Bob's blog: The Magistrate, The Klearly Kangeroo Kourt, and The Koji Komedy Klub Kafka-esque Kriminal Trial (and a few Dance Club Photos to Rile Up the Internally-Konflicted "Bobs blog" Kommenters)

Wednesday, November 30, 2011

The Magistrate, The Klearly Kangeroo Kourt, and The Koji Komedy Klub Kafka-esque Kriminal Trial (and a few Dance Club Photos to Rile Up the Internally-Konflicted "Bobs blog" Kommenters)

It should have been a dead giveaway when The Magistrate announced that he'd "entered a nolle" in the first case on the docket. Prosecutors enter nolles. Judges "note for the record that the prosecutor has entered a nolle; the defendant is free to go."

At that point, my illusion that my case would be heard by somebody functioning as if he were a Superior Court judge should have evaporated. I was surprised to hear Attorney Gerald Cohen, The Magistrate, speaking words which real judges never utter, but I was in a courtroom, old and worn out though it was, and the trappings and furniture of Justice unconsciously told me I was going to get at least a fair hearing in my case.

I was also surprised that I wasn't going to get a Court trial. As I reported in an earlier blog, it surprised me at my arraignment (first court appearance) that the prosecutor, Joe Danielowski, reduced the charge to simple trespass to avoid my wish for a jury trial. At that time he also announced to Judge Licari that I'd be getting a magistrate's hearing. Later research in the Connecticut criminal procedure statutes revealed to me that a simple trespass charge is not eligible for magistrate's hearing. As minor an infraction as it is, the defendant [I] is [am] entitled to a trial by a full-fledged Superior Court judge. I assure you of this: I've seen Superior Court judges, and Attorney Gernald Cohen is no Superior Court judge.

Two cases were heard on the merits before mine, which was put off until the end of the docket. In both other cases, the prosecutor was a very nice woman who smiled when she later learned that I was both a defendant and a lawyer. This young lady was low-key and competent, but The Magistrate, and the self-represented defendants, let he get away with eliciting all kinds of inadmissible hearsay evidence in both cases. Also, one of the defendants, a young man with an Italian surname (I can't recall it), wearing a Desert Storm jump suit [Military Defendant], was convicted by The Magistrate of having a noisy, "defective" muffler on his car, on very flimsy evidence.

Military Defendant didn't have a clue about how the trial process worked. But he certainly did have good common sense and intelligence enough to realize that the State of Connecticut, in the person of the female prosecutor and the testifying New Haven police officer had a weak case. He asked some excellent questions on cross-examination. Soldier: "How could you pick out my car's muffler noise from the 40 other cars in the parking lot that night?" The cop had no good answer. "I saw you accelerate as you left the parking lot and heard the noise from your muffler increase." Soldier: "But I didn't accelerate, did I, wasn't I only going about 5 miles an hour, real slow, as I exited the lot?" Cop: "Well, as best I recall, I think you really put on the gas." Soldier: "But you're not really certain about that, right?" Cop: "Well, yeah. But I think you stepped on it."

Had I been hearing this case as The Magistrate, I would have found that the State failed in its burden of proof beyond a reasonable doubt. Had this been a civil case, involving money damages, where the burden of proof is only "a fair preponderance of the evidence," I would not have been surprised with a finding of liability. But where the State's only witness is as uncertain of the facts as this cop was, there's no way the State met its heavy burden of proof beyond a reasonable doubt. Imagine if this soldier's life were at stake and this were a first degree murder case, in which the crime was "death penalty eligible." Would The Magistrate, if he were hearing this case without a jury, find Military Defendant guilty and go on to determine whether the soldier should be put to death? It's considerations like these which explain why it's important for the Justice System as a whole that fair trials be given even to defendants charged with minor infractions, like Military Defendant (defective muffler) and myself (simple trespass), both of which are "fine-only eligible" infractions.

Gerald H. Cohen, Esq., The Magistrate, is about 70 years old. Based on a Google search I did at home after court, he's a solo practitioner in Hamden, Connecticut, north of New Haven. He's been a lawyer since 1966 and specializes in Family Law, Industrial Development Law, Personal Injury, and Real Estate. He doesn't say he practices, or ever practiced, criminal law, and it shows in the way he conducts criminal trials as The Magistrate. There's no indication in the way he behaves in a courtroom that he has any interest in, or familiarity with, American Justice. As The Magistrate, his speciality seems to be functioning as The Rubber Stamper. In Gerry's World of Justice the leading legal principle is Crap In, Crap Out.

