It may have happened before, but if so, I’m unaware of it. Judge Ketanji Brown Jackson has now been confirmed by the Senate as a Supreme Court justice, but there’s a problem. The justice she would replace, Breyer, has yet to retire. He announced he would at the end of the term and there’s no reason to believe he won’t. But what if he changes his mind?

As Ed Whelan noted, the process for the appointment of a Supreme Court justice involves three distinct steps: Nomination, confirmation and appointment. KBJ has passed the first two, but the third won’t happen until the president signs off on her appointment, and that can’t happen until there is a vacancy. Until then, KBJ remains a judge of the D.C. Circuit. Continue reading →

New York’s default governor, Kathy Hochul, has reached consensus on a new budget that includes money for a new stadium for the Buffalo Bills (whoever they are), billions for child care, a state gas tax holiday and “strengthening bail restrictions.” Why, you ask, would something relating to bail be in a state budget? It’s an election year.

It was 2019 when the NY lege, filled with brand new assemblypersons and senators, made a host of reforms based not on knowledge and experience, but the fevered wishes of the most progressive wing of the criminal defense side of the courtroom, and an interesting experiment was begun. With this budget, the experiment comes to its first end. Continue reading →

To the binary mind, it can’t be possible. If a cop shoots and kills someone, it’s either a good shoot or a crime, whereupon the cop is either prosecuted or it proves the system is corrupt and evil cops can get away with anything. Minnesota police officer Mark Hanneman shot and killed Amir Locke. It was a bad shoot. But it was no crime.

“Amir Locke’s life mattered,” Attorney General Keith Ellison of Minnesota and Michael Freeman, the Hennepin County attorney, said in a joint statement. “He was a young man with plans to move to Dallas, where he would be closer to his mom and — he hoped — build a career as a hip-hop artist, following in the musical steps of his father.”

Continue reading →

No reasonable lawyer would argue that discovery in criminal cases in New York wasn’t a disaster before. It was a nightmare. The statutory disclosure was minimal and damn near worthless. It wasn’t until  the eve of trial, if that, that you would get any discovery that mattered, and by then it was far too late to make use of it. More to the point, since most cases were disposed of by plea, it never happened.

You never saw the Brady material before copping a plea. Hell, you rarely saw Brady material if you went to trial. The prosecutor’s response to the defense demand for Brady was invariably “the prosecution is aware of its duty under Brady and will comply should any such material exist.” There was never any Brady, at least as far as the prosecution was concerned. So if they decided it doesn’t exist, there was nothing to turn over. No problem. Continue reading →

Much as the overhyped condemnation of qualified immunity has given rise to a great deal of misunderstanding of why it deserves condemnation, but not what the limits of its condemnation should be, add Monell liability to the mix and the confusion goes wild. In most cases, any award or settlement is paid by the municipality, even though a § 1983 case is brought against the individual who committed the constitutional rights violation. It’s not that the municipality is obliged to pay, as it’s not a party to the action, but that it chooses to indemnify its employees or, it’s feared, it wouldn’t have any employees.

When it comes to a lying prosecutor, that creates a dilemma, as prosecutors enjoy absolute immunity in the performance of their prosecutorial function. When it comes to a lying prosecutor in the office of notorious Williamson County, Texas district attorney Ken Anderson, of Michael Morton notoriety, the situation is bad enough to make your head explode. Continue reading →

Academics have been increasingly diligent in their search for novel problems to “fix” with solutions that create new and potentially worse problems, Doug Berman at Sentencing Law and Policy notes a new law review article by Penn Prawf Kimberly Kessler Ferzan entitled “The Trouble with Time Served.” Who knew there was trouble?

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. Continue reading →

My German son, David Meyer-Lindenberg, whose writings you’ve seen here and at Fault Lines, and who was my editor here for years before Beth, has been busy over the past six weeks doing what he could to save the life of his best friend, Misha. I’ll let David explain.

Let me tell you about my best friend, Mykhailo – Misha – who’s fighting for his life and the freedom of his country, Ukraine. We met in 2018, when we worked together in Washington, D.C. I assumed he’d pursue a career in the States, but he told me he wanted to go back to Ukraine, that his country needed him.

When Russia invaded Ukraine, Misha put down his smartphone and picked up a rifle. Continue reading →

I’m reliably informed that it’s just a tiny little dive, the sort of place that runs out of food when more people show up than expected or where something in the kitchen breaks and  it has to close the doors. If you don’t care for that sort of treatment, then the First Street Restaurant isn’t for you.

Charlene Towe claims management at First Street would not book an event for her friend, Nora Potts, despite hosting a similar event for them the week prior. In a social media post that has gone viral, Potts claims they wanted to make the event a weekly occurrence, but that request was denied due in part to an employee feeling “uncomfortable.” Continue reading →

It’s hard to say whether there was some prior warning that this might happen. Did Georgia State English prof Carissa Gray tell her students that they either got to class on time or shouldn’t bother showing up? Had she warned them that if they came in late, they would be told to leave? Had late arrivals disrupted her classes too many times for her to tolerate?

Or was she just a needlessly mean scold who outrageously over-reacted? Continue reading →

Whether we call it irony or hypocrisy, it’s who “we” are today.

More than half of those surveyed in a new poll said the comedian was in the wrong when he joked about Jada Pinkett Smith’s shaved head at the Oscars — and do not fault actor Will Smith for smacking him on camera.

The Blue Rose Research poll found that 52.3% of people blamed Rock for the incident, compared to 47.7% who said Smith was out of line, according to a report published by Mediaite.com on Tuesday.

Continue reading →