My favorite Virginia prosecutor, Ken Lammers, takes me to task for arguing that there is no place for victim impact in the determination to release a prisoner on parole.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He’s not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia’s does, I’d agree. Unfortunately, it does not. NY exists in the indeterminate zone (That’s the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn’t turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

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David Gutierrez wasn’t a sympathetic defendant. Worse yet, there was little doubt that he did what he was accused of doing, shooting and killing Jose Valverde. He even told his wife about it. And his next wife as well. And when he went to trial, they testified against him.

In 2002, Defendant David Gutierrez shot and killed a man. Gutierrez disclosed this fact to his wife and threatened to kill her if she ever told anyone about the murder. They divorced a short time later. Gutierrez remarried and also told his second wife about the murder. By the time of his 2017 murder trial, Gutierrez was estranged from his second wife. At trial, he invoked the spousal communication privilege to preclude both women from testifying about his role in the killing. Gutierrez’s invocation of the spousal communication privilege prompts us to question its continued viability in New Mexico.

The spousal privilege, like attorney/client, priest/penitent, physician/patient, exists to permit communication without fear of compulsion to testify. The privilege predated this nation, and was explained 180 years ago by the United States Supreme Court in Stein v. Bowman. Continue reading →

There was good reason to fear the guy in the gray pickup on Interstate 10 in Texas. After being pulled over for not having a front license plate, the driver fired one round at Trooper Lee Meadow and took off.

As Meadow approached the open window on the truck’s passenger side door a handgun suddenly appeared and a single shot blasted over his right shoulder. Meadow dropped to the ground and the truck sped off. The trooper ran back to his cruiser, radioing he’d been shot at and was in pursuit of a gray Chevy Colorado pickup.

The call went out and police mobilized. Few things get them moving faster than someone trying to kill a cop. Kimble County Sheriff Hilario Cantu and Deputy Jack Noah heard the alert and prepared themselves to do their job. Continue reading →

Rarely, by which I mean I can’t recall it ever happening before, has anyone been outraged at the New York State Board of Parole for releasing a prisoner. The reason is plain; the Parole Board has long considered its roll to be a SuperJudge, deciding that the sentence imposed, say, 20 years to life which means the sentencing judge determined that after 20 years imprisonment, the defendant should be eligible for parole release, wasn’t harsh enough.

But as Appellate Squawk notes, Diane Piagentini not only took issue with the determination of the parole board, those pinko commie crime-lovers, but brought an Article 78 proceeding (the NY statutory equivalent of a writ) to annul its decision to release Herman Bell on parole.

The occasion was a lawsuit filed by the widow of Police Officer Joseph Piagentini, who was ambushed and shot to death during the 1970’s enthusiasm for killing cops in the name of the Black Revolutionary Army.  Herman Bell, a college student at the time, was convicted of murder and sentenced to 25 years to life. Now that he’s 70 years old and a changed man after serving 40 years in prison, he was finally released to parole.

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New York City schools may have a problem. Or they are what parents and students in New York City have made of them. This doesn’t mean there aren’t significant exceptions, but in trying to identify whether a problem exists that it needs fixing, or whether a fix will accomplish something beneficial, it’s valuable to remember that the existence of exceptions doesn’t negate the reality of the majority of students. We have a tendency to obsess over the outliers at the expense of the many these days. You may have noticed that.

The School Diversity Advisory Group formed by Mayor Bill de Blasio found a problem, that black and “Latinx” children were underrepresented in the City’s gifted schools.

Today they have become proxies for separating students who can and should have opportunities to learn together. Most “screened schools”and “Gifted and Talented” admissions
processes are in tension with meeting the goals in Making the Grade, including and importantly, the goal of effective educational innovation that takes advantage of existing research. These schools and programs often fail to serve disadvantaged students and Black and Latinx students and have often failed to take advantage of some of the research and innovations that have developed since their inception.

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In a peculiar effort to explain why some of the conduct brought to his door hasn’t resulted in SWAT teams breaking down doors, New York County District Attorney Cy Vance asserted something that every heartbroken neo-feminist twitter lawyer knows is an absolute lie.

“Under current law, a voluntarily intoxicated individual is not considered ‘mentally incapacitated,'” the letter reads. “Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent, even if a reasonable person would have understood that victim was incapacitated.”

It’s not that Vance doesn’t want to prosecute. He does. Or at least he claims he does. It’s that it’s a “loophole.” Continue reading →

There is no other word, none, that holds the power of the “n-word.” Lenny Bruce sought to take away its power, but failed. Instead, it’s become omnipotent. Elie Mystal explains that he can use it (though he doesn’t), but I can’t, and if I try to discuss the word with him, he’s going to vomit.

I can say it, you can’t, fuck you if that bothers you.

What he lacks in reasoning, he makes up for in passion. But as much as few of us would take issue with his view, because we don’t substantively disagree with him, it leaves a hole unfilled when it comes to certain academic issues. The New School’s Laurie Sheck found herself in that hole while teaching James Baldwin, but after a needlessly lengthy delay, relented. Continue reading →

It made the rounds of criminal law reform sympathizers, for lack of a better word. They “ooh” and “aww” at every outrage. They see everything as an outrage. Every cop is evil. Every law is oppression. Every interaction involving a black person is racist. They may not need to read the story behind the moment’s latest scream; they know already who is wrong.

For the most part, the cases, the conduct, the sentences are deeply wrong, and what happened should be the subject of public outrage. But the problem is that the information put out to whip up the outrage is false, half-truths crafted to mislead and delude. The people putting it out there know better, which means they know they’re lying and just don’t care.

Yesterday, a man was released after serving 35 years for robbing a bakery of $50.

Today, 2 NYPD officers accused of raping an 18 y/o woman in their van & bribery will receive probation.

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