He calls himself Gerry Cohen from the bench, where he sat yesterday in a dark business suit beneath his full head of snow white hair. His face has a pinkish tone and he displays an expression of mild bewilderment throughout the trials. I saw Gerry get irritated several times with the two defendants before me, The Soldier and a black woman charged with simple trespass for doing computer work in one of Yale's many libraries. And Mr. Cohen got irritated with me when I presented relevant evidence about the invitation I received from the emcee of the Koji Komedy Klub to return to the KKK on October 17, 2011. This invitation followed my angering the other comics on October 3, 2011 when I apologized to the young black Goddess who came to watch the show but was forced to sit through a bunch of young male comics who talked mostly about coming on women, anal sex, the "n" word (as in "n"s should be lynched like apples hanging from trees), and jews who should be stored in car ashtrays.

Mr. Cohen has no clue about the Connecticut Rules of Evidence. He also overrules all objections a defendant makes to questions by the prosecutor, even when the objection clearly should be sustained. He also applies the rules of evidence in one way to the State and another way to the defendant. For example, in my case, prosecutor Danielowski called one of the cops, Officer Matthew Abbate, as his second witness. He asked the officer to tell The Magistrate what the complaining witness, Tuan Tran, who calls himself the "owner" of the Koji Komedy Klub in court, told the cop about what had happened in my case on the night I was arrested. Of course, this was inadmissible hearsay, for which the "offered to show the effect on the hearer" exception to the hearsay rule did not apply. Nonetheless, The Magistrate overruled my timely objection to this question. This was improper because Mr. Tran was available to testify, had in fact already testified just moments before the cop took the stand, and the effect of what Mr. Tran may have told the cop was irrelevant to the charge against ME anyway. Hence, my objection should have been sustained, and any Real Judge would have known that and so ruled. Not The Magistrate, Gerry Cohen.

Then, during my case, I began to offer testimony, under the same hearsay exception asserted by the prosecutor, that Beecher, the KKK emcee, had invited me to return to the KKK on October 17, 2011. For that reason I reasonably believed that I had the right to return to the KKK and, therefore, was clearly Not Guilty of the simple trespass charge. Gerry, The Magistrate, for reasons known only to him, decided that my proper use of the hearsay exception would be improper, and inadmissible, in his courtroom. At that point, my illusion, that justice could be had in this real courtroom, presided over by The Magistrate, Mr. Gerry Cohen, Attorney-at-Law, died with a sudden cardiac arrest. How appropriate that a case involving the KKK (Koji Komedy Klub) would be heard in a Klearly Kangaroo Kourt (also a KKK)?!

The prosecutor called Tuan Tran and the cop as witnesses. The key thing about the testimony was the perjury of Mr. Tran. It ranged from irrelevant, but comic, fibs to relevant, and serious, lies. The comic category included his making up a story that after Elijah led me into the KKK with a rope around my waist, with dark sunglasses, as if I were blind, one or both of us tied both of us to a bar stool. On cross examination by me, Mr. Tran could not give any details about who allegedly tied us up, what type of knot allegedly was used, or any other details. Because the tying to the bar stool never happened, it's not surprising Mr. Tran could not recall the details and at least in that instance he decided not to make up a lie and claim it was his recollection.

But then Mr. Tran claimed that none of the comics in the KKK used the "n" word, told jokes about "n"s being lynched, jews who should be stored in ashtrays in cars, and anal and oral sex and other filthy "funny" observations about life and romantic love (ha-ha-ha). I wonder if he lied about that because his wife happened to come with him to court and was not ordered on my motion to be sequestered (kept out of the courtroom) during his testimony. She was, like him, Asian, and smiled at me at one point before my case was called, while she and Mr. Tran were sitting in the jury box with the cop, and I in the peanut gallery with the other defendants. She seemed like a nice person and probably would be horrified to hear what passes for comedy in her beloved husband's KKK.

