we did, we probably wouldn’t vote for him-or-her.  Never mind the Commerce Clause, Senator,  just tell Albany to keep nuclear reactors and football stadiums out of our backyard.

So when it comes to the constitutionality of criminal laws, why should courts defer to a bunch of people who think rational relationship is a dating service? Because, the thinking goes, that would be a return to the bad old days when the Supreme Court struck down labor laws for interfering with the individual’s inalienable right to work 100 hours a week for 2 cents a day. Therefore courts must henceforth always defer to the Legislature.

That’s like Mark Twain’s cat who, having sat on a hot stove, would never sit on a hot stove again. But he wouldn’t sit on a cold stove either.

How to keep your brief under the word limit

Judges are always kvetching that appellate briefs are too long and BO-ring or, as Judge Saxe says, “turgid and prolix.”  The federal judish has decided to strike back by slashing word limits from 14,000 to 13,000.

The decree sparked howls of protest from the American Academy of Appellate Lawyers. Long don’t mean dull, as any reader of airport fiction knows. And short don’t mean good, like, when your appeal is summarily denied.  If courts want snappier prose, says the AAAL, they should post “short videos” on their websites explaining “how to write a decent brief.”

Humbug. In briefwriting as in life, decency has nothing to do with winning.

Here’s how to save thousands of words – draw comics instead:

Involuntary guilty plea

 

Prosecutor’s improper summation argument (and ineffective assistance of counsel)

Fourth Amendment violation

Verdict against the weight of the evidence

Do prosecutors know the truth from a lie?

“If I said my robe is white, would that be the truth or a lie?”

Word is that California plans to make it a felony for prosecutors to hide exculpatory evidence from the defense.  That’s harsh: to the prosecutor cerebellum, “exculpatory evidence” is a contradiction in terms. After all, the defendant is obviously guilty or they wouldn’t have indicted him.

Instead of passing a law that can only contribute to mass incarceration, we have a better idea: subject all prosecutors to a swearability hearing to see if they understand the difference between the truth and a lie.

Swearability hearings are held when the prosecution witness is a very young child who, according to Ye Olde English legal tradition, is presumed not to understand the meaning of an oath. They typically go like this:

Scene: Two and a half-year old Stinky has accused her grandfather of violating the Federal Securities and Corporation Tax Law.  Judge Treacle questions her in a closed courtroom from which the defendant is excluded lest he make scary faces.

Judge: Good morning, dearie, I’m Judgie Treacle and this nice lady ADA Kickbush is here to help you. There, there, you mustn’t throw up. Dammit, Ms. Kickbush, can’t you get her a dog or something to put her at ease?

ADA Kickbush: I told them to send Fluffy the Child Witness dog, but they brought Terminator the K-9 by mistake. Fortunately we managed to keep him from eating the witness.

Judge: Is that what that barking was about? I thought it was Judge Bludgeon doing a sentencing. All right, let’s get this little monster – I mean, key witness – over with. Honey, if I said my robe is white, would that be the truth or a lie?

Stinky: Baaaaww!

ADA Kickbush: She’s saying it’s a lie, Your Honor.

Judge: Very well. Sweetheart, if I were to say this blue pen is red, would that be the truth or a lie?

Stinky: Snuffle.

Judge:  Correct. Do you understand that if you tell a lie, God will strike you dead and send you to Hell?

Stinky: Pee pee.

Judge: (Quickly) I find she’s clearly qualified to testify.

Stinky: I don’t think that’s an accurate description of God, Your Honor.  God is the Ground of All Being who exists everywhere and nowhere – (ADA Kickbush hustles her out of the courtroom).

Judge: What’s next?

Clerk: A couple of prosecutors from the DA’s Office are here for a swearability hearing, Your Honor.

Judge: (To them) If I said my robe is white, would that be the truth or a lie?

DA #1: Golly, that’s a tough one. Depends what the People’s position is. I’d have to ask my supervisor.

DA Supervisor: Judge, we have no statutory duty to disclose our position at this time.

Judge: Well then, if someone said this blue pen is red, would that be a lie?

DA #2: Not if we said so. The pen would be red.

Judge: (to DA supervisor) I’m shocked, shocked to see prosecutors who don’t know the difference between the truth and a lie!

DA Supervisor:   No worries Judge. We’ll put them in the Conviction Integrity Unit.