While it’s unclear how exactly the memo from Manhattan’s new district attorney, Alvin Bragg, will play out in the courtroom, there was no doubt that it was going to be received poorly by the cops. The new police commissioner, Keechan Sewell, immediately invoked the First Rule of Policing.

Commissioner Sewell, who, like Mr. Bragg, was just a week into her job, said in her email to about 36,000 members of the department that she had studied the policies and come away “very concerned about the implications to your safety as police officers, the safety of the public and justice for the victims.”

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On the one hand, dead is dead. When a human being dies of other than natural causes at the end of a long life, we generally feel a sense of tragedy about it, as well we should. And yet it feels very different if the cause is something we believe to be beyond our control, such as cancer, as opposed to something we believe can and should be controlled, such as crime. That makes the comparison between deaths caused by Covid versus deaths caused by homicide seem deeply flawed. But is it?

More than twice as many people died from COVID just *last week* than the increase in murders he describes as “way up.” https://t.co/UfDWCloOPi

— David Menschel (@davidminpdx) January 10, 2022

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I started SJ in 2007, a very different time than now. There was much to say to a public woefully unaware of either criminal law or policing, the pendulum firmly planted deep into the “tough on law” side of the spectrum and people blissfully unaware of the bad things that happened in their name and were hidden from view.

Over the past few years, the pendulum damn near took off my head when it swung with vicious force in the other direction, the public (or at least a certain very loud cohort of it) adopting the view that cops were constantly slaughtering black people in the street with abandon and without consequences, that bad laws could be easily fixed with one cool trick and that simplistic slogans chanted by clueless but passionate people with too much time and education on their extremely soft hands could give us Utopia. Continue reading →

She may have been United States Attorney for the Eastern District of Michigan from 2010 to 2017, filling prisons with the righteousness of a champion for justice, but she caught a new gig after being dismissed in the regime change as MSNBC commentator. Barbara McQuade managed to adapt to her new persona by finding new hated people to condemn in place of the ones she spent her career convicting.

Some people steal money with guns. Other people steal money with lies. In a court of law, they’re all crooks. But not all crooks are treated the same by the justice system, a fact Elizabeth Holmes may be counting on when it comes to her sentencing.

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Musings of such a juror have been floated for many year, mostly from those who believe in jury nullification. They would pretend to be normies, perfectly ordinary folks who could, and would, be fair to all, to get on a jury. And then, boom, blow up deliberations with their activist belief in whatever purpose they served. Anti-cop? Anti-racism? Anti-government? And who could stop them? There they would be, having snuck past the gatekeeper by feigning fairness during voir dire and occupying the jury room.

What a glorious revolution it would be! After all, who can challenge the decision of a jury to acquit the guilty in defiance of bad laws, dishonest cops, an oppressive system? And of course it would never be used wrongly, as an affirmative bludgeon to assure the conviction of people hated, or crime reviled, lest someone despised walk free? Continue reading →

One of the defining characteristics of American democracy was that every four or eight years, we had a bloodless coup. A person, the most powerful person in the world, packed their bags and left the White House so another could take up residence. Maybe this happened with good tidings. Maybe there was bitterness. But either way, it happened without an attempt to prevent it, with at least the veneer of dignity.

It was an appalling vision, bodies storming the Capitol on January 6th, 2021. It was the culmination of months of preparation for failure, the sowing of a lie well in advance. It was part of a broader scheme that skirted the outer edges of law and reason closely enough to create the appearance of faux legitimacy to those who needed to believe but lacked the  knowledge or capacity to understand. Continue reading →

He took office on January 1. Alvin Bragg was elected District Attorney of New York County, taking the office once occupied by Frank Hogan and Robert Morgenthau, and most recently by Cy Vance, who decided to walk away. It is, by legend and history, perhaps the best district attorney’s office in the nation. And Bragg was elected to “fix” it.

Two days after he took office, Bragg issued a memorandum.

This memo sets out charging, bail, plea, and sentencing policies that will advance both goals [safety and fairness]. Data, and my personal experiences, show that reserving incarceration for matters involving significant harm will make us safer.

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I was sitting at the bar on 168th Street and St. Nicholas Avenue with my old buddy, Bobby. Bobby was a few years older than me, a suave Dominican guy who could salsa dance all night long. He pointed out a woman in the bar that he felt was very attractive, and made some sounds that Dominican guys occasionally make in her direction to let her know. Bobby then gave me the nudge as if seeking my confirmation.

I didn’t find her to be as “hot” as Bobby did. She had a pretty face, but she was fat. Not obese, but chubby. I told Bobby that I preferred thinner women, to which he explained the virtues of women who were more bass than treble. Continue reading →

One of the goofiest things about legal scholarship is that it’s published in student-run journals. Law students pass judgment on law profs’ articles, which would be remarkably funny but for the fact that getting published is the lifeblood of academia, particularly for pre-tenured academics who need to prove their mettle before they settle in for a life of turtlenecks, leather arm patches and sherry, provided they are never left alone in a room with a student of the opposite sexual orientation. But I digress.

Emory Law Journal invited Larry Alexander of the University of San Diego law school to write an article. He accepted. And you’ll never guess what happened. Continue reading →

To be frank, it came as little surprise that the New York State health department decided to be so flagrant in its rationing of Covid drugs.

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