Another bit of perjured testimony which emanated from Mr. Tran's frightened and overactive imagination was his claim that I had made sexually offensive remarks to his female bartender. That lie was told during Mr. Tran's direct examination by prosecutor Danielowski. On cross, Mr. Tran backed down from his Perjury Perch when I challenged him on the point. I: "Mr. Tran, it's not your testimony, is it, under penalty of perjury, under oath, that you heard me say sexually offensive comments to your female bartender?" Tran: "Well, no, I just heard from somebody else you did." He couldn't remember who allegedly reported this to him. Although I can only speculate why he would tell this particular lie, my hunch is his wife is appalled at reports of what passes for humor in her hubby's KKK and to try to direct the heat of her irritation from him to me, Tran tries to throw the Sexually Offensive Remarks hot potato from him and his KKK to me, who only does clean jokes, albeit perhaps not funny. I'll let others make that call.

Tran also perjured himself by claiming I told him "I'll own this bar," on the night of my arrest, while I was waiting for the police to arrive and Tran was refusing to tell me who he was and who the permittee and backer of the KKK were. That alleged threat, which I never made, is the kind of thing laypeople hear about or see in the movies. It's maybe Tran's Big Fear, that maybe my true purpose in taking this case to trial is to set up a civil lawsuit for big money damages against Tran and the KKK. That's the farthest thing from my mind. I have no interest in owning the KKK or getting big money damages. I would like a negotiated settlement under which Tran has to allow me to return as I wish to the KKK on any given Monday, to do my comedy routines. I would of course agree in the future not to criticize any other comic, or their material, no matter how offensive to my perhaps old-fashioned ear. And I may need to take legal action to get such an agreement if Tran is unwilling to negotiate it with me directly, which I would prefer to the inefficient vehicle of the court system and administrative agencies system.

In the end, the State did not establish the elements of a simple trespass violation. But that didn't stop Gerry Cohen from denying my Motion to Dismiss the State's case when the prosecutor rested, and it didn't keep The Magistrate from finding me guilty of simple trespass and giving me a $99 fine, the maximum punishment for this violation, despite my giving Gerry a copy of an Appellate Court case which was on all fours (as we lawyers say with respect to other cases which have highly similar facts to the case on trial) with my case. Under that Appellate Court decision I was clearly not guilty of simple trespass.

I asked Gerry if he would please articulate the basis of his conclusion that I was guilty as charged. He refused to do so and probably for good reason. I was not guilty and he would have been hard-pressed to explain rationally the basis for his decision that I WAS guilty. He did stay the due date for payment of the fine so I could file an appeal to get a new trial before a Real Superior Court Judge, a man or woman who wears a black robe and has to be confirmed as a Superior Court judge by the Connecticut General Assembly.

After Gerry announced his decision, I shook Officer Abbate's and Mr. Tran's hands, said it was nice to see them both again, and headed directly to the Criminal Court Clerk's office where I filled out and filed a Magistrate Program Claim for a New Trial (De Novo). "De novo" means, in Latin, "from the new," which means the case will be re-scheduled for another date, at which time a real judge will again listen to the evidence, hear argument, and make a decision. Because the stakes are low in this case, I have no intention of putting the kind of investigative resources into my defense as I would if I were defending someone against a murder charge or handling a serious personal injury or other civil claim. For that reason, I am in the position of having to trust that witnesses against me will tell the truth and not fabricate perjurious testimony to try to win a conviction.

The clerk told me the trial before an actual judge will probably be scheduled for sometime in January, 2012. Even if I ultimately lose this case, which I don't expect I will, I want the trial process to be an actual trial, with due process and a judge who actually knows the rules of evidence and the substantive law of simple trespass. I did not receive such due process or such competent judging from The Magistrate. All the same, like every other experience in life, it's all fodder for a writer's craft.

And now, so I don't disappoint those of you who benefit from using my lifestyle as the occasion to stir your angst about your own lives, I give you herewith a few recent pictures showing the Crazy Old Dancin' Dude's Nightlife in the local Titanium Dance Club. My hunch is these sorts of photographic tableaus stir the maximum anxiety and angst in that group of "Bobs blog" readers when presented by me without comment. That maximizes the "blank screen for psychological protection" effect of the photographs. Here they are:

Titanium Club, November 26, 